Hearings and Business Meetings

Sep 01 2006

01:00 PM

Full Committee Hearing- S. 3563

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

Ms. Julia Doney

President, Fort Belknap Community Council

Good afternoon Mr. Chairman, members of the Committee, and interested individuals.  Thank you for this opportunity to provide the position of the Tribes of the Fort Belknap Reservation and the Fort Belknap Community Council to the Committee on this important legislation.  I am Julia Doney, the duly elected president of the Fort Belknap Community Council, the governing body of the Gros Ventre and Assiniboine Tribes of the Fort Belknap Reservation.


The Fort Belknap Reservation:


          First, a few words about the Fort Belknap Reservation.  Pursuant to Treaties of the United States signed in 1851 and 1855, and the Act of Congress of 1888, the Fort Belknap Reservation is home to the Gros Ventre and Assiniboine Tribes.  Pursuant to the Constitution and Bylaws of the Tribes, the Fort Belknap Community Council is the governing body of the Tribes and tribal members.  The Council consists of ten elected representative, including the president.


          The Fort Belknap Reservation, in north-central Montana, lies approximately 50 miles east of Havre and is bounded by the Milk River on the North and the Little Rocky Mountains on the South.  The Reservation consists of 697,617.18 thousand acres of trust lands (both allotted and tribal), fee lands, and Montana state school lands.  The vast majority of the land ownership is by the United States in trust for the Tribes and for individual Native Americans.  Approximately 3,150 enrolled tribal members reside on the Reservation and 3,179 tribal members reside off the Reservation.


          Unemployment is extremely high on the Reservation, with the principle employers being the Tribal government and the United States.  Agriculture is the principle industry, with irrigation occurring on about 7,500 acres of the more than 10,000 acre Fort Belknap Irrigation Project in the North part of the Reservation and grazing, dry land farming, and minor amounts of irrigation occurring in the southern portion of the Reservation.   Precipitation ranges from about 20 inches per year in the southern mountains to 12 inches per year in the northern portion of the Reservation.


          Fort Belknap is home to the famous Winters decision, 207 U.S. 564, 1908, which is the seminal case in the “reserved water rights doctrine.”  The United States Supreme Court affirmed a lower court decision which determined that the Fort Belknap Tribes had a water right of 500 miners inches (125 cubic feet per second) to irrigate about 7,500 acres of the more than 13,000 acres of the Fort Belknap Indian Irrigation Project.  Although no water rights had been filed with the State of Montana under state law, the Court determined that the Tribes’ reserved water right had an 1888 priority date, earlier than upstream, non-Indian water diversions and the Court upheld an injunction against the junior diverters.


The Fort Belknap/Montana Water Rights Compact (Mont. Code Ann § 85-20-1001):


          In 1979, pursuant to amendments to the Montana Water Use Act, the State of Montana filed a general stream adjudication, In the Matter of the Adjudication of All Rights to the Use of Water, Both Surface and Underground, within the State of Montana, Montana Water Court.  As an alternative to litigating reserved water rights in the Montana Water Court, the amendments authorized the Montana Reserved Water Rights Compact Commission to negotiate reserved water rights with Montana Indian Tribes and federal agencies.


          In 2001, the state and the Fort Belknap Indian Community ratified a Compact (Copy attached as Exhibit 1) which settled the reserved water rights of the Tribes of the Fort Belknap Reservation between the State and the Community.  The Compact quantified the water rights, provided for administration and dispute resolution, provided protections to allottees and non-Indian water users in the Milk River Basin, established the Milk River Coordinating Committee to assure coordination and communication among all Milk River water users, provided for water right protection and enforcement throught the appointment of a water commissioner for the Milk River Basin, and provided for further negotiations among the United States, the Tribes, and the State on federal issues, such as federal financial contribution, an allocation of water from Tiber Reservoir, state/federal cost share, construction of mitigation features to protect Milk River Project.  Such three party negotiations have thus far not been successful and the Tribes and the State have decided to seek introduction of federal legislation ratifying the Compact and authorizing such actions as are necessary to implement the Compact.  A copy of the most recent draft of the legislation is attached as Exhibit 2.


The draft bill authorizes development of the tribal water right that is consistent with the tribal water development plan that has been approved by the Fort Belknap Indian Community’s counsel.   The Plan as developed would allow the Fort Belknap Indian Community to irrigate sufficient water to meet the tribal needs for the next 30 to 50 years.  The level of development is necessary to meet the needs of the Fort Belknap Indian Community and will allow the community to be a real player in the irrigated agricultural economy of the Milk River Basin.


S. 3563:


          The Fort Belknap Indian Community has been closely involved in the deliberations of the St. Mary Working Group.  We understand the history, background, and need for action to protect the St. Mary Water supply for the non-Indian water users of the Milk River Project.  In the spirit of community and being a good neighbor, the Community would like to be able to support S. 3563.


          However, on March 17, 2006, I, as President of the Fort Belknap Indian Community, provided written comments on a draft of S. 3563.  In my comments, I specifically requested that the Fort Belknap Reservation be treated similarly to the Blackfeet Reservation in the legislation and that provisions parallel to those for Blackfeet be included in the legislation for Fort Belknap.  To date I have received no response to my comments and request nor was the legislation modified to include the provisions which I requested.


          In addition, while the State and the Community have completed a Reserved Water Rights Compact for the Fort Belknap Reservation, much work still must be done to obtain Congressional ratification of the Compact and authorization of the implementation and funding for the Compact.  The State and Community have moved a long way toward agreeing on legislation, please see Exhibit 2.  However agreement is not yet complete nor has legislation been introduced.  It is anticipated that the Settlement Bill will be introduced at the next Session of Congress. The Fort Belknap Indian Community would request that the Settlement Bill and S 3563 be considered together in the next Session of Congress.


          In short, the Fort Belknap Indian Community believes that consideration of S. 3563 is premature and should be delayed until completion of reserved water rights negotiations in the Milk River basin.  It is simply unfair to the Tribes of the Fort Belknap Indian Community to provide yet another benefit to the non-Indian water users while deferring action on the reserved water rights of the Fort Belknap Indian Community.


          For the above reasons, the Fort Belknap Indian Community must oppose the enactment of S. 3563 unless and until legislation ratifying and authorizing the Fort Belknap/Montana Compact is moved forward at the same time as S. 3563 or joined with S. 3563.  It simply makes sense to solve all the basin’s water rights issues at the same time.


          Again, thank you for the opportunity to provide this testimony.  If you have any questions, please feel free to proceed.