The Confederated Salish and Kootenai Tribes gained final approval of the CSKT-Montana Water Compact through the Montana Water Court last month, meaning the court formally resolved objections and is integrating about 300 tribal water rights into Montana’s statewide water rights system. That move protects those rights alongside state-issued rights.  

This final decree was the last step of the compact passage, making the settlement enforceable within Montana’s adjudication system. The approval issued on May 12 by Chief Water Judge Stephen Brown ends years of negotiations and litigation involving the tribal, state and federal governments and the possible unknowns if litigation had continued.  

Before the Montana Water Court issued this decree, the compact had been enacted by the U.S. Secretary of the Interior in 2021 after a long process of passage through the U.S. Congress in 2020, the Montana Legislature in 2015 and CSKT’s Tribal Council. 

“The substance of the Compact reflects the balance and sense of justice the parties recognized as necessary to reach resolution,” Brown wrote. “The water court also emphasizes that the government-to-government negotiations resulting in ratification of the compact by the Montana Legislature, and subsequently by the United States Congress, pursuant to the Montana Water Rights Protection Act, demonstrate the compacting process is consistent with the overall public interest.” 

Negotiating and passing the water compact has been a generational effort by the Tribes to resolve long-standing problems and protect water rights. The compact includes the quantification of tribal water rights guaranteed by the 1855 Hellgate Treaty.  

The compact also avoids further litigation and protects existing non-tribal water users from the uncertainty of tribal litigation. The compact included a $1.9 billion financial settlement to modernize irrigation infrastructure within the Flathead Indian Irrigation Project, a federal project managed by the Bureau of Indian Affairs. This settlement is also used for restoration projects to combat the FIIP’s damage to natural stream flows on the reservation.  

CSKT’s Natural Resources Department is already using settlement funds on irrigation projects and restoration projects across the reservation.  

Without the compact, around 10,000 claims to water rights, made by CSKT and the United States Department of Justice, would have been adjudicated, but with the approval from the water court, the claims are dismissed.  

According to the court’s final order approving the compact, the water court does not have unlimited jurisdiction over the compact. The court’s jurisdiction is set by state statute as interpreted by case law. The document also stated that the water court adjudicates “existing rights,” which include “Indian reserved water rights created under federal law.”  

During the preliminary decree, interested parties were allowed to file objections, and the court received 875. The court conducted 10 evidentiary hearings over several weeks at three different county courthouses in western Montana. 

Objectors had to show proof of "material injury" to a legally protected interest. While these objections did raise concerns about the operation, maintenance and fees associated with FIIP, the court ruled that “alleged injuries do not arise out of an operative compact provision,” because FIIP is operated by the BIA, not the Tribes.  

“The Compact did not modify the FIIP’s operations,” the document stated. “Rather, the Compact preserves the legal period of use for the portion of the Tribal Water Right (the ‘FIIP Water Use Right’) used by the FIIP.” 

The court concluded, "While many of the hearing objectors demonstrated they hold interests in the form of some type of state-based water right, contract right to receive water from the Flathead Indian Irrigation Project, or some other property interest, in no case did a hearing objector prove material injury to that interest connected to operation of the compact.”  

Cultural and tribal leaders say this ruling represents more than a legal agreement, according to a press release from CSKT communication director Rob McDonald. Tribal leaders describe this as a part of an ongoing effort to protect the natural resources, fisheries and way of life connected to the reservation. 

“Our water has always been our water, but now with the authority of the court, any questions or contests concerning our water should be answered summarily from this time forward,” CSKT Chairman Mike Dolson stated in the press release. 

Rich Janssen Jr., the head of CSKT’s Natural Resources Department, stated in the press release that this legal recognition and implementation of responsibilities are connected to sustaining the reservation and its natural resources for future generations.  

The compact signifies the continued survival of a people, culture and homeland to those waters, according to tribal leaders.  

“We hold close in our hearts' gratitude to the many years of advocacy by our elders who showed up at the countless meetings and fiercely articulated our rights and responsibilities as Séliš-Ql̓ispé people and to the CSKT water rights team for working hard to protect and honor the water,” Sadie Peone-Stops, director of the Séliš-Ql̓ispé Culture Committee, stated in the press release.