In December of 2010 President Obama put pen to paper to settle long-standing water rights negotiations for four western tribes, including the Crow Tribe of southern Montana. The settlement finalizes the 1999 Crow Tribe-Montana Water Compact, giving the tribe 500,000 acre feet of water from the Bighorn River and 300,000 acre feet of water stored in Bighorn Lake. The settlement also includes $460 million to build a water treatment plant, irrigation systems, a hydroelectric plant and other infrastructure. Crow tribal leaders held a party at the National Museum of the American Indian in Washington, DC, to celebrate the settlement, and Senator Jon Tester, D-Mont., lauded it as well.
The last step is for the tribe to vote on whether to ratify the settlement. Yet while the water- and infrastructure-rich deal appears to be a great step forward for the tribe, some members view the new water rights -- and the controls that come with them -- with skepticism.
Water fuels the largely agricultural reservation, and the Crows sorely need new infrastructure. The Crow Irrigation Project is dilapidated. Some tribal members have to haul their household water and store it in cisterns. Their water systems, currently run by the Bureau of Indian Affairs, have been "badly managed for a century," says Heather Whiteman Runs Him, legal counsel for the tribe. The tribe will create permanent jobs to operate and maintain these systems once they are fixed.
It seems the massive Crow water distribution agreement is about to come off with hardly a hitch, but one group opposes it. A dozen Crow landowners walked slowly back and forth outside the BIA office in Billings, Mont., in late January holding signs with messages such as "Conspiracy DOI / BIA / Montana / Crow Tribal Administration Shame On You." They want tribal members to vote against the settlement, which they say strips landowners of their water rights by transferring the water from individuals to the tribal government and waiving individual court claims to water.
Water settlements like the one proposed for the Crow Nation are not unprecedented, says Whiteman Runs Him, but this settlement stands out because of its size. "Part of that is because of the federal government's mismanagement of water and irrigation on the reservation," she says. "That's why we've gotten a settlement of this size here." Since the 1970s, about 25 water settlements have passed through Congress, quantifying Indian water claims through negotiation rather than litigation. (A large settlement is in the works for Navajo rights to the Colorado River.) Tribal water rights hinge in part on a 1908 Supreme Court decision known as the Winters Doctrine that says reservation lands are entitled to enough water to "meet the purposes of the reservation."
The challenge is to decide how much water that is exactly. And while courts can quantify the water, the process may take decades and millions of dollars with uncertain outcomes. Negotiated settlements, while they come with their own expense of money and time, bring an end to uncertainty and give tribes the added benefit of federal funding to put their newly quantified water to use.
One of the sign-holders opposing the agreement was Colleen Simpson, a member of the Crow Allottee Association. She lives in Billings, Mont., but owns property on the reservation, land given to her grandmother when the Crow Allotment Act parceled tribal property in 1920.
"The tribe has access to all these attorneys and we've never had legal counsel," she says. She doesn't trust the tribe to fairly distribute the water. Simpson believes the tribal government "wants to get water away from the allottees. The chairman is not a landowner."
But Whiteman Runs Him says that while it may have worked for individual water users to access unquantified water rights for decades, times are changing. "The first thing to understand is that no one has an actual decreed right for water on the reservation," says Whiteman Runs Him. "Nobody actually has a right that's been validated by a court of law so it can change the way anyone else is using water upstream or down."
As more and more people enforce their water rights, the tribal water will have to be quantified one way or another. "We have to trust a government," she adds. "Do we want it to be the state or the tribe? This is what tribal government should be doing. This is absolutely a proper duty for them to handle this."
On February 22, the tribal government passed an act establishing how the ratification vote will happen. On Saturday, March 19, tribal members will vote at polling stations in each of the six reservation districts. If the tribe does ratify the settlement, the next steps will be to get the funding in place, set up a tribal water office and write a tribal water code. Within a year construction would begin on the water infrastructure projects.
Whiteman Runs Him is optimistic. "The tribe isn't out here to take anything away form its members. I've looked hard at this and I do believe it's in the best interest of the tribe."
Emilene Ostlind is the editorial fellow at HCN.
Image of the Bighorn River on the Crow Reservation courtesy Flickr user Michael R Swigart.