Presentation Title

Tribal Water Rights and Water Conflicts in Montana

Authors' Names

Kristin Sleeper

Presentation Type

Oral Presentation

Abstract/Artist Statement

Access to water defines the arid American West and water management is an explicit effort to balance competing water uses. Differing water uses highlights the complexities in water management, and water conflicts will only increase as the climate continues to change. In Montana, the potential for decreasing mountain snowpack and thus less reliable irrigation capacity and river flows during the late summer months could have devastating economic, environmental, and cultural consequences. The need for water rights holders to have certainty about the quantities of water that will be legally available from year-to-year is clear. However, to have certainty, tribal and non-tribal, state-based water rights need to be integrated to ensure administration and enforcement are accurate and equitable.

Tribal water rights are rooted in indigenous sovereignty as well as treaties between Indian Tribes and the U.S. federal government. The case of Winters v. United States (1908) formally recognized tribal water rights, where the Supreme Court ruled that when the federal government set aside land for the Fort Belknap Indian Reservation, it impliedly reserved sufficient water from the Milk River to fulfill the purpose of the reservation. Tribal water rights, which are federal reserved rights, sit in tension with basic the basic principles of western water law. The legal doctrine of prior appropriation defines state-based water rights, where first in time is first in right, and the date of initial water use determines the superior right.

In 1979 Montana began a general stream adjudication to quantify all water rights, which ignited conflict and management impasses from both Tribes and existing non-tribal, state-based water rights holders due to the clash of appropriated rights, federal reserved rights, and values for water use. The state established the Reserved Water Rights Compact Commission to negotiate Tribal water rights and avoid the looming threat of litigation. However, despite the success of the commission, current research and judicial opinions suggest that difficult and persistent questions remain regarding how to quantify tribal water rights and how to integrate tribal compact rights and non-tribal, state-based water rights.

To assess where the current water governance system breaks down and leaves questions related to the integration of tribal compact rights and state-based water rights, this presentation will summarize the findings from a series of key informant interviews conducted with tribal lawyers, state administrators, legislators, lobbyists, hydrologists, landowners, and irrigators from across Montana. In addition, this presentation will describe recommendations for policymakers about the best ways to address water conflicts going forward. The results of this work are relevant to water users, the State of Montana’s Water Policy Interim Committee, as well as to Tribal Nations facing similar situations in Montana and beyond.

Mentor Name

Brian Chaffin

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Tribal Water Rights and Water Conflicts in Montana

UC 330

Access to water defines the arid American West and water management is an explicit effort to balance competing water uses. Differing water uses highlights the complexities in water management, and water conflicts will only increase as the climate continues to change. In Montana, the potential for decreasing mountain snowpack and thus less reliable irrigation capacity and river flows during the late summer months could have devastating economic, environmental, and cultural consequences. The need for water rights holders to have certainty about the quantities of water that will be legally available from year-to-year is clear. However, to have certainty, tribal and non-tribal, state-based water rights need to be integrated to ensure administration and enforcement are accurate and equitable.

Tribal water rights are rooted in indigenous sovereignty as well as treaties between Indian Tribes and the U.S. federal government. The case of Winters v. United States (1908) formally recognized tribal water rights, where the Supreme Court ruled that when the federal government set aside land for the Fort Belknap Indian Reservation, it impliedly reserved sufficient water from the Milk River to fulfill the purpose of the reservation. Tribal water rights, which are federal reserved rights, sit in tension with basic the basic principles of western water law. The legal doctrine of prior appropriation defines state-based water rights, where first in time is first in right, and the date of initial water use determines the superior right.

In 1979 Montana began a general stream adjudication to quantify all water rights, which ignited conflict and management impasses from both Tribes and existing non-tribal, state-based water rights holders due to the clash of appropriated rights, federal reserved rights, and values for water use. The state established the Reserved Water Rights Compact Commission to negotiate Tribal water rights and avoid the looming threat of litigation. However, despite the success of the commission, current research and judicial opinions suggest that difficult and persistent questions remain regarding how to quantify tribal water rights and how to integrate tribal compact rights and non-tribal, state-based water rights.

To assess where the current water governance system breaks down and leaves questions related to the integration of tribal compact rights and state-based water rights, this presentation will summarize the findings from a series of key informant interviews conducted with tribal lawyers, state administrators, legislators, lobbyists, hydrologists, landowners, and irrigators from across Montana. In addition, this presentation will describe recommendations for policymakers about the best ways to address water conflicts going forward. The results of this work are relevant to water users, the State of Montana’s Water Policy Interim Committee, as well as to Tribal Nations facing similar situations in Montana and beyond.