BLACKFEET WATER RIGHTS COMPACT AND SETTLEMENT

1. BLACKFEET WATER RIGHTS COMPACT AND SETTLEMENT Western States Water Council Native American Rights Fund Symposium on Indian Water Settlements August 8-10, 2017, Great Falls, MT

2. Treaty with Blackfeet1855 .

3. Treaties and Agreements between the United States and the Blackfeet Tribe Treaty with the Blackfeet, 1855, Oct. 17, 1855, 11 Stat., 657 Act of April 15, 1874, 18 Stat. 28 Executive Orders – Jul 5, 1873, Aug 19, 1874, Apr 13, 1874, Jul 13, 1880 Agreement of 1888, ratified by the Act approved May 1, 1888 (25 Stat. 113), Agreement of 1895, dated September 26, 1895, ratified by the Act approved June 10, 1896 (29 Stat. 321, 353). 

4. BLACKFEET WATER RIGHTS COMPACT • In December 2007, after nearly two decades of negotiation concerning the Blackfeet Tribe’s water rights, the Nation completed a water rights compact with the Montana Reserved Water Rights Compact Commission. • In April 2009, the Montana State Legislature approved the Compact. • Ratified by Congress in December 2016 as part of the WIIN Act, P.L. 114-322, Title III, Subtitle G • Approved by the Blackfeet Membership in a referendum vote held on April 20, 2017

5. Blackfeet Reservation • 1.5 million acres -- 65-70% held by Tribe or Tribal members in trust and fee status • 17,000+ tribal members • 1.5 million acre feet of water in six drainages • Milk and St. Mary River subject to 1909 Boundary Waters Treaty, 32 Stat. 2448, which allocates water between US and Canada • Birch Creek, southern boundary, subject to 1908 decree contemporaneous with Winters, Conrad Investment v. United States, 161 F. 829 (9th Cir. 1908)

7. Ten Years Spent ChallengingState Court Adjudication • Federal Case filed April 5, 1979 • Montana Water Use Act Amended in 1979 to commence state-wide adjudication and establishing MT Reserved Water Rights Compact Commission • Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983) • State ex rel Greely v. CSKT, 219 Mont. 76, 716 P.2d 754 (1985) • Blackfeet Tribe v. Hodel, 634 F.Supp. 646 (D. Mont. 1986)

8. Blackfeet Compact Water Right • All religious and cultural uses • All existing uses recognized • Milk, Cut Bank, Two Med, Badger basins– all water less amount to fulfill state water rights • St. Mary – 50,000 AF plus Lee Creek, etc. • Birch – 100 cfs, plus 25 cfs instream flow • All lakes, ponds and wetlands on Indian lands

9. Other Rights • 45,000 AF in Lake Elwell (Tiber Dam) downstream from Reservation • A separate stipulation provides an instream flow right of the entire natural flow of all streams within the 1895 ceded area of Lewis and Clark National Forest and Glacier National Park • Some state rights protected through no-call provisions

13. How much water? (Acre-feet) Approximately 800,000 AF

14. Tribal Water Right Satisfies Rights of the Tribe and Tribal Members and are Administered by the Tribe • The Tribal Water Right includes water for Tribal trust and fee lands and Tribal Member trust and fee lands. • 1887 Allotment Act – allottees may use a just and equitable share of tribal water for irrigation • The Tribal Water Right is administered under the Tribal Water Code which will be amended upon final settlement

15. Administration • State water rights are administered by the State and Tribal Water Rights are administered by the Tribe • 3 – members Compact Board hears and resolves disputes – one appointed by Governor, one by Chairman, one by the other two • All Reservation Basins are closed to new state water right permits

16. Marketing Leases/Permits On Reservation – authorized generally Off Reservation - water can be marketed from • storage and from water already developed and put to use • Birch Creek marketing is limited to the additional flow right at State Hwy 358 bridge and from instream flow amounts • From Tiber Dam Other • First right of refusal for existing state users – must meet price and terms • Requires reasonable notice to State if less that 1-yr lease; 120 day notice for longer leases

17. Blackfeet Water Rights Settlement Act • Ratifies the Tribe’s Water Rights Compact with the State of Montana • Provides funding in the amount of $420.2 M • Resolves water-related claims against the United States • other federal/tribal issues

18. Settlement Funding

20. State Funding Total of $49M: • $14.5 M under Birch Creek agreement to provide 15K AF to PCCRC for 25 years • $.5 for Four Horns engineering study • $20 Four Horns pipeline • $14 M PCCRC mitigation after 25 yr Birch Creek agreement expires

21. Interior Review Compromises • Types of project • Amount of funding • Waivers of claims • St. Mary right of Way • 5000 AF of St. Mary Water • Withdrawal of objections to BOR water rights in St. Mary and Milk Basins • Tiber Allocation • Ft. Belknap Milk River water right • OMB Sign-off

23. Implementation Steps • Execution of Compact by Secretary • Execution of Waivers • Approval by Montana Water Court and entry of Decree • Various agreements to be entered • Amended Water Code • Appropriation of Funds

24. State Adjudication of State Water Rights Currently Underway • In all Basins on the Reservation – St. Mary, Milk, Cut Bank, TwoMed/Badger/Birch • Non-Indian water right claims – primarily irrigation, stock water, domestic use, a few commercial, Cut Bank and Browning municipal water • Issues – over-claimed, overlap on trust land, no private rights in Blackfeet Irrigation Project, priority date • Some Tribal Members filed for state water rights – most will withdraw state law claims and receive tribal water permits instead