Hearings and Business Meetings

1 SUB Drive Havre, Montana Student Union Ballroom, Student Union Building, Montana State University 01:00 PM

Chief Earl Old Person

Chairman, The Blackfeet Tribe

Good afternoon. I am Earl Old Person, Chairman of the Blackfeet Tribe. I appear here today on behalf of the Blackfeet Tribe and its members.

I would like to express my appreciation to the Chairman of the Senate Energy and Natural Resources Committee, Pete Domenici, for the invitation to provide testimony to the Committee. I would also like to express my appreciation to Senator Burns whose landmark efforts to bring about the rehabilitation of the St. Mary facilities is the subject of the hearing today.

At the outset, I would like to state that the Blackfeet Tribe supports the rehabilitation of the St. Mary diversion facilities and conveyance works. The Tribe understands and is concerned that the diversion facilities and conveyance works may fail, and the physical and environmental impacts of such failure will be felt most directly by the Blackfeet people. There are also some very significant environmental impacts to Reservation lands and waters which have been caused by the Project that are a source of major concern by the Blackfeet. We understand the these environmental issues will be addressed and fixed as part of the rehabilitation effort. These include the siltation of St. Mary’s Lake, an environmental tragedy that is worsening over time, the dewatering of Swiftcurrent Creek which has a substantial impact on the fishery, including the threatened bull trout, the flooding at the confluence of Boulder Creek and Swiftcurrent Creek that occurs on an almost annual basis, and, of course, the leakage of the canal that has impacted tribal lands, resources and wildlife. The Blackfeet Tribe has long sought to have these environmental damages resolved and fixed, and we will push to make sure they are addressed as part of the rehabilitation process. In addition, the water system of the community of Babb has been affected by the operation of the project, and it is our expectation that this issue will be addressed as well.

At the same time, we do not believe the diversion and conveyance facilities can be rehabilitated unless the water rights of the Blackfeet Tribe and other claims relating to the Project are resolved. The water rights of the Tribe were never addressed when the Milk River Project was constructed. Neither were the Tribe’s water rights addressed when the United States entered into the 1909 Boundary Water Treaty with Great Britain, which allocated St. Mary’s and Milk River water between the United States and Canada, and which serves as the primary justification for the Milk River Project diversions. As far as the Blackfeet Tribe is concerned, it is our water that has been diverted for use by others for almost a hundred years, and we do not believe that anyone can establish otherwise unless a water rights compact is entered into or an adjudication occurs. Unless the water rights of the Blackfeet Tribe are determined, it is impossible to say that the historical capacity of the St. Mary Canal is available for diversion off the Reservation. And, if a greater capacity canal is constructed – and we understand that this is an option being considered – then it is even more critical that the Tribe’s water rights be determined.

Finally, despite promises by the federal government that the Blackfeet Tribe would benefit from any project that utilized St. Mary and Milk River waters, the Blackfeet Tribe has never received one benefit from the Milk River Project. We have suffered the environmental consequences of the Project, and we must live with the potential failure of the project on a daily basis. We see water being diverted from the Reservation year after year after year, but incredibly the Blackfeet Tribe receives absolutely no benefit from the project. It is high time that this situation changes, and we intend to insure that as part of any rehabilitation effort, the Blackfeet Tribe receives the benefits from the Project to which it is entitled, including an appropriate allocation of water from the Project, other project benefits and compensation for damages and use of Blackfeet water.

For these reasons, the Blackfeet Tribe expects to be a full partner in the rehabilitation process with the Federal government and the State government. It is our expectation that the Tribe will have an equal role in any decision-making process relating to the rehabilitation, and in approving all aspects of the rehabilitation effort, including preliminary studies, planning, design and construction. The Tribe also expects that it will be a full signatory to any final approvals of the final project. I will address these issues in more detail in my remaining remarks.

The Blackfeet Tribe is a sovereign Indian Nation residing on the Blackfeet Indian Reservation and exercising jurisdiction and regulatory control within the Reservation. The present Blackfeet Reservation is only a small part of the historical aboriginal territory of the Blackfeet Tribe, and our people have occupied these lands since time immemorial. The Aboriginal Territory of the Blackfeet Tribe encompasses much of the present State of Montana, and a large area north into Canada, including the St. Mary and Milk Rivers. The Rocky Mountains, and the streams and rivers that flow from the mountains, have long been one of the most culturally and religiously significant areas to the Blackfeet People, and they are a critical part of the oral history, creation stories and ceremonies. The present Blackfeet Reservation was established by Treaty with the United States on October 17, 1855 (11 Stat. 657).

The St. Mary’s and the Milk Rivers originate on and near the present day Blackfeet Reservation, and the Tribe has aboriginal rights to the waters of the two rivers that predate the formation of this country, and treaty rights that date at least from the 1855 Treaty. The Tribe’s water rights are currently the subject of negotiations among the Blackfeet Tribe, the Montana Reserved Water Rights Compact Commission and a Federal Negotiation Team. The adjudication of the Tribe’s water rights has been stayed by the Montana Water Court on a year to year basis in order to allow the negotiations to proceed.

The St. Mary facilities that are the subject of the proposed legislation are located on the Blackfeet Reservation. Since the construction of the facilities almost one hundred years ago, the Tribe has had, and continues to have, fundamental issues relating to water rights, land rights, environmental issues and damages claims that are directly related to the St. Mary facilities and the diversion of St. Mary River water for the Milk River Project. It therefore goes without saying that the Blackfeet Tribe is the primary stakeholder in any effort to rehabilitate the St. Mary diversion and conveyance works of the Milk River Project.

The Blackfeet Tribe has long viewed the massive diversion of St. Mary’s water from the Blackfeet Reservation for purposes of the Milk River Project, as well as the 1909 Boundary Waters Treaty which was used to justify the diversion, as violations of the rights of the Blackfeet people because the water rights of the Blackfeet Tribe were never considered or addressed in the Boundary Waters Treaty or in the diversions of water for the Milk River Project. This state of affairs is completely incomprehensible to the Blackfeet Tribe. Only the year before the Boundary Waters Treaty was concluded in 1909, the U.S. Supreme Court decided the most significant Indian water rights case in the United States, Winters v. United States, 207 U.S. 564 (1908). This case established and defined the fundamental doctrine of Indian reserved water rights that governs Indian water rights in the western United States for almost one hundred years. As this Committee knows, under the Winters doctrine, when an Indian reservation is established by the United States government, sufficient water is reserved to fulfill the purposes of the Reservation, both existing and future, with a priority date of the date of establishment. The Winters case, which arose on the Fort Belknap Reservation and involved the very same Milk River that is involved here today, remains the fundamental basis for Indian water rights in the United States. However, notwithstanding the contemporaneous Winters decision, there is absolutely no acknowledgment or consideration of the water rights of the Blackfeet Tribe in the diversion of water from the Blackfeet Reservation for the Milk River Project or in the Boundary Waters Treaty. The failure to recognize and take into account the Blackfeet reserved water rights puts the very validity of the St. Mary diversion and the Boundary Waters Treaty into question.

The complete disregard of the water rights of the Blackfeet Tribe is all the more incomprehensible because several alternatives for uses of the United States’ share of St. Mary’s and Milk River water were identified and analyzed, two of which would have benefitted the Blackfeet Tribe. One of the alternatives identified by the Bureau of Reclamation was a Blackfeet only project. The Bureau of Reclamation determined that 60,000 acres on the Blackfeet Reservation could be irrigated feasibly with St. Mary’s water. A second alternative was an all-American Canal route that would have routed the canal through the Reservation and provided benefits to the Tribe on its way downstream to other project users. The third alternative is the present Milk River Project. Ironically, the two alternatives that would have provided benefits to the Blackfeet Tribe were rejected in favor of providing benefits only to non-Indian irrigators downstream on the Milk River.

From the studies of these alternatives, the United States knew when entering into the Boundary Waters Treaty and in constructing the Milk River Project, that the Blackfeet Tribe had a reserved right to St. Mary’s water in an amount of at least that water necessary to irrigate 60,000 acres on the Reservation, or approximately 150,000 acre-feet. Nevertheless, these rights were never discussed or considered in the Boundary Waters Treaty, nor was the impact on the Tribes rights discussed or considered in the final Bureau of Reclamation project selected for construction.

At the time of Boundary Waters Treaty and when the Milk River Project was constructed, the Reservation had been in existence for more than fifty years, and it would have been impossible to ignore the fact that Blackfeet land and waters were involved. It also would have been impossible not to recognize that the Milk River Project, constructed to allow the United States to fully develop its St. Mary’s –Milk water supply, involved a major dam and reservoir and canal system located on the Blackfeet Reservation. It is therefore incredible that the United States did not involve the Blackfeet Tribe in the negotiations of the Boundary Waters Treaty or provide benefits to the Tribe as part of the Milk River Project.

If Blackfeet rights had been acknowledged and considered in the Boundary Waters Treaty, we do not believe that the Milk River Project would have ever been built. The project utilizes a substantial portion of the United States’ share of St. Mary's water, diverting it off the Blackfeet Reservation in a trans-basin diversion for use by non-Indian users far downstream from the Reservation. To this day, the Tribe receives no benefit whatsoever from the Project. At the same time, the Tribe has suffered greatly from environmental problems and damages that have been caused by the diversion facilities on the Reservation.

Among other things, these environmental problems and damages include the following:

• The current outlet structure at Sherburne Dam is unable to pass low flows during the winter months and as a result, Swiftcurrent Creek is completely dewatered and fishery habitat is lost, including habitat for the threatened bull trout.

• The banks of Swiftcurrent Creek have been eroding under the current release regime, and flooding occurs on nearly an annual basis at its confluence with Boulder Creek. Fishery habitat and private property is continually at risk as a result of the erosion and flooding.

• The Swiftcurrent Creek Dike, which was constructed by the Bureau of Reclamation in 1915, diverts all flows from Swiftcurrent Creek and Boulder Creek into Lower St. Mary Lake. These streams previously flowed across a large alluvial fan in the Babb area. As a result of the dike, sediment is continuously deposited into St. Mary Lake. The resulting delta has increased in size by 16 acres between 1958 and 1990. St. Mary’s Lake is a stunningly beautiful alpine lake and is a significant recreational area on the Reservation and source of economic revenue to the Tribe.

• The St. Mary Diversion Dam is a barrier to fish moving upstream, and fish are sometimes caught in the headgates at that location. These impacts may affect the threatened bull trout in addition to other fish species.

• The canal and siphons are in a significantly deteriorated condition and leakagesfrom the canal present environmental problems, and the potential of additional environmental problems if they fail.

A separate problem is the impact the operation of the St. Mary diversion facilities causes to the Babb Community water system. There is a known surface and groundwater interaction between water levels at Babb and surface water runoff carried in adjacent streams and water transported in the St. Mary’s Canal. This interaction affects the community water system and needs to be studied and addressed.

In addition to the water rights and environmental issues, the construction of the Milk River Project is directly contrary to, and in complete derogation of, the promises made to the Tribe that it would benefit from the development of St. Mary=s and Milk River water. These promises were made in return for the Blackfeet Tribe agreeing to allow a right of way for the Milk River Project facilities in an 1895 Agreement, ratified by Congress, and in the development of the two alternatives that would provide irrigation benefits to the Blackfeet Tribe, including the irrigation of 60,000 acres of land within the Blackfeet Reservation. Although that project was determined to be feasible, it was never built. Instead, the rights and interests of the Blackfeet Tribe were sacrificed in favor of downstream development far off the Reservation.

Further, the United States allowed non-Indians on the Blackfeet Reservation to file state water rights claims for essentially all the direct flow water rights on the North and South Forks of the Milk River during this same period. As a result there is no readily available water left for Tribal development in either watershed. The United States was obligated to discuss these circumstances with the Blackfeet Tribe and to take these circumstances into account. However, once again, the United States failed in its obligation to protect the rights of the Blackfeet Tribe.

There are also serious questions about the existence of valid rights of way for the project. Clearly, there can be no construction or reconstruction of the project without valid rights of way, and this issue must be addressed before the rehabilitation can go forward. Although the Bureau of Reclamation has been reviewing this issue for several years, there has been no final report on the rights of way and no discussion with the Tribe concerning this critical matter.

As this history shows, the Blackfeet Tribe has been systematically excluded from the process used to allocate the waters of the St. Mary’s and Milk Rivers, and the Tribe’s rights have been systematically ignored in the subsequent utilization of St. Mary’s water by the Milk River Project. Astonishingly, this disregard of the Blackfeet Tribe and the rights of the Tribe has continued up to the present time. There is still no serious discussion of the Tribe’s water rights, land rights and damages claims in the context of the rehabilitation of the project, and no clear benefits for the Blackfeet Tribe as part of the authorization for the project.

In order for the rehabilitation to go forward, the following must be done:

1. The water rights of the Tribe must be determined.

2. The land issues relating to the project must be determined and resolved, in particularthe right of way issues.

3. The Tribe’s damages claims against the federal government must be resolved. This includes damages relating to use of Tribal water, use of Tribal land, damages to Tribal land, and environmental damages caused by the Project.

4. The Tribe must receive clear benefits from the project as part of the authorization.

5. The Tribe must be a full partner in the rehabilitation effort, including the preliminary studies, the planning, design and construction.