Document Type

Article

Publication Date

Spring 2022

First Page

227

Volume

25

Issue

2

Source Publication Abbreviation

U. Denv. Water L. Rev.

Abstract

This article chronicles the negotiation and passage of the Confederated Salish & Kootenai Tribes Water Compact, ratified in 2020, which has created one of the most innovative water management regimes envisioned among sovereigns. The Compact’s journey toward ratification is extraordinary, as the parties over the span of three decades worked to overcome historically entrenched racism and political opposition to craft a model that would provide enough water for all peoples and the fishery. Compounding the challenge, the Flathead Reservation itself contains vast swaths of checkerboard land held by non-Indians and a major federal irrigation project that has permanently altered the hydrograph of the reservation—the sum total of which is a patchwork of state and federal water rights that could make successful water administration seem beyond reach. To overcome these odds, the Tribes, using Montana’s unique compact commission process, eschewed prior settlement models, remaining steadfast to a negotiation strategy premised on both western science and tribal customary values and knowledge, with a “stewardship for all” focus. After years of negotiation and outreach, along with multiple attempts in the Montana Legislature and multiple litigation challenges, the parties built a strong tribal-state-federal coalition that took the agreement all the way through Congressional ratification. The Compact is the ultimate perseverance story in water law, but its contents are equally worthy of attention, embracing tribal customary law, cultural protections, habitat restoration, and climate-responsive management regimes that protect Indians and non-Indians alike and reach beyond reservation boundaries to bolster ecosystem protections throughout western Montana. It is a forward-thinking management model worthy of study by all sovereigns confronting shared natural resources challenges. Ultimately, it advances the goal of reconciliation, inviting us to collectively acknowledge and remedy the historical injustices perpetuated on Tribes, turning us back toward right relationship with natural resources

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