Frequently Asked Questions
Find answers to the most common questions about the water compact and settlement act.
What is a treaty reserved water right (Winters right)?
Indian tribes have unique rights to water that are reserved by the tribe when the tribe’s reservation is established by treaty or other means. The amount of water reserved is the amount that is needed to fulfill the purposes of the reservation for both the present and the future. The water is reserved as of the date of the treaty and cannot be lost even if it is not used.
Does the Blackfeet Tribe have Winters right?
The tribe has Winters rights that were reserved by treaty in 1855. Water was reserved by the tribe to fulfill the homeland purpose of the Blackfeet Reservation, including irrigation, stock water, domestic, commercial, industrial and municipal uses, fish and wildlife, cultural uses and other uses necessary to provide a homeland for the Blackfeet People.
If the tribe already has water rights, why do we need a water rights compact and settlement?
While the tribe has a Winters water rights, the amount or quantity of the Winters right has never been determined. In the 1970s, the State of Montana began a state-wide water adjudication to determine all water rights within the state, including tribal water rights. While all of the Montana tribes and the United States challenged Montana’s adjudication, in 1983 the U.S. Supreme Court decided that the Montana adjudication could go forward. At that point the tribes had to decide whether to litigate the quantity of their water rights in state court or negotiate a water rights compact. All of the Montana tribes have now negotiated compacts with the state.
Why did the tribe negotiate its water rights instead of litigate?
The tribe made the decision to negotiate its water rights because:
- We recognized we could obtain more water and significantly greater benefits through settlement.
- We wanted to have more control over the process with the ability to set the agenda and manage the outcome.
- If we litigated our water rights in state court, a single state court judge would decide our water rights based on unfavorable litigation standards.
- Litigation would be limited to a determination of the amount and priority date of water, and would not include any funding to put the water to use or for other water related projects.
What is the tribe’s water right under the compact?
The Tribe is entitled to nearly 800,000 acre-feet of water on average annually from the following drainage basins:
- Milk River
- Cut Bank Creek
- Badger Creek
- Two Medicine
- Saint Mary River
- Birch Creek
Blackfeet also has the right to all surface and groundwater on the Reservation — including the water in lakes, ponds and wetlands — and also has an allocation of water from Lake Elwell (Tiber Dam) in the amount of 45,000 acre-feet.
What is the tribe’s water right by drainage basin?
- Milk River, Cut Bank Creek, Two Medicine, and Badger Creek: All surface and ground water less the amount needed to fulfill state water rights.
- Saint Mary: 50,000 acre-feet, plus all groundwater, plus all of Lee Creek and Willow Creek less the amount to fulfill state water rights, and all the remaining U.S. share under the 1909 Boundary Waters Treaty after diversions for the Milk River Project.
- Birch Creek: An amount equal to approximately 62,000 acre-feet (125 cfs), which includes water for irrigation and instream flow. The tribe also has the right to all remaining flows at the Hwy 358 Bridge.
How much is an acre-foot of water?
An acre-foot of water is the amount of water that covers one acre of land one foot deep. One acre-foot equals 325,851 gallons.
The tribe’s water right is equal to approximately 254 billion gallons of water, or enough to fill more than 970 football stadiums.
Do the tribe’s water rights include water for tribal members?
The tribe’s water rights include water rights for individual Indian lands held in trust and for individual Indian fee lands.
How will the tribe benefit from the water compact?
The tribe will have a reliable, long-term water supply that can be used for our growing population, for domestic, commercial, industrial and municipal needs, for farming and stock, for instream flows (the amount of water flowing in a stream) and wildlife habitat, for cultural uses and any other use determined by the tribe to be appropriate. Water that is not used by the tribe can also be leased or marketed to others on and off the reservation.
What other benefits will the tribe receive?
The compact and settlement act provide more than $470 million in funds from the United States and the State of Montana for water related projects, including irrigation and community water systems, funds for the Blackfeet Irrigation Project, energy projects, land and water acquisition, recreational lake development, fishery enhancement and protection, environmental improvements and more. The tribe will also have the exclusive right to develop hydropower at certain federal facilities.
Who will administer water rights on the reservation?
The tribe will have all authority to administer tribal water rights on the Reservation. The state will administer state water rights. Disputes between tribal water rights and state water rights will be brought before a special compact board made up of tribal, state and federal representatives.
Does the settlement act resolve water related claims against the federal government?
With some exceptions, the federal settlement legislation resolves historical water related claims against the federal government, including water related claims for, among other things: (1) the diversion of St. Mary water off the Blackfeet Reservation to the Bureau of Reclamation Milk River Project; (2) the environmental and resource damages caused by the Bureau of Reclamation St. Mary diversion facilities; (3) claims relating to failure to protect Blackfeet water rights in the 1909 Boundary Waters Treaty; (4) claims relating to the Blackfeet Irrigation Project; and (5) the failure of the United States to protect the tribe’s water rights from development by others, particularly on Birch Creek, Cut Bank Creek and the Milk River.
What is the Birch Creek Agreement?
The Birch Creek Agreement is a separate agreement that addresses impacts to non-Indian Birch Creek water users as a result of the compact. Under the Agreement, the tribe will not develop any new Birch Creek water uses for 15 years, and the Four Horns Reservoir will be improved and a pipeline built to provide 15,000 acre-feet of water to Birch Creek water users for a total period not to exceed 25 years. As compensation, the state will pay the tribe $14.5 million, and will contribute $20 million for the pipeline project. The tribe will own and operate the pipeline, and can use it after the 25 years for its own use or to continue to market water to Birch Creek water users or other water users.
Are there Montana Water Court proceedings now underway on the Blackfeet Reservation?
As the Blackfeet Compact and Settlement Act move forward through the approval process, the Montana Water Court has begun proceedings to adjudicate state water rights on the Reservation. Most state water right claims on the Reservation are non-Indian claims. The tribe, along with Bureau of Indian Affairs, has objected to many of these claims and these objections will be decided by the Montana Water Court.
The present proceedings do not involve the water rights of the tribe. However, some tribal members have filed state water right claims, and these state water right claims will also be decided by the Montana Water Court. The tribe and the United States have objected to tribal member state water right claims on the ground that such water is part of the tribal water right. The tribe also maintains that the tribe, not the state, has jurisdiction and authority over all water rights of tribal members. Tribal members with state water right claims are urged to contact Jerry Lunak, Water Resources Director, to discuss these claims.