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

Abstract

I. INTRODUCTION Established on September 7, 1916 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. …