The 1997 water rights settlement between the state of Montana and the Chippewa Cree tribe of the Rocky Boy's Reservation: the role of community and of the trustee.

• Author: Cosens, Barbara A.

I.

INTRODUCTION

Established on September 7, 1916 "for Rocky Boy's Band of Chippewas and ... other homeless Indians,"(1) the Rocky Boy's Reservation is home to over 3,000 Tribal members. The Reservation's annual population growth rate is in excess of three percent.(2) The Reservation has an estimated seventy percent unemployment. Forty-nine percent of the population lives below the poverty line.(3) Although economically dependent on agriculture and ranching, the Reservation's irrigable land receives only twelve inches of precipitation per year.(4)

Water right settlement negotiations began in 1992 among the Chippewa Cree Tribe of the Rocky Boy's Reservation, the State of Montana and the United States as part of the state-wide adjudication of water rights. The State held an initial public meeting to inform off-Reservation(5) water users of negotiations at which several hundred citizens expressed concern that the process could not effectively consider their needs. A few expressed their desire for termination of the Reservation and their belief that government representatives were part of an undefined conspiracy.

On January 9, 1997, the Tribal Council of the Chippewa Cree Tribe of the Rocky Boy's Reservation passed a resolution approving the water rights compact between the Tribe and the State of Montana, thus settling the Tribe's claims to water within the State of Montana. The Compact passed the Montana Senate on a 50-0 vote, and the Montana House of Representatives on a vote of 91-8. Despite Rocky Boy's Reservation location in an area that has experienced fractious race relations for over 100 years, it received the broad-based support of the Tribe, off-Reservation irrigators on all drainages shared with the Reservation, including downstream irrigators on the heavily used Milk River, surrounding communities, local legislators, county commissioners, and rural water users who, as an outgrowth of the Compact, have joined with the Tribe to solve the drinking water quality and supply problems in the region as a whole. On April 14, 1997, Montana Governor Marc Racicot signed the Compact into State law.(6)

The United States Department of the Interior ("Interior") opposed the Compact, despite involvement in the negotiations.(7) Some individuals regarded the federal opposition as a failure of the United States to fulfill its trust responsibilities. Others saw the federal stance as symptomatic of a breakdown in the federal process for participation in negotiations to settle Indian reserved water rights.(8) To most observers it is merely another example of the inability of Interior to effectively participate in the negotiation of Indian water rights settlements under the rigid, and to some, inappropriate guidelines set forth in the Criteria and Procedures for Negotiation of Water Rights Settlements.(9) Furthermore, Congress has not ratified a single Indian Water Rights Settlement during the Clinton administration. The failure of the federal government to effectively participate in and support settlement discussions calls into question its ability to fulfill its role as trustee to the many Indian Tribes still struggling to settle their water rights.(10)

This paper is an exploration of the Compact, the process that led to this historic agreement, and the breakdown in the federal participation.

II.

THE LEGAL MEASURE OF RESERVED WATER RIGHTS ASSOCIATED WITH INDIAN RESERVATIONS

Allocation of water for use on private land and on public land that has not been reserved for a specific purpose is governed, in general, by state law.(11) However, the federal government may reserve waters under federal law and, in doing so, exempt them from appropriation under state law.(12) In 1908 the United States Supreme Court held that the federal government reserved water by implication when it reserved land for the Fort Belknap Indian Reservation as water was necessary to fulfill the agricultural purposes of that Reservation.(13)

Federal law determines the volume and scope of reserved water rights.(14) Determinations are made based on the historic documents associated with a treaty, executive order, or statute creating the reservation.(15) The purpose for which the reservation was established determines the quantity of water reserved.(16) Courts generally focus analysis of reserved water rights on either agricultural or fisheries purposes.(17) Although tribes have often asserted a "homeland" purpose, courts have either rejected this approach(18) or considered a quantification of reserved water for agriculture to be of a sufficient quantity to take into account future needs and thus implicitly provide sufficient water for a homeland purpose.(19)

However, the major legal and factual difficulty faced by the courts in considering reserved water rights disputes has not been that of purpose, but instead the measure of the water right necessary to fulfill that purpose. For example, in a dispute over allocation of water in the Colorado River between Arizona and California, the United States asserted claims for reserved water rights on behalf of five Indian Reservations.(20) In adopting a "practicably irrigable acreage" ("PIA") approach the Court accepted the findings of the Special Master rejecting Arizona's proposal to quantify reserved rights on a "reasonably foreseeable needs" basis -- a standard that would have tied the quantification of the rights to population projections.(21)

The Court had the opportunity to revisit the PIA standard when it granted certioari on the quantification of the reserved water rights of the Shoshone and Bannock Tribes of the Wind River Reservation. However, following recusal of Justice O'Connor from the case, an evenly divided Court simply affirmed the lower court's use of the PIA standard.(22) Thus, the PIA standard remains the basis on which most parties evaluate their risks should litigation occur.

A court has never considered the appropriate measure of a reserved water right when the PIA standard leaves a tribe with too little water to irrigate sufficient land for even its current needs and when water supply is insufficient to provide a reliable source for drinking water for anticipated population growth.(23) Such is the case on the Rocky Boy's Reservation. Agricultural land is limited and water supply consists of high spring runoff and very low stream flows during the remainder of the year.

III.

RESERVED VERSUS APPROPRIATIVE WATER RIGHTS

Similar to most Western states, Montana follows the doctrine of prior appropriation.(24) A water right exists to the extent of application of water to a beneficial use.(25) In times of shortage, allocation occurs on the basis of priority.(26) The right of the earliest appropriator on a stream is satisfied first. Junior appropriators take the remaining water, if any. This approach leads, eventually, to full appropriation on most streams, and over appropriation in water-short years. Private parties generally initiate allocation in water short years; senior rights place a "call" on the river to prevent diversion by upstream junior water users.(27)

Reserved water rights are defined by federal, not state, law.(28) The Colorado Supreme Court summarized the basic incompatibilities between reserved and state-based water rights by noting the following attributes of a reserved water right:

(1) the right may be created without diversion or beneficial use; (2) the priority of the right dates from the time of the land withdrawal and not from the date of appropriation; (3) the right is not lost by nonuse; and (4) the measure of the right is quantified only by the amount of water reasonably necessary to satisfy the purposes of the reservation.(29) Appropriative and reserved rights are based on two fundamentally distinct policy objectives. The doctrine of prior appropriation seeks to protect, and therefore encourage, development of water.(30) This approach was adopted in the late 1800's when the West was focused on resource exploitation, particularly mining.(31) Necessary to economic development of these arid regions was protection of water development investments.(32) Thus, a policy of "first in time, first in right" arose. Prior appropriation was not designed to promote community through sharing of scarce resources, nor to provide for long-term sustainable use by incorporating planning for future needs. In contrast, the recognition of current and future rights that will accommodate changing need is fundamental to reserved water rights. These rights recognize that a reservation is a finite area in which people intend to settle for generations.

The West has changed since the adoption of prior appropriation law. Water users now view their ranches and communities as the family home for generations to come. Many off-Reservation water users feel that reserved rights that accommodate future needs are inequitable. However, they fail to recognize that the inequity is the result of the state law of prior appropriation, not of the federal law of reserved water rights.

Tribes also see inequities. The clear criteria for quantification of state-based rights may afford greater protection on a practical, daily basis than the vague standards which define unquantified reserved rights. A quantified right is more readily enforced and protected.

In practice, reserved and prior appropriation water rights are only compatible to the extent that the reserved water is developed immediately following creation of a reservation. The right to assert a senior priority date when exercising new, previously unquantified uses long after a reservation was created flies in the face of the most fundamental practical feature of prior appropriation -- that junior water users take the river as they find it and can assume all senior rights are accounted for in the observed stream flow.(33) Even though the Winters Doctrine arose in 1908, that the United States did not begin actively to assert reserved water rights on behalf...