2 October 2014

Flathead Water Compact will not — cannot — be a “forever deal”

Recommended Reading: Boundaries of the United States and the Several States, U.S. Geological Professional Paper 909.

Revised slightly on 16 April 2015. If finally approved, will the Flathead Water Compact be the final word on water issues involving the treaty rights of the Confederated Salish and Kootenai Tribes? A lot of people think so, among them Republican State Rep. Steve Lavin, who’s running for re-election in House District 8, the new district on the western side of Kalispell. Reports the Daily InterLake:

“This is a forever-type deal,” he said. “If this is something we choose to go forward with, there need to be no uncertainties, because there could be huge ramifications.”

I don’t share Lavin’s certainty of the compact’s eternal existence. I hope it will be good enough to last that long, but a more realistic hope is that it will be good enough to last a good long time before adjustments are necessary.

Moreover, supporters and opponents of the compact are wrong to assert it can be forever.

First, governments cannot make agreements that are forever. Doing so would violate the principle that governments, legislatures, people cannot deny future governments, legislatures, peoples, the power to modify previous laws, including treaties, when that becomes necessary.

Second, agreements between human beings address exigent concerns, often at the cost of deferring less pressing issues for future resolution. Eternal agreements exist only in the otherworldly realm of religious belief.

Two treaties illustrate those principles as well as bear directly on the CSKT Compact.

The Treaty of 1818 between the United States and the United Kingdom resulted in the joint occupation of the Oregon County (and addressed other issues), which lay between the the north latitudes of 42° and 54° 40’ and west of the continental divide, but did not settle counter claims to the territory. A settlement race commenced, as did increasingly loud rattling of sabers. “Fifty-four forty or fight,” cried Americans.

The United States and the United Kingdom negotiated the Oregon Compromise in 1846 (treaty, 12MB PDF), averting war, always a good thing, but leaving the two nations with a boundary along the 49th parallel from Puget Sound to the continental divide. Boundaries that follow lines of latitude create problems that require future agreements. The United States and Canada still negotiate agreements on transboundary issues such as watershed management.

After the Oregon Compromise averted war, the United States turned to organizing the settlement of what are now the states of Oregon, Washington, Idaho, western Montana, and a bit of Wyoming. That required reaching accommodations with the tribes of American Indians living within region. Many of the treaties, including the Hellgate Treaty (PDF), with the Indian nations that opened land to settlement by non-Indians were negotiated by West Point graduate Isaac Stevens, the first governor of the Washington Territory. Stevens, who died in the Civil War, also surveyed the railroad route through Stevens Pass.

The Hellgate Treaty establishing the reservation for the Confederated Salish and Kootenai Tribes guaranteed the CSKT off-reservation hunting and fishing rights, a feature common to many of Stevens’ treaties, and a feature distinguishing that treaty from treaties with other Indian nations in Montana.

The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.

Hellgate was just the beginning of a long history of agreements and laws designed to execute the agreement and develop the reservation, converting the CSKT to an agrarian society. Some of that history is ugly, replete with efforts to deny the CSKT their rights.

Concurrent with the Hellgate Treaty and subsequent agreements and laws was the development of water rights law including the Winters doctrine.

Montana is now at a point where water compacts that are expected to endure for decades have been concluded with all of Montana’s Indian nations except the CSKT, for which the CSKT Water Compact is pending and in my judgment, ready for approval. Not everyone agrees — and to the detriment of everyone, extreme Republicans have made it partly a partisan issue.

But the CSKT Water Compact is not a forever compact, irrevocable, immutable, enduring until Planet Earth dies and disappears. It cannot be. And it will not be. Advocates for and against it should stop asserting that it is, even in an aspirational sense.