WEBVTT 00:00:00.000 --> 00:00:02.470 [SQUEAKING] 00:00:02.470 --> 00:00:03.952 [RUSTLING] 00:00:03.952 --> 00:00:05.928 [CLICKING] 00:00:20.383 --> 00:00:22.050 STUDENT PRESENTER: Thank you, everybody. 00:00:22.050 --> 00:00:25.880 I'm going to talk today about the Confederated 00:00:25.880 --> 00:00:31.460 Salish-Kootenai tribe, which I'll refer to as CSKT, tribe's 00:00:31.460 --> 00:00:35.120 compact with the state of Montana, to which the US 00:00:35.120 --> 00:00:36.950 government is also party. 00:00:36.950 --> 00:00:39.020 This compact kind of evolved over 00:00:39.020 --> 00:00:41.780 the course of a few decades and actually just started 00:00:41.780 --> 00:00:43.070 to be implemented this year. 00:00:43.070 --> 00:00:46.220 So we'll talk about how they got there. 00:00:46.220 --> 00:00:48.232 Just to start, this is Montana. 00:00:48.232 --> 00:00:50.690 These are the various water basins in the state of Montana. 00:00:50.690 --> 00:00:52.460 This little area in the corner here 00:00:52.460 --> 00:00:53.627 is the Flathead reservation. 00:00:53.627 --> 00:00:56.570 So it's actually a fairly large chunk of land. 00:00:56.570 --> 00:00:59.690 The water rights that we're talking about today 00:00:59.690 --> 00:01:03.082 really cover the entire region of Northwest Montana, mostly 00:01:03.082 --> 00:01:04.790 west of the Continental Divide, but there 00:01:04.790 --> 00:01:06.207 are some rights that were affected 00:01:06.207 --> 00:01:08.350 by the treaty that actually are on the east side 00:01:08.350 --> 00:01:10.440 of the Continental Divide. 00:01:10.440 --> 00:01:13.830 So we're going to talk about the history, the kind of way 00:01:13.830 --> 00:01:15.870 that these water rights came about, 00:01:15.870 --> 00:01:17.550 some of the context of the negotiations. 00:01:17.550 --> 00:01:19.830 Talk a little bit about the negotiation topics, 00:01:19.830 --> 00:01:20.958 then where they ended up. 00:01:20.958 --> 00:01:22.500 And even as I go through the history, 00:01:22.500 --> 00:01:27.870 I hope to explain, because some of the disputed rights, a lot 00:01:27.870 --> 00:01:30.550 of the questions go back to the origins of those rights, 00:01:30.550 --> 00:01:32.820 I hope to bring up some of the different disputes 00:01:32.820 --> 00:01:37.260 in the historical context and also kind of begin 00:01:37.260 --> 00:01:40.530 to shed light on the present status of them 00:01:40.530 --> 00:01:42.780 and how they came up with the negotiations based 00:01:42.780 --> 00:01:44.380 on that context. 00:01:44.380 --> 00:01:47.070 So to quickly look a little bit at the history, 00:01:47.070 --> 00:01:50.250 the Treaty of Hellgate, which is the treaty that 00:01:50.250 --> 00:01:52.800 created the Flathead reservation in Northwest Montana, 00:01:52.800 --> 00:01:54.630 it's about a million and a quarter acres, 00:01:54.630 --> 00:01:59.160 was signed in 1855 by representatives of the US 00:01:59.160 --> 00:02:02.940 as well as the tribes that were party to the treaty. 00:02:02.940 --> 00:02:06.150 The treaty gave them the rights to that land, 00:02:06.150 --> 00:02:09.840 but it also included an unusual line 00:02:09.840 --> 00:02:12.900 which has become very important that was not 00:02:12.900 --> 00:02:14.670 included in any of the other treaties 00:02:14.670 --> 00:02:16.200 that the US government negotiated 00:02:16.200 --> 00:02:17.430 with the state of Montana. 00:02:17.430 --> 00:02:20.070 This line is Article III: "The exclusive right 00:02:20.070 --> 00:02:22.050 of taking fish and all the streams 00:02:22.050 --> 00:02:25.260 running through or bordering said reservation is further 00:02:25.260 --> 00:02:26.730 secured to said Indians. 00:02:26.730 --> 00:02:29.880 As also the right of taking fish at all usual and accustomed 00:02:29.880 --> 00:02:33.340 places in common with citizens of the territory." 00:02:33.340 --> 00:02:35.850 So this provision maintained that the tribes 00:02:35.850 --> 00:02:37.890 had the rights to use water that passed 00:02:37.890 --> 00:02:40.050 through some of the lands that they conceded. 00:02:40.050 --> 00:02:43.110 The part that says "the right of taking fish 00:02:43.110 --> 00:02:45.678 at all usual and accustomed places." 00:02:45.678 --> 00:02:47.220 This is the basis of what have become 00:02:47.220 --> 00:02:50.050 to be known as the tribe's off reservation water rights. 00:02:50.050 --> 00:02:51.570 And we'll talk about what those are 00:02:51.570 --> 00:02:54.120 and how those became contentious. 00:02:54.120 --> 00:02:57.240 As was often the case with treaties of Native tribes, 00:02:57.240 --> 00:02:59.280 the US government violated the spirit 00:02:59.280 --> 00:03:01.020 and the letter of the Hellgate treaty 00:03:01.020 --> 00:03:02.730 within a number of decades. 00:03:02.730 --> 00:03:04.440 The kind of general history that pertains 00:03:04.440 --> 00:03:08.610 to all the Native American tribes is in 1887, 00:03:08.610 --> 00:03:11.340 the Dawes Act was passed, which subdivided Native reservations 00:03:11.340 --> 00:03:13.770 into individual allotments and opened reservations 00:03:13.770 --> 00:03:15.840 to settlement by whites. 00:03:15.840 --> 00:03:17.580 In particular, the Flathead reservation, 00:03:17.580 --> 00:03:20.070 this kind of accelerated after the Flathead Allotment 00:03:20.070 --> 00:03:23.760 Act of 1954, provided for the distribution and irrigation 00:03:23.760 --> 00:03:26.970 of actually a few different sizes of allotments 00:03:26.970 --> 00:03:28.635 but predominantly 160 acre allotments 00:03:28.635 --> 00:03:30.330 to Indian households. 00:03:30.330 --> 00:03:34.320 And then the rest of the acres that weren't given out 00:03:34.320 --> 00:03:36.420 were considered surplus. 00:03:36.420 --> 00:03:38.310 And those surplus acres were available 00:03:38.310 --> 00:03:39.965 to non-tribal members. 00:03:39.965 --> 00:03:43.290 And so today actually most Flathead reservation residents 00:03:43.290 --> 00:03:45.030 are not tribal members. 00:03:45.030 --> 00:03:48.300 And there are many, both public and private non-tribal water 00:03:48.300 --> 00:03:49.950 uses, including municipal uses. 00:03:49.950 --> 00:03:52.740 For example, Polson, Montana, which 00:03:52.740 --> 00:03:55.200 is the county seat of Lake County, which 00:03:55.200 --> 00:03:58.980 is one of four counties that enters into the Flathead 00:03:58.980 --> 00:04:03.330 reservation, Polson, Montana is the seat county of Lake Montana 00:04:03.330 --> 00:04:06.090 and it's the largest town in the Flathead reservation. 00:04:06.090 --> 00:04:08.040 So I think it's just important to recognize 00:04:08.040 --> 00:04:11.060 the complexity of the land use. 00:04:11.060 --> 00:04:13.130 The Flathead Indian Irrigation Project 00:04:13.130 --> 00:04:17.390 was a federally funded irrigation system 00:04:17.390 --> 00:04:20.930 that was developed over the course of the first half 00:04:20.930 --> 00:04:24.140 century, mostly in the '20s and '30s. 00:04:24.140 --> 00:04:26.690 And it's really a really extensive network 00:04:26.690 --> 00:04:31.010 of irrigable acres of canals, laterals, distribution systems, 00:04:31.010 --> 00:04:34.070 pumping stations, storage reservoirs that 00:04:34.070 --> 00:04:37.860 provides irrigation to all of the land that was described 00:04:37.860 --> 00:04:41.570 on the past slide, both Native uses, Native users, 00:04:41.570 --> 00:04:44.250 and municipal and non-Native users, 00:04:44.250 --> 00:04:47.330 particularly agricultural users on the reservation who 00:04:47.330 --> 00:04:49.590 are not members of the tribe. 00:04:49.590 --> 00:04:52.760 So that's what you need to know about that. 00:04:52.760 --> 00:04:55.010 Oh yeah, and it's important to note 00:04:55.010 --> 00:05:00.320 that CSKT operates a large portion of FIIP, 00:05:00.320 --> 00:05:02.690 of the Flathead Indian Irrigation Project, 00:05:02.690 --> 00:05:05.390 and has since the '80s. 00:05:05.390 --> 00:05:08.630 So water rights. 00:05:08.630 --> 00:05:10.430 Like many western states, Montana 00:05:10.430 --> 00:05:13.130 adopted a "first in time, first in right" doctrine 00:05:13.130 --> 00:05:15.240 of prior appropriation. 00:05:15.240 --> 00:05:17.810 And until 1973, most rights in the state 00:05:17.810 --> 00:05:19.730 were use rights, which means they 00:05:19.730 --> 00:05:22.160 were exercised when someone basically took water 00:05:22.160 --> 00:05:23.420 for a beneficial use. 00:05:23.420 --> 00:05:26.510 Most of the time they never filed those rights 00:05:26.510 --> 00:05:28.110 with the county or the state. 00:05:28.110 --> 00:05:30.290 And so many rights have no paper record. 00:05:30.290 --> 00:05:32.420 Rights often spanned multiple counties. 00:05:32.420 --> 00:05:35.940 And there'd be competing claims to the same quantity of water. 00:05:35.940 --> 00:05:37.842 I mean, this became increasingly complex 00:05:37.842 --> 00:05:40.175 because rights were also kept in the county courthouses. 00:05:40.175 --> 00:05:42.243 And so even if a right was filed, 00:05:42.243 --> 00:05:43.910 you had to go to every county courthouse 00:05:43.910 --> 00:05:46.910 to figure out if there were competing rights. 00:05:46.910 --> 00:05:50.360 So in 1972 when Montana adopted a new state constitution 00:05:50.360 --> 00:05:52.190 recognizing existing water rights, 00:05:52.190 --> 00:05:54.050 it also called upon the state legislature 00:05:54.050 --> 00:05:57.090 to quote, "establish a system of centralized records for water 00:05:57.090 --> 00:05:57.590 rights." 00:05:57.590 --> 00:05:59.930 And that's the origin of the dispute, 00:05:59.930 --> 00:06:05.040 is the status of Indian rights in the centralized record. 00:06:05.040 --> 00:06:09.780 In 1973, Montana passed the Water Use Act, 00:06:09.780 --> 00:06:12.540 which mandated that the Department of Natural Resources 00:06:12.540 --> 00:06:14.280 and Conservation permit new claims 00:06:14.280 --> 00:06:16.560 and manage a record of water rights. 00:06:16.560 --> 00:06:21.150 And it established a system of adjudicating pre-1973 claims. 00:06:21.150 --> 00:06:23.250 This means that all new claims had 00:06:23.250 --> 00:06:26.010 to be filed with the Department of Natural Resources 00:06:26.010 --> 00:06:27.750 and Conservation. 00:06:27.750 --> 00:06:30.270 And it began to create a bureaucratic structure 00:06:30.270 --> 00:06:34.380 for looking at all claims filed or existing even if they 00:06:34.380 --> 00:06:37.050 weren't filed prior to 1973. 00:06:37.050 --> 00:06:41.010 In '79, the Senate Bill 76 established the Montana Water 00:06:41.010 --> 00:06:44.940 Court, which was set up initially on a 15 year term 00:06:44.940 --> 00:06:48.240 limit, although it's still around now 50 years later 00:06:48.240 --> 00:06:50.790 and they're hoping to have all the work done-- 00:06:50.790 --> 00:06:54.240 I believe the most recent estimate I saw was by 2028. 00:06:54.240 --> 00:06:57.345 But even that is questionable. 00:06:57.345 --> 00:06:59.220 And established the water court to adjudicate 00:06:59.220 --> 00:07:01.980 all pre-1973 claims. 00:07:01.980 --> 00:07:05.580 However, while this legislation was under consideration, 00:07:05.580 --> 00:07:07.950 both the US Department of the Interior 00:07:07.950 --> 00:07:10.680 and the tribes expressed opposition 00:07:10.680 --> 00:07:13.320 to having their water rights adjudicated by a state court, 00:07:13.320 --> 00:07:15.510 because they argue that these water 00:07:15.510 --> 00:07:18.305 rights, both the federal water rights pertaining 00:07:18.305 --> 00:07:19.680 to federal lands, whether they're 00:07:19.680 --> 00:07:21.930 national parks or Bureau of Land Management lands, 00:07:21.930 --> 00:07:24.750 and also the Native water rights which 00:07:24.750 --> 00:07:28.320 were held in trust by the US government, 00:07:28.320 --> 00:07:31.650 they argue that they were not subject to state courts. 00:07:31.650 --> 00:07:33.930 And many in Montana's agricultural community 00:07:33.930 --> 00:07:35.850 also opposed the use of water courts 00:07:35.850 --> 00:07:38.580 to determine Native rights, because ranchers and others 00:07:38.580 --> 00:07:40.950 both on the reservation and off the reservation feared 00:07:40.950 --> 00:07:44.340 that extensive tribal claims would supersede 00:07:44.340 --> 00:07:47.610 their historical rights because of the "first in time" 00:07:47.610 --> 00:07:48.870 doctrine. 00:07:48.870 --> 00:07:51.930 In response, the legislature amended the draft legislation 00:07:51.930 --> 00:07:55.020 and established the Montana Reserved Water Rights Compact 00:07:55.020 --> 00:07:58.857 Commission, which negotiates on the state's behalf. 00:07:58.857 --> 00:08:00.690 The commission was also initially authorized 00:08:00.690 --> 00:08:03.390 for a limited term, but that term 00:08:03.390 --> 00:08:05.310 was extended and extended and extended. 00:08:05.310 --> 00:08:07.967 We'll talk about where it ended up. 00:08:07.967 --> 00:08:10.050 Just quickly, there are two kinds of tribal rights 00:08:10.050 --> 00:08:10.650 that pertain. 00:08:10.650 --> 00:08:12.360 There are federally reserved rights 00:08:12.360 --> 00:08:15.420 that were set aside by the federal government for use 00:08:15.420 --> 00:08:16.590 by the Native tribe. 00:08:16.590 --> 00:08:19.080 And these have a priority date that's 00:08:19.080 --> 00:08:22.530 equivalent to the date of the reservation's creation. 00:08:22.530 --> 00:08:25.048 So in the Flathead reservation, it's 1855. 00:08:25.048 --> 00:08:27.090 And they're governed by what's called the Winters 00:08:27.090 --> 00:08:31.080 Doctrine, which refers to the Supreme Court doctrine that 00:08:31.080 --> 00:08:33.780 said that when the US set aside land for Indian reservation, 00:08:33.780 --> 00:08:36.870 it implicitly reserved adequate water for the tribes 00:08:36.870 --> 00:08:38.380 to fulfill their livelihoods. 00:08:38.380 --> 00:08:40.409 And so this is the on-reservation rights 00:08:40.409 --> 00:08:42.900 that we're talking about that are federally reserved. 00:08:42.900 --> 00:08:46.950 The Aboriginal rights are rights that predate a reservation 00:08:46.950 --> 00:08:49.470 and are explicitly recognized in the treaty or statute that 00:08:49.470 --> 00:08:50.470 created the reservation. 00:08:50.470 --> 00:08:52.440 And these rights have a different priority date 00:08:52.440 --> 00:08:54.300 of time immemorial. 00:08:54.300 --> 00:08:57.300 And time immemorial means, I thought 00:08:57.300 --> 00:08:59.430 that was an interesting term, what 00:08:59.430 --> 00:09:02.430 it means is time extended beyond the reach of memory, record, 00:09:02.430 --> 00:09:04.990 or tradition, indefinitely ancient 00:09:04.990 --> 00:09:06.190 beyond memory or record. 00:09:06.190 --> 00:09:08.640 So these are the off-reservation rights 00:09:08.640 --> 00:09:11.430 that were subject to that kind of the provision 00:09:11.430 --> 00:09:14.220 in the original treaty that I mentioned. 00:09:14.220 --> 00:09:15.900 And two things to note about this. 00:09:15.900 --> 00:09:19.830 The Aboriginal rights almost by definition because of the time 00:09:19.830 --> 00:09:21.960 immemorial claim would by definition 00:09:21.960 --> 00:09:27.780 have an earlier priority date than all other claims 00:09:27.780 --> 00:09:30.810 in all other water rights in Montana because of the time 00:09:30.810 --> 00:09:32.700 immemorial date. 00:09:32.700 --> 00:09:35.070 And something similar has actually occurred, 00:09:35.070 --> 00:09:37.440 although it's been more disputed with the federally 00:09:37.440 --> 00:09:38.670 reserved rights. 00:09:38.670 --> 00:09:41.070 Given that the Flathead reservation was not 00:09:41.070 --> 00:09:45.660 open to homesteading by non-tribal members until 1909, 00:09:45.660 --> 00:09:48.780 the tribe has argued that their on-reservation rights are 00:09:48.780 --> 00:09:51.270 necessarily superior or senior, sorry, 00:09:51.270 --> 00:09:53.250 to all other on-reservation rights, 00:09:53.250 --> 00:09:56.100 regardless of whether they're Aboriginal or reserve. 00:09:56.100 --> 00:09:59.460 But this fact, which has come to be accepted, 00:09:59.460 --> 00:10:03.000 was not accepted at the time by many non-tribal residents 00:10:03.000 --> 00:10:06.960 of the reservation, especially ranchers and other kind 00:10:06.960 --> 00:10:10.470 of large irrigators as well as a number of municipal governments 00:10:10.470 --> 00:10:16.170 and Republican state legislators who argued that this somehow 00:10:16.170 --> 00:10:19.350 constituted an unconstitutional taking under the US 00:10:19.350 --> 00:10:21.690 Constitution, under the Montana Constitution. 00:10:21.690 --> 00:10:23.490 It's not worth getting into it, but just 00:10:23.490 --> 00:10:26.670 to say that there wasn't agreement at the beginning that 00:10:26.670 --> 00:10:28.630 was the fact. 00:10:28.630 --> 00:10:30.040 Legislation that I just discussed 00:10:30.040 --> 00:10:33.370 set up the Montana State Compact Commission. 00:10:33.370 --> 00:10:35.620 And the Compact Commission is a nine member commission 00:10:35.620 --> 00:10:38.950 appointed to four year terms, kind of in this makeup. 00:10:38.950 --> 00:10:41.350 And it created this really complex process 00:10:41.350 --> 00:10:44.260 for getting an agreement negotiated. 00:10:44.260 --> 00:10:45.910 First there were negotiations, and then 00:10:45.910 --> 00:10:47.890 the full commission once agreed upon 00:10:47.890 --> 00:10:49.810 had to vote upon the negotiations. 00:10:49.810 --> 00:10:52.510 Then it had to go to the Montana state legislature who 00:10:52.510 --> 00:10:54.070 had to ratify it. 00:10:54.070 --> 00:10:57.610 Then the tribal compact, so on the left hand column now, 00:10:57.610 --> 00:10:59.050 then had to go to the US Congress. 00:10:59.050 --> 00:11:01.930 And Congress, both the Senate and the House, 00:11:01.930 --> 00:11:03.340 had to ratify it. 00:11:03.340 --> 00:11:04.940 The president had to sign it. 00:11:04.940 --> 00:11:08.170 The tribe then had to vote to approve it. 00:11:08.170 --> 00:11:12.190 And it then needs a kind of pro forma approval 00:11:12.190 --> 00:11:15.820 by the Montana Water Court, who issues the final decree, 00:11:15.820 --> 00:11:20.170 entering the rights agreed upon into the system 00:11:20.170 --> 00:11:23.620 that the state now manages according to the 1973 00:11:23.620 --> 00:11:24.550 constitution. 00:11:24.550 --> 00:11:27.700 So there's a huge number of parties 00:11:27.700 --> 00:11:29.500 who have to sign on to this. 00:11:29.500 --> 00:11:31.030 At every step of the way, there have 00:11:31.030 --> 00:11:34.990 been roadblocks and issues and renegotiations 00:11:34.990 --> 00:11:37.990 as a result of the complexity of this process and just 00:11:37.990 --> 00:11:41.660 how many parties were apart. 00:11:41.660 --> 00:11:44.830 So there are a couple of other contextual things 00:11:44.830 --> 00:11:46.630 that I want to bring up, because I think 00:11:46.630 --> 00:11:48.400 they're important to understanding 00:11:48.400 --> 00:11:51.130 the contentiousness of the conversations 00:11:51.130 --> 00:11:54.190 around the compact. 00:11:54.190 --> 00:11:55.300 Three court cases that-- 00:11:55.300 --> 00:11:56.675 I'm going to try to pronounce it. 00:11:56.675 --> 00:11:58.660 Ciotti I, II, and III, I guess. 00:11:58.660 --> 00:12:00.070 There were three court cases that 00:12:00.070 --> 00:12:05.230 were filed between 1996 and 2003 and argued before the Supreme 00:12:05.230 --> 00:12:06.070 Court. 00:12:06.070 --> 00:12:08.650 And actually the last one was only 00:12:08.650 --> 00:12:10.963 found during the actual negotiations. 00:12:10.963 --> 00:12:12.880 It was when the Supreme Court made its ruling. 00:12:12.880 --> 00:12:16.030 And it recognized the distinction 00:12:16.030 --> 00:12:18.730 between state appropriative water rights and reserve water 00:12:18.730 --> 00:12:19.540 rights. 00:12:19.540 --> 00:12:24.010 And the ruling was that new and amended water use permits 00:12:24.010 --> 00:12:27.550 on the reservation had to show that their proposed uses would 00:12:27.550 --> 00:12:29.173 not, quote, "unreasonably interfere 00:12:29.173 --> 00:12:31.090 with a planned use for which water has already 00:12:31.090 --> 00:12:32.140 been reserved." 00:12:32.140 --> 00:12:35.440 And what the Supreme Court said again and again 00:12:35.440 --> 00:12:38.937 as this case was re-fought in different forms, 00:12:38.937 --> 00:12:41.020 and only the first one was actually called Ciotti, 00:12:41.020 --> 00:12:43.330 as it was fought in different forms, what they argued 00:12:43.330 --> 00:12:46.090 was that because the state and because 00:12:46.090 --> 00:12:49.420 private non-tribal water users couldn't show proof 00:12:49.420 --> 00:12:53.740 that their claims were not unreasonably interfering 00:12:53.740 --> 00:12:57.020 with the planned use, then that burden could not be met. 00:12:57.020 --> 00:13:00.680 And so a new water use permit could not be issued. 00:13:00.680 --> 00:13:04.180 And so this decision had a few significant impacts. 00:13:04.180 --> 00:13:07.780 It gave the tribes, the CSKT, a significant amount 00:13:07.780 --> 00:13:10.210 of bargaining power, because municipalities 00:13:10.210 --> 00:13:14.140 and non-Indian reservations on the Flathead reservation 00:13:14.140 --> 00:13:16.870 couldn't apply to the state for new or amended beneficial use 00:13:16.870 --> 00:13:20.350 permits so long as the tribe's reserved rights remained 00:13:20.350 --> 00:13:21.520 unquantified. 00:13:21.520 --> 00:13:25.300 And the potential negative impact 00:13:25.300 --> 00:13:27.638 on the state of having to litigate each of the claims 00:13:27.638 --> 00:13:29.680 separately, to the tribal [INAUDIBLE] separately, 00:13:29.680 --> 00:13:30.940 was [INAUDIBLE]. 00:13:30.940 --> 00:13:34.210 It's also important to note because the non-Indian permit 00:13:34.210 --> 00:13:37.480 holders were frightened of not receiving sufficient water 00:13:37.480 --> 00:13:40.540 for their own uses or losing their water rights altogether 00:13:40.540 --> 00:13:44.620 because of the possibility of the tribes having reserved 00:13:44.620 --> 00:13:45.580 claims. 00:13:45.580 --> 00:13:47.260 And this generated political panic 00:13:47.260 --> 00:13:50.590 among non-Indian municipal and county politicians 00:13:50.590 --> 00:13:55.070 and amongst other irrigators in the region. 00:13:55.070 --> 00:14:01.360 In 1982, the tribes in anticipation of negotiations 00:14:01.360 --> 00:14:03.460 with the Compact Commission collaborated 00:14:03.460 --> 00:14:06.610 with the US Geological Survey on an extensive drainage 00:14:06.610 --> 00:14:11.110 by drainage measurement program of groundwater, surface water, 00:14:11.110 --> 00:14:16.040 stream flow, river flow, minimum fill levels 00:14:16.040 --> 00:14:18.860 of different bodies of water. 00:14:18.860 --> 00:14:22.510 And so by the time the negotiations started in 2000, 00:14:22.510 --> 00:14:24.580 the US government and the tribes were 00:14:24.580 --> 00:14:27.460 in possession of an unprecedented amount of data 00:14:27.460 --> 00:14:30.910 about the water that was up for review. 00:14:30.910 --> 00:14:33.010 I got to interview a long time tribal 00:14:33.010 --> 00:14:35.740 attorney who started his career in the early '80s 00:14:35.740 --> 00:14:37.210 and retired last year. 00:14:37.210 --> 00:14:42.040 So his career was bookended basically by this negotiation. 00:14:42.040 --> 00:14:43.840 What he said was that fact finding 00:14:43.840 --> 00:14:46.270 was a process of sharing data with the state 00:14:46.270 --> 00:14:48.280 to bring the state up to speed. 00:14:48.280 --> 00:14:51.280 And it's something that I think was interesting 00:14:51.280 --> 00:14:54.340 about the negotiations is that opposition, especially 00:14:54.340 --> 00:14:56.650 from legislators over the course of negotiations, 00:14:56.650 --> 00:15:01.420 was often ignorance, because just the knowledge 00:15:01.420 --> 00:15:05.420 was so one sided at the start of negotiations. 00:15:05.420 --> 00:15:08.990 Finally, it's important to note that the alternative 00:15:08.990 --> 00:15:14.240 to negotiations loomed over the negotiations. 00:15:14.240 --> 00:15:18.140 The tribes of the state if they did not 00:15:18.140 --> 00:15:20.330 agree to a compact, the two sides 00:15:20.330 --> 00:15:23.750 would be forced to litigate each claim separately 00:15:23.750 --> 00:15:25.070 in the Water Court. 00:15:25.070 --> 00:15:28.280 That would have been very costly and taken many years. 00:15:28.280 --> 00:15:32.090 And it was a valid fear on the part of the non-tribal water 00:15:32.090 --> 00:15:34.700 users that they would be at risk of losing 00:15:34.700 --> 00:15:38.330 their state appropriated water rights because of the tribe's 00:15:38.330 --> 00:15:40.590 earlier priority dates. 00:15:40.590 --> 00:15:44.640 Even the tribes recognized that having to litigate their claims 00:15:44.640 --> 00:15:46.500 would be costly and burdensome. 00:15:46.500 --> 00:15:48.720 And just to give you a sense, these 00:15:48.720 --> 00:15:52.470 are just the off-reservation claims that you see here. 00:15:52.470 --> 00:15:56.340 The left are 97 rights that as of 2018, it 00:15:56.340 --> 00:15:58.500 changed a little bit after that, as of 2018, 00:15:58.500 --> 00:16:04.080 the tribe was going to maintain off reservation. 00:16:04.080 --> 00:16:09.360 And these are the rights that the state 00:16:09.360 --> 00:16:13.020 thought the tribe had the ability to adjudicate 00:16:13.020 --> 00:16:14.520 if they didn't have a compact. 00:16:14.520 --> 00:16:17.910 And so if a compact wasn't reached, 00:16:17.910 --> 00:16:20.700 the tribe could have gone to court and litigated 00:16:20.700 --> 00:16:22.470 upwards of 10,000 different water 00:16:22.470 --> 00:16:24.720 claims across Western Montana. 00:16:24.720 --> 00:16:27.960 And as a result, there was a lot of incentive for the state 00:16:27.960 --> 00:16:32.280 to come to a settlement that both quantified the tribe's 00:16:32.280 --> 00:16:35.610 rights and also protected the junior rights 00:16:35.610 --> 00:16:41.140 of non-tribal water users so that this didn't occur 00:16:41.140 --> 00:16:45.930 and there wasn't decades of litigation over these rights. 00:16:45.930 --> 00:16:49.260 So in terms of the negotiation topics, that the body kind 00:16:49.260 --> 00:16:52.770 of discussed, there were on-reservation rights 00:16:52.770 --> 00:16:56.250 pertaining to the irrigation project, on-reservation rights 00:16:56.250 --> 00:16:58.210 pertaining to the irrigation deliveries. 00:16:58.210 --> 00:17:01.890 So this is water from the irrigation project 00:17:01.890 --> 00:17:07.349 that has historically been used by non-tribal water users. 00:17:07.349 --> 00:17:10.319 And so their right to continue to receive that water. 00:17:10.319 --> 00:17:12.640 There was water from the Flathead system, 00:17:12.640 --> 00:17:17.369 meaning the Flathead River, its tributaries, and Flathead Lake. 00:17:17.369 --> 00:17:19.740 And then there were a number of non-consumptive rights. 00:17:19.740 --> 00:17:23.310 Off reservation, there were instream flow rights as well as 00:17:23.310 --> 00:17:25.530 state law based non-irrigation rights, 00:17:25.530 --> 00:17:28.862 which I'll talk about a little more later. 00:17:28.862 --> 00:17:30.570 Actually one thing that I didn't put here 00:17:30.570 --> 00:17:32.112 is the other thing that was obviously 00:17:32.112 --> 00:17:35.610 a part of this was off-reservation rights claimed 00:17:35.610 --> 00:17:41.100 by non-tribal users, which is most off-reservation rights 00:17:41.100 --> 00:17:44.290 that were at risk as a result of this were by non-tribal users. 00:17:44.290 --> 00:17:46.380 And somehow I didn't put that on here. 00:17:46.380 --> 00:17:48.140 And then there was implementation. 00:17:48.140 --> 00:17:49.620 And so these were the discussions. 00:17:49.620 --> 00:17:52.570 I'm going to put a kind of calendar in front of you. 00:17:52.570 --> 00:17:54.900 And I don't need you to read through all of it. 00:17:54.900 --> 00:17:56.460 This is the first of two pages. 00:17:56.460 --> 00:17:58.320 Because I really want to call your attention 00:17:58.320 --> 00:18:00.580 to a couple of things. 00:18:00.580 --> 00:18:02.190 So the first thing is the start date. 00:18:02.190 --> 00:18:05.520 The first negotiation sessions occurred in 2000. 00:18:05.520 --> 00:18:09.370 But in 2001, the state issued-- 00:18:09.370 --> 00:18:13.520 and this is after all three of the Ciotti I and II were done 00:18:13.520 --> 00:18:16.590 and the Ciotti III was currently before the Supreme Court. 00:18:16.590 --> 00:18:18.750 And despite that, the state issued 00:18:18.750 --> 00:18:22.500 yet another on-reservation permit during negotiations 00:18:22.500 --> 00:18:25.290 despite multiple rulings by the Supreme Court. 00:18:25.290 --> 00:18:27.180 And I think it's important just because it 00:18:27.180 --> 00:18:29.730 chose to accept a level of distrust 00:18:29.730 --> 00:18:33.840 and also the level of skepticism that the tribe had about 00:18:33.840 --> 00:18:36.030 the state's ability to and willingness 00:18:36.030 --> 00:18:38.310 to negotiate forthrightly. 00:18:38.310 --> 00:18:42.860 I think it's also important that the facilitator who was brought 00:18:42.860 --> 00:18:46.085 in 2011, Edward Sheets, I was told, 00:18:46.085 --> 00:18:47.960 and I've been trying to get in touch with him 00:18:47.960 --> 00:18:49.400 and I haven't been able to, but I 00:18:49.400 --> 00:18:51.260 was told that relatively little had 00:18:51.260 --> 00:18:53.330 been decided by the time he began 00:18:53.330 --> 00:18:55.190 working on the negotiations. 00:18:55.190 --> 00:18:57.050 And he brought order to the negotiations 00:18:57.050 --> 00:19:00.800 and served as an unbiased party with which both sides could 00:19:00.800 --> 00:19:01.970 discuss. 00:19:01.970 --> 00:19:04.910 And I think the impact of him as a neutral party 00:19:04.910 --> 00:19:06.660 is really important. 00:19:06.660 --> 00:19:08.210 I think also just the number of years 00:19:08.210 --> 00:19:11.750 that passed between 2002 and 2005, 00:19:11.750 --> 00:19:14.300 the two sides turned their attention entirely 00:19:14.300 --> 00:19:15.832 to negotiating an interim agreement 00:19:15.832 --> 00:19:17.540 once they realized how long it would take 00:19:17.540 --> 00:19:18.920 to come to a final agreement. 00:19:18.920 --> 00:19:22.400 And then because of a number of political reasons, 00:19:22.400 --> 00:19:25.190 they abandoned the interim agreement. 00:19:25.190 --> 00:19:27.350 When the compact failed in the state legislature 00:19:27.350 --> 00:19:29.610 in 2013, because that's what occurred, 00:19:29.610 --> 00:19:31.220 the first compact was agreed to. 00:19:31.220 --> 00:19:32.600 It went to the state legislature. 00:19:32.600 --> 00:19:33.920 It failed. 00:19:33.920 --> 00:19:35.930 And much of the opposition at the time 00:19:35.930 --> 00:19:38.630 was Republican representatives expressed some concern 00:19:38.630 --> 00:19:40.400 that the compact didn't sufficiently 00:19:40.400 --> 00:19:42.267 protect non-tribal water users. 00:19:42.267 --> 00:19:44.600 And some of it was legitimate concern, though some of it 00:19:44.600 --> 00:19:47.600 appears to have been political grandstanding. 00:19:47.600 --> 00:19:52.400 Then the state and the tribes agreed to a limited reopening. 00:19:52.400 --> 00:19:56.720 Two years later when the legislature meets again, 00:19:56.720 --> 00:19:58.130 they pass it. 00:19:58.130 --> 00:20:00.470 And then it went to the US Congress 00:20:00.470 --> 00:20:03.290 where it sat for five years in different forms 00:20:03.290 --> 00:20:06.050 with slight amendments occurring all over the place 00:20:06.050 --> 00:20:09.290 until finally it passed as a part of the COVID-19 stimulus 00:20:09.290 --> 00:20:10.760 bill in December. 00:20:10.760 --> 00:20:15.980 And just days after that, the tribe council passed it 00:20:15.980 --> 00:20:19.760 and now it's awaiting a bureaucratic review that is 00:20:19.760 --> 00:20:23.240 expected to be simple, routine. 00:20:23.240 --> 00:20:26.540 I was told by John Carter, the former staff 00:20:26.540 --> 00:20:28.580 attorney for the tribes, that one thing that 00:20:28.580 --> 00:20:31.730 helped the revised agreement pass two years later 00:20:31.730 --> 00:20:34.297 was extensive dialogue with a couple of key Republicans 00:20:34.297 --> 00:20:36.380 who were willing to learn more about the agreement 00:20:36.380 --> 00:20:40.760 but whose opposition in 2013 faded by 2015 once they 00:20:40.760 --> 00:20:42.410 understood the thing better. 00:20:42.410 --> 00:20:46.850 So that's I think something that I will return to at the end, 00:20:46.850 --> 00:20:50.940 but just the importance of that understanding. 00:20:50.940 --> 00:20:53.180 So this is where they ended up. 00:20:53.180 --> 00:20:55.860 On-reservation rights were protected in a number of ways. 00:20:55.860 --> 00:21:00.800 The tribes agreed to 211 total on-reservation rights. 00:21:00.800 --> 00:21:01.795 Really detailed. 00:21:01.795 --> 00:21:03.170 I didn't get into the detail here 00:21:03.170 --> 00:21:04.670 in terms of how it's apportioned, 00:21:04.670 --> 00:21:07.220 and where it comes from, where it goes. 00:21:07.220 --> 00:21:09.470 With a priority date of 1855, they then 00:21:09.470 --> 00:21:11.120 agreed to relinquish the right to call 00:21:11.120 --> 00:21:13.490 all other on-reservation rights. 00:21:13.490 --> 00:21:17.390 The state agreed to give the tribes ownership of the-- 00:21:17.390 --> 00:21:20.720 or to the US ownership and trust of the tribe of the irrigation 00:21:20.720 --> 00:21:23.660 project provided that the tribe continued 00:21:23.660 --> 00:21:28.100 to deliver a certain quantity of water to non-tribal water 00:21:28.100 --> 00:21:30.500 users, non-tribal irrigators who have historically 00:21:30.500 --> 00:21:33.297 used the irrigation project. 00:21:33.297 --> 00:21:34.880 And that was a really contentious part 00:21:34.880 --> 00:21:37.550 of the agreement, because a number of the non-tribal users 00:21:37.550 --> 00:21:39.890 wanted the state to retain ownership. 00:21:39.890 --> 00:21:43.580 Then there were a number of non-consumptive rights. 00:21:43.580 --> 00:21:46.070 So one quote-- I'll skip a little bit, but one quote, 00:21:46.070 --> 00:21:49.820 I want to say this is a quote from a Big Timber rancher named 00:21:49.820 --> 00:21:54.110 Lawrence Grossfield who formed a group to help support the 2015 00:21:54.110 --> 00:21:56.810 version of the compact, the revised version of the compact. 00:21:56.810 --> 00:21:58.760 She gave this in 2015. 00:21:58.760 --> 00:22:01.700 And she said, oh, he gave it. 00:22:01.700 --> 00:22:03.020 Sorry, Lawrence. 00:22:03.020 --> 00:22:04.970 "There wasn't much in the way two years ago 00:22:04.970 --> 00:22:07.370 of an educational effort for the press or legislatures 00:22:07.370 --> 00:22:08.210 or anybody. 00:22:08.210 --> 00:22:09.590 We're going to be out and visible 00:22:09.590 --> 00:22:11.507 and just trying to spread accurate information 00:22:11.507 --> 00:22:13.500 about the compact and the whole process." 00:22:13.500 --> 00:22:17.210 And two years later after the first agreement failed, 00:22:17.210 --> 00:22:20.150 that educational process was really important. 00:22:20.150 --> 00:22:23.240 Off reservation, the tribes retained 00:22:23.240 --> 00:22:26.150 eight off-reservation instream flow rights as well as 00:22:26.150 --> 00:22:29.060 58 additional rights to be co-owned 00:22:29.060 --> 00:22:33.590 by the state and the tribes with very detailed parameters. 00:22:33.590 --> 00:22:37.400 The tribe has agreed to relinquish 97%, many thousands 00:22:37.400 --> 00:22:41.720 of claims protecting the non-tribal users across Western 00:22:41.720 --> 00:22:42.950 Montana. 00:22:42.950 --> 00:22:44.960 And that was hugely important. 00:22:44.960 --> 00:22:47.510 I want to point out one thing, which is that the map I showed 00:22:47.510 --> 00:22:49.520 you earlier of the off-reservation claims, 00:22:49.520 --> 00:22:51.080 it said on the map that there were 00:22:51.080 --> 00:22:54.230 97 off-reservation rights in 2018 00:22:54.230 --> 00:22:55.490 that the tribe were getting. 00:22:55.490 --> 00:22:58.130 But by the time the actual agreement 00:22:58.130 --> 00:23:02.480 was passed by the US Congress, that number had dropped to 58. 00:23:02.480 --> 00:23:06.740 And that occurred because Senator Daines of Montana 00:23:06.740 --> 00:23:10.610 basically with the tribes negotiated slight changes 00:23:10.610 --> 00:23:12.500 in order to get other senators on board, 00:23:12.500 --> 00:23:13.730 the US Senators on board. 00:23:13.730 --> 00:23:17.870 So it's interesting that even once the agreement had passed, 00:23:17.870 --> 00:23:19.400 it was agreed to by the two sides, 00:23:19.400 --> 00:23:21.320 even once the state legislature had agreed 00:23:21.320 --> 00:23:24.650 to it, four years later when it was with the US Congress, 00:23:24.650 --> 00:23:27.650 they were continuing to negotiate over minor points 00:23:27.650 --> 00:23:30.770 so that they could get this thing passed once and for all 00:23:30.770 --> 00:23:34.310 and quantify the tribe's rights. 00:23:34.310 --> 00:23:36.535 Implementation. 00:23:36.535 --> 00:23:37.910 At the very beginning, the tribes 00:23:37.910 --> 00:23:41.810 wanted a unitary system that they controlled on reservation. 00:23:41.810 --> 00:23:43.940 Over time they came to an agreement 00:23:43.940 --> 00:23:47.330 for a unitary system that was jointly controlled. 00:23:47.330 --> 00:23:51.950 And this was unprecedented for the state who had never 00:23:51.950 --> 00:23:54.950 given up some management to one of the tribes in the state 00:23:54.950 --> 00:23:58.280 and also was a significant concession by the tribes. 00:23:58.280 --> 00:24:01.680 This joint board is currently being set up with help 00:24:01.680 --> 00:24:03.110 from the state commission. 00:24:03.110 --> 00:24:05.450 And the state agreed also to give $50 million 00:24:05.450 --> 00:24:09.290 to a number of water measurement and irrigation efforts. 00:24:09.290 --> 00:24:14.240 The unitary system is something that a lot of the, also again, 00:24:14.240 --> 00:24:16.460 the non-tribal irrigators were very upset about, 00:24:16.460 --> 00:24:18.560 because they felt that they would lose the ability 00:24:18.560 --> 00:24:24.520 to negotiate rights, that they felt they should not 00:24:24.520 --> 00:24:26.830 have to go to the tribe for. 00:24:26.830 --> 00:24:29.530 I'll leave it at that for now. 00:24:29.530 --> 00:24:32.390 A couple of conclusions that I want to bring up. 00:24:32.390 --> 00:24:34.960 One is that divergent knowledge is an impediment early 00:24:34.960 --> 00:24:35.920 on in negotiations. 00:24:35.920 --> 00:24:38.140 That water management should be a joint undertaking 00:24:38.140 --> 00:24:39.070 or jointly observed. 00:24:39.070 --> 00:24:42.100 I think it's really interesting that one 00:24:42.100 --> 00:24:45.220 of the major impediments in the first years 00:24:45.220 --> 00:24:48.700 was simply the fact that the state didn't have anything 00:24:48.700 --> 00:24:50.650 close to the level of understanding 00:24:50.650 --> 00:24:54.280 of the existing water on the reservation that the tribes had 00:24:54.280 --> 00:24:56.200 and that the US government had. 00:24:56.200 --> 00:24:57.940 Second, that impartial facilitators 00:24:57.940 --> 00:24:59.440 are essential and should be utilized 00:24:59.440 --> 00:25:01.990 even before negotiations begin. 00:25:01.990 --> 00:25:05.200 That the first decade wasn't wasted. 00:25:05.200 --> 00:25:07.120 Some stuff was decided upon. 00:25:07.120 --> 00:25:11.170 But by all accounts, when Edward Sheets was brought on, 00:25:11.170 --> 00:25:14.080 things moved forward much more smoothly 00:25:14.080 --> 00:25:17.890 in a really ordered fashion and with a lot less chest beating. 00:25:17.890 --> 00:25:19.690 And third, so when politics are bound 00:25:19.690 --> 00:25:21.790 to get in the way of an agreement's approval, 00:25:21.790 --> 00:25:23.680 it's better to include skeptical parties 00:25:23.680 --> 00:25:26.150 than to build a wall around negotiators. 00:25:26.150 --> 00:25:27.260 This is a personal thing. 00:25:27.260 --> 00:25:30.400 I think that certain state representatives and senators as 00:25:30.400 --> 00:25:32.920 well as some major irrigators might have been, 00:25:32.920 --> 00:25:35.140 if they had been educated on the negotiations 00:25:35.140 --> 00:25:37.420 prior to the document's public release, it's possible, 00:25:37.420 --> 00:25:38.920 I don't know if this is for certain, 00:25:38.920 --> 00:25:41.320 but it's possible that some of their resistance 00:25:41.320 --> 00:25:42.490 could have been mitigated. 00:25:42.490 --> 00:25:44.723 And then again, adaptive, which we've 00:25:44.723 --> 00:25:46.390 talked about before this class, adaptive 00:25:46.390 --> 00:25:48.497 governance necessitates shared control. 00:25:48.497 --> 00:25:50.330 Finally, I didn't know what to do with this. 00:25:50.330 --> 00:25:52.788 It's one question I've been grappling with in the past days 00:25:52.788 --> 00:25:55.480 as I've been editing my doc by my written report. 00:25:55.480 --> 00:25:58.540 Which is basically, what should we make of the fact 00:25:58.540 --> 00:26:02.080 that even after the CSKT, after the tribes have negotiated 00:26:02.080 --> 00:26:03.700 with everybody in good faith they 00:26:03.700 --> 00:26:05.890 had to give up additional rights in order 00:26:05.890 --> 00:26:07.570 to get it passed by the US Congress? 00:26:07.570 --> 00:26:10.060 Is there another system, given the complexity 00:26:10.060 --> 00:26:13.000 of the process, another system that could have been set up 00:26:13.000 --> 00:26:16.600 to help create a process that wouldn't have required 00:26:16.600 --> 00:26:18.460 as much legal approval? 00:26:18.460 --> 00:26:20.950 Or is that simply a fact of history and we 00:26:20.950 --> 00:26:22.240 need to accept it? 00:26:22.240 --> 00:26:25.130 And just it's a question I'm interested in. 00:26:25.130 --> 00:26:29.350 And with that, I will open it up for comments and questions. 00:26:29.350 --> 00:26:31.360 And I know that was a lot, so thank you all. 00:26:35.000 --> 00:26:38.370 DR. GAIN: Thank you, Aron, for the nice presentation. 00:26:38.370 --> 00:26:42.110 So now I would like to ask Husnain 00:26:42.110 --> 00:26:44.300 to make comments and feedback. 00:26:46.838 --> 00:26:49.130 AUDIENCE: Very well done, Aron, with your presentation. 00:26:49.130 --> 00:26:52.310 You really picked a very complicated case study, 00:26:52.310 --> 00:26:56.030 because it involves a lot of stakeholders. 00:26:56.030 --> 00:26:59.690 So as it involves a lot of stakeholders, my first question 00:26:59.690 --> 00:27:02.870 would be, how do you think that all stakeholders came 00:27:02.870 --> 00:27:05.960 into one page and why do you think 00:27:05.960 --> 00:27:14.750 this treaty took so much time to finally conclude? 00:27:14.750 --> 00:27:17.490 Because it involved a lot of litigation. 00:27:17.490 --> 00:27:19.820 What was the things which were not going 00:27:19.820 --> 00:27:21.080 in the right direction before? 00:27:21.080 --> 00:27:24.470 And what was the thing which happened this time to make it 00:27:24.470 --> 00:27:25.760 in the right direction? 00:27:25.760 --> 00:27:27.110 STUDENT PRESENTER: In terms of why it took so long, 00:27:27.110 --> 00:27:28.658 there are a couple of things. 00:27:28.658 --> 00:27:30.950 When the Water Commission was created, when the Compact 00:27:30.950 --> 00:27:34.760 Commission was created in the late '70s, 00:27:34.760 --> 00:27:38.343 they had about a little over a dozen agreements 00:27:38.343 --> 00:27:40.010 to negotiate with the federal government 00:27:40.010 --> 00:27:41.390 and with the state's tribes. 00:27:41.390 --> 00:27:45.500 And they purposefully did all of the others 00:27:45.500 --> 00:27:49.040 and then did the Flathead reservation one 00:27:49.040 --> 00:27:51.840 because the Flathead reservation was the most complicated. 00:27:51.840 --> 00:27:56.620 And I think that actually wasn't a good thing. 00:27:56.620 --> 00:28:00.290 I think that there was a lot of study and animosity 00:28:00.290 --> 00:28:03.080 and kind of divergence that occurred 00:28:03.080 --> 00:28:05.240 in those intervening decades. 00:28:05.240 --> 00:28:08.900 In part, I think, because the tribes 00:28:08.900 --> 00:28:12.530 saw what was coming out of these other agreements 00:28:12.530 --> 00:28:15.620 and immediately began formulating alternate things, 00:28:15.620 --> 00:28:17.120 alternate ideas, because they didn't 00:28:17.120 --> 00:28:18.912 like what the other agreements were saying. 00:28:18.912 --> 00:28:23.450 And so a lot more could have been done earlier, I think, 00:28:23.450 --> 00:28:26.330 if discussions had started in the early '80s, for example, 00:28:26.330 --> 00:28:27.950 or the mid '80s. 00:28:27.950 --> 00:28:32.720 I think the other things that impeded the timeline 00:28:32.720 --> 00:28:35.120 first is that partially because of that, 00:28:35.120 --> 00:28:37.520 the tribes came into the negotiations 00:28:37.520 --> 00:28:39.560 with a lot of preconceived notions 00:28:39.560 --> 00:28:42.780 about what the final agreement should look like. 00:28:42.780 --> 00:28:44.840 And there were a lot of news reports, 00:28:44.840 --> 00:28:49.610 for example, after their first formal negotiation session. 00:28:49.610 --> 00:28:51.560 All of these things that the tribe said 00:28:51.560 --> 00:28:53.210 that they wanted in the final agreement 00:28:53.210 --> 00:28:55.610 that the states immediately threw up their hands 00:28:55.610 --> 00:28:56.750 and said, absolutely not. 00:28:56.750 --> 00:29:01.160 And negotiations actually shut down for a year at that point. 00:29:01.160 --> 00:29:04.760 And so if those conversations could 00:29:04.760 --> 00:29:08.060 have started in the '80s when the tribes were beginning 00:29:08.060 --> 00:29:11.630 their process of studying the water quantity, the water 00:29:11.630 --> 00:29:17.870 quality, and if the questions regarding the implementation 00:29:17.870 --> 00:29:23.330 could have been ongoing, I think a lot of anger 00:29:23.330 --> 00:29:25.040 could have been mitigated. 00:29:25.040 --> 00:29:32.212 So a part of it was just there was so much 00:29:32.212 --> 00:29:34.170 confrontation going into the agreement and very 00:29:34.170 --> 00:29:36.330 little trust. 00:29:36.330 --> 00:29:39.875 And the other thing I think took a lot-- 00:29:39.875 --> 00:29:41.250 the second thing I want to say is 00:29:41.250 --> 00:29:43.975 that I think that the role of the negotiator 00:29:43.975 --> 00:29:44.850 was really important. 00:29:44.850 --> 00:29:49.800 Without the negotiator, a lot of the opportunity for building 00:29:49.800 --> 00:29:52.330 trust didn't occur. 00:29:52.330 --> 00:29:57.750 And they became venting sessions, the negotiations, 00:29:57.750 --> 00:30:01.170 and it wasn't always a productive thing. 00:30:01.170 --> 00:30:02.460 So that's the question. 00:30:02.460 --> 00:30:05.235 In terms of what took so long, I think 00:30:05.235 --> 00:30:06.640 the negotiator helped a lot. 00:30:06.640 --> 00:30:08.322 And then I think eventually having-- 00:30:08.322 --> 00:30:10.530 I mean, and this is where I think the water diplomacy 00:30:10.530 --> 00:30:12.880 framework does come to bear significantly, 00:30:12.880 --> 00:30:16.860 which is that I think once the two sides did have a shared 00:30:16.860 --> 00:30:20.010 understanding of the quantity of water and all 00:30:20.010 --> 00:30:24.360 the different locations and of the various legal arguments 00:30:24.360 --> 00:30:27.840 of the potential uses, once there was that shared 00:30:27.840 --> 00:30:31.590 understanding, it was a lot easier to come to agreements, 00:30:31.590 --> 00:30:34.800 because they understood from what point 00:30:34.800 --> 00:30:38.820 they were compromising from. 00:30:38.820 --> 00:30:42.780 Whereas the tribes went into it with a lot more understanding 00:30:42.780 --> 00:30:47.110 and would put up a very hard wall to begin with. 00:30:47.110 --> 00:30:48.900 And so having that shared understanding 00:30:48.900 --> 00:30:50.722 was really important. 00:30:50.722 --> 00:30:52.680 Sorry, I think I rambled on a little bit there, 00:30:52.680 --> 00:30:54.930 but I hope I got to your questions. 00:30:54.930 --> 00:30:57.030 DR. GAIN: So Husnain, do you have 00:30:57.030 --> 00:30:59.068 further a specific question? 00:30:59.068 --> 00:31:00.110 AUDIENCE: Yeah, one more. 00:31:00.110 --> 00:31:01.240 Yeah. 00:31:01.240 --> 00:31:05.040 It is related to the water diplomacy win-win framework. 00:31:05.040 --> 00:31:09.240 How do you think both parties agreed on this? 00:31:09.240 --> 00:31:13.290 On a win-win side, for example, I read somewhere, 00:31:13.290 --> 00:31:15.390 I was doing some research on it yesterday, 00:31:15.390 --> 00:31:19.470 and I read that the tribes were allocated the national bison 00:31:19.470 --> 00:31:24.840 range, which I think somehow was an attractive thing for them 00:31:24.840 --> 00:31:27.570 for agreeing to this treaty. 00:31:27.570 --> 00:31:30.910 There's a secondary note with this question is, 00:31:30.910 --> 00:31:32.460 you mentioned in one of your slides 00:31:32.460 --> 00:31:39.690 that the number of non-tribes is more than the actual tribal 00:31:39.690 --> 00:31:40.750 people. 00:31:40.750 --> 00:31:43.133 So given the-- 00:31:43.133 --> 00:31:44.550 I just want to understand from you 00:31:44.550 --> 00:31:46.620 what is the percentage of tribal people there 00:31:46.620 --> 00:31:48.060 and non-tribal people. 00:31:48.060 --> 00:31:51.450 And how do you think that balances or evens out 00:31:51.450 --> 00:31:55.867 the whole treaty and things in the Montana region? 00:31:55.867 --> 00:31:57.450 STUDENT PRESENTER: So just to clarify, 00:31:57.450 --> 00:32:02.730 the national bison range is on the Flathead reservation. 00:32:02.730 --> 00:32:10.870 So the tribes were given rights over the management 00:32:10.870 --> 00:32:12.340 of that range. 00:32:12.340 --> 00:32:14.200 But it was already on the reservation. 00:32:14.200 --> 00:32:16.262 It wasn't something off reservation 00:32:16.262 --> 00:32:17.470 that they were fighting over. 00:32:17.470 --> 00:32:25.330 It was on reservation land that was under the legal authority 00:32:25.330 --> 00:32:29.440 of the tribes but managed in trust by the federal government 00:32:29.440 --> 00:32:32.110 until this occurred. 00:32:32.110 --> 00:32:33.910 In terms of the-- sorry, what was 00:32:33.910 --> 00:32:39.340 your question about the numbers of non-tribal members? 00:32:39.340 --> 00:32:40.150 AUDIENCE: Yeah. 00:32:40.150 --> 00:32:44.290 I wanted to know that in this whole Montana 00:32:44.290 --> 00:32:49.690 region in which the treaty is enforced, 00:32:49.690 --> 00:32:52.600 what is the percentage of the tribal 00:32:52.600 --> 00:32:54.700 people are there and the non-tribal people? 00:32:54.700 --> 00:32:57.857 How much benefit are they going to get, the non-tribal people? 00:32:57.857 --> 00:32:59.440 STUDENT PRESENTER: So I can't remember 00:32:59.440 --> 00:33:00.865 the population of the tribe. 00:33:00.865 --> 00:33:01.990 I don't remember right now. 00:33:01.990 --> 00:33:06.725 I believe I believe it's about 8,000 and about 60% 00:33:06.725 --> 00:33:08.350 of the members live on the reservation. 00:33:08.350 --> 00:33:09.908 So I believe it's-- 00:33:09.908 --> 00:33:10.450 I don't know. 00:33:10.450 --> 00:33:12.380 The tribal members, maybe it's 5,000. 00:33:12.380 --> 00:33:15.280 I can't remember exactly right now how many tribal members 00:33:15.280 --> 00:33:18.670 live on the reservation. 00:33:18.670 --> 00:33:23.103 It's a few times that in non-tribal members. 00:33:23.103 --> 00:33:24.520 I'm not sure of the exact numbers, 00:33:24.520 --> 00:33:26.110 again, of non-tribal members who live on-reservation 00:33:26.110 --> 00:33:27.430 but it's a few times that. 00:33:27.430 --> 00:33:29.380 The town of Polson, which is the biggest 00:33:29.380 --> 00:33:33.170 town on the reservation, has a population of about three 00:33:33.170 --> 00:33:34.090 and a half thousand. 00:33:34.090 --> 00:33:36.470 There are many other small towns. 00:33:36.470 --> 00:33:42.430 So those rights, the tribes were given-- this agreement 00:33:42.430 --> 00:33:44.380 quantified, just to clarify, maybe 00:33:44.380 --> 00:33:46.810 I didn't make this clear before, this agreement quantified 00:33:46.810 --> 00:33:49.570 the tribe's rights on the reservation. 00:33:49.570 --> 00:33:52.570 But then there's still other water. 00:33:52.570 --> 00:33:55.780 So that other water then, because the tribe's rights 00:33:55.780 --> 00:33:59.350 are quantified, can now be claimed by non-tribal users 00:33:59.350 --> 00:34:02.620 on the reservation, if that makes sense. 00:34:02.620 --> 00:34:06.190 With regards to the irrigation project, 00:34:06.190 --> 00:34:09.280 the irrigation project included a number of delivery . 00:34:09.280 --> 00:34:13.270 schedules and those delivery schedules were specifically 00:34:13.270 --> 00:34:19.179 to provide water to non-tribal irrigators who have 00:34:19.179 --> 00:34:20.732 historically used that water. 00:34:20.732 --> 00:34:22.690 And there was a lot of disagreement about that. 00:34:22.690 --> 00:34:26.290 Those irrigators, many of them argue 00:34:26.290 --> 00:34:28.420 that the amount of water they would be allocated 00:34:28.420 --> 00:34:29.920 was insufficient and they were going 00:34:29.920 --> 00:34:31.780 to have to move their lands. 00:34:31.780 --> 00:34:35.560 And the state of Montana agreed to actually support them 00:34:35.560 --> 00:34:41.260 by helping to invest in drip agriculture and other things. 00:34:41.260 --> 00:34:47.280 But it will protect over the long term 00:34:47.280 --> 00:34:49.949 their rights, the non-tribal rights on the reservation. 00:34:49.949 --> 00:34:55.469 But the one limitation is that the tribal rights, which are 00:34:55.469 --> 00:34:57.795 quantified, now have priority. 00:34:57.795 --> 00:34:59.670 PROFESSOR SUSSKIND: I took Husnain's question 00:34:59.670 --> 00:35:02.190 to refer to proportionality. 00:35:02.190 --> 00:35:04.980 If you look at the overall benefits that 00:35:04.980 --> 00:35:08.970 are allocated to the federal government, the state 00:35:08.970 --> 00:35:13.050 government, the tribe, and non-tribal members 00:35:13.050 --> 00:35:17.820 living on the reservation, does the final agreement 00:35:17.820 --> 00:35:22.560 reflect some kind of proportionality, equal 00:35:22.560 --> 00:35:24.550 proportion of gain? 00:35:24.550 --> 00:35:27.990 However measured, did everybody come out 00:35:27.990 --> 00:35:33.540 roughly the same relative to the gains that they got? 00:35:33.540 --> 00:35:35.670 Not in terms of how many people, but just 00:35:35.670 --> 00:35:37.550 in terms of these different categories. 00:35:37.550 --> 00:35:38.550 STUDENT PRESENTER: Yeah. 00:35:38.550 --> 00:35:39.508 That's a good question. 00:35:43.600 --> 00:35:45.990 So in terms of number of people, I don't know. 00:35:45.990 --> 00:35:51.090 In terms of the categories, the non-irrigators 00:35:51.090 --> 00:35:54.000 on the reservation, yes. 00:35:54.000 --> 00:35:58.560 So non-irrigators meaning not the irrigation project users. 00:35:58.560 --> 00:36:00.520 The non-irrigators definitely did. 00:36:00.520 --> 00:36:07.530 The municipalities are going to have sufficient water to grow. 00:36:07.530 --> 00:36:10.980 Homeowners and developers can build again 00:36:10.980 --> 00:36:14.610 for both reservation and non-reservation and non-tribal 00:36:14.610 --> 00:36:15.270 members. 00:36:15.270 --> 00:36:17.850 There's a significant amount of enough water 00:36:17.850 --> 00:36:22.010 and now enough legal clarity that that was a gain in itself. 00:36:22.010 --> 00:36:27.100 The group off reservation as well, 00:36:27.100 --> 00:36:32.340 I think that a lot of the off-reservation, definitely 00:36:32.340 --> 00:36:37.500 the non-tribal members of the citizens of the state 00:36:37.500 --> 00:36:40.950 gained a lot because the tribe event gave up 00:36:40.950 --> 00:36:42.120 a lot of their claims. 00:36:42.120 --> 00:36:45.420 The one area where I think there's still disagreement on 00:36:45.420 --> 00:36:46.680 and I don't have a-- 00:36:46.680 --> 00:36:49.850 I think that it's still very controversial 00:36:49.850 --> 00:36:51.600 and it will be throughout implementation-- 00:36:51.600 --> 00:36:56.280 is on-reservation irrigators I think are one group that's 00:36:56.280 --> 00:37:00.765 still a number of whom still feel like they did not have 00:37:00.765 --> 00:37:05.220 sufficient-- they did not gain sufficient protection 00:37:05.220 --> 00:37:07.508 as a result of the negotiations. 00:37:07.508 --> 00:37:08.550 PROFESSOR SUSSKIND: Good. 00:37:08.550 --> 00:37:09.490 That's a good answer. 00:37:09.490 --> 00:37:11.430 Thank you. 00:37:11.430 --> 00:37:14.980 DR. GAIN: Anselmo, do you have any feedback or a question 00:37:14.980 --> 00:37:16.410 to Aron? 00:37:16.410 --> 00:37:18.330 AUDIENCE: Yes, I will be very quickly. 00:37:18.330 --> 00:37:21.090 First, Aron, congratulations for your case. 00:37:21.090 --> 00:37:22.050 Very well done. 00:37:22.050 --> 00:37:23.440 Very well. 00:37:23.440 --> 00:37:26.350 It's a complex case study. 00:37:26.350 --> 00:37:28.100 I just want to highlight some points here. 00:37:28.100 --> 00:37:29.610 I appreciate the historic context 00:37:29.610 --> 00:37:33.960 that you gave from 1855 into 2000. 00:37:33.960 --> 00:37:38.230 Also I liked to learn a lot about the "first in time, 00:37:38.230 --> 00:37:42.090 first in right" that you mentioned before that 1973. 00:37:42.090 --> 00:37:46.020 And you mentioned that the facilitator 00:37:46.020 --> 00:37:49.920 arrived in the negotiation only in 2011. 00:37:49.920 --> 00:37:53.400 But even with the facilitator, it took 9 years 00:37:53.400 --> 00:37:55.990 to reach the agreement. 00:37:55.990 --> 00:37:57.690 STUDENT PRESENTER: So to clarify, 00:37:57.690 --> 00:38:00.810 it actually took-- so the facilitator arrived in 2011. 00:38:00.810 --> 00:38:04.707 They reached their first agreement in 2013. 00:38:04.707 --> 00:38:06.540 So that was when they reached the agreement. 00:38:06.540 --> 00:38:11.310 Then as a result, the result of the state legislature voting it 00:38:11.310 --> 00:38:16.710 down, they renegotiated the agreement in 2015. 00:38:16.710 --> 00:38:20.340 And at that point, it was just sitting in Congress. 00:38:20.340 --> 00:38:22.540 So they weren't negotiating anymore. 00:38:22.540 --> 00:38:25.545 There were some minor things that were changed, 00:38:25.545 --> 00:38:28.000 and the facilitator is actually still involved. 00:38:28.000 --> 00:38:31.320 But it actually only took two years with him 00:38:31.320 --> 00:38:32.550 to reach that agreement. 00:38:32.550 --> 00:38:33.550 AUDIENCE: Oh, two years. 00:38:33.550 --> 00:38:35.322 Oh, great. 00:38:35.322 --> 00:38:36.780 Aron, you don't have to do it here, 00:38:36.780 --> 00:38:40.230 because I know Gemma has to present the Columbia 00:38:40.230 --> 00:38:44.370 presentation, but if you can describe more in your paper 00:38:44.370 --> 00:38:47.370 the negotiation process with the Compact Commission, 00:38:47.370 --> 00:38:51.555 I like a lot the slide you post there with the 90 members. 00:38:51.555 --> 00:38:53.430 And if you can compare with the water managed 00:38:53.430 --> 00:38:56.010 board, that's only having five members, right? 00:38:56.010 --> 00:38:59.010 Six members, but only five can vote. 00:38:59.010 --> 00:39:01.170 It's only-- I really appreciate. 00:39:01.170 --> 00:39:02.130 Congratulations. 00:39:02.130 --> 00:39:04.260 STUDENT PRESENTER: Thank you. 00:39:04.260 --> 00:39:06.110 Trying to understand the negotiation process 00:39:06.110 --> 00:39:08.700 has been really tricky. 00:39:08.700 --> 00:39:13.230 I've read and I've heard that there are transcripts 00:39:13.230 --> 00:39:16.470 of the negotiations out there, but I've actually 00:39:16.470 --> 00:39:17.790 called around. 00:39:17.790 --> 00:39:21.660 I've called the DRC and a number of other people 00:39:21.660 --> 00:39:23.160 who would probably do them, and I've 00:39:23.160 --> 00:39:25.452 emailed people who mentioned them, who have cited them, 00:39:25.452 --> 00:39:26.700 and I can't find them. 00:39:29.850 --> 00:39:31.720 I have a lot of the, what's it called, 00:39:31.720 --> 00:39:36.450 the topic lists, but not the-- but not 00:39:36.450 --> 00:39:40.340 the transcripts themselves, which is a disappointment. 00:39:40.340 --> 00:39:44.000 DR. GAIN: So any other question or comments 00:39:44.000 --> 00:39:48.330 from Flora or Gemma? 00:39:48.330 --> 00:39:49.080 OK. 00:39:49.080 --> 00:39:50.455 STUDENT PRESENTER: Thank you all. 00:39:50.455 --> 00:39:52.370 Appreciate your feedback. 00:39:52.370 --> 00:39:53.830 DR. GAIN: Yes. 00:39:53.830 --> 00:39:57.110 Maybe before Larry, I would like to ask one thing. 00:39:57.110 --> 00:40:02.600 So how does national politics played a role? 00:40:02.600 --> 00:40:06.020 Because I learned that the corporation-- 00:40:06.020 --> 00:40:10.040 the state legislator, specifically 00:40:10.040 --> 00:40:14.360 the Republican legislator, is not 00:40:14.360 --> 00:40:17.600 in favor of this water right issue. 00:40:17.600 --> 00:40:23.270 And there is some issue within the Republican 00:40:23.270 --> 00:40:24.950 and there are some conflicts. 00:40:24.950 --> 00:40:30.200 So how does it play a role in the negotiation 00:40:30.200 --> 00:40:34.090 process in this treaty? 00:40:34.090 --> 00:40:37.360 PROFESSOR SUSSKIND: I defy anybody to explain that. 00:40:37.360 --> 00:40:38.260 Anybody. 00:40:38.260 --> 00:40:39.910 I don't care who they are. 00:40:39.910 --> 00:40:43.300 Because there's what the system is designed to do 00:40:43.300 --> 00:40:47.560 and there's what the political system actually does. 00:40:47.560 --> 00:40:49.870 And what it actually does is a function 00:40:49.870 --> 00:40:53.320 of who has the majority and who's 00:40:53.320 --> 00:40:55.780 in leadership in the executive branch. 00:40:55.780 --> 00:40:59.350 And it doesn't matter what it says on paper about what 00:40:59.350 --> 00:41:01.940 is a state's right, what is a national government's 00:41:01.940 --> 00:41:05.470 right, what is executive, what is legislative. 00:41:05.470 --> 00:41:06.740 Doesn't matter. 00:41:06.740 --> 00:41:09.280 It all changes every time there's 00:41:09.280 --> 00:41:12.440 a shift in power and relationships. 00:41:12.440 --> 00:41:18.040 So there is no way to answer the question about what 00:41:18.040 --> 00:41:23.350 is this crazy intergovernmental system we have supposed to do 00:41:23.350 --> 00:41:25.030 relative to Indian rights. 00:41:25.030 --> 00:41:27.880 Because you then also have the court entering. 00:41:27.880 --> 00:41:29.830 We have these three branches. 00:41:29.830 --> 00:41:33.310 And the Supreme Court got involved in this case 00:41:33.310 --> 00:41:36.040 at one stage, as you heard from Aron. 00:41:36.040 --> 00:41:39.190 And you have the state legislature 00:41:39.190 --> 00:41:43.360 and you have the federal government legislature, 00:41:43.360 --> 00:41:44.350 the Congress. 00:41:44.350 --> 00:41:46.900 But you also have the agencies. 00:41:46.900 --> 00:41:49.150 And the agencies have responsibilities 00:41:49.150 --> 00:41:52.870 for the tribes, the Interior Department. 00:41:52.870 --> 00:41:57.040 It is an insanely complicated system, 00:41:57.040 --> 00:41:59.680 and it's very hard to know what's 00:41:59.680 --> 00:42:02.620 going on even when it's happening, 00:42:02.620 --> 00:42:05.280 because it's not transparent. 00:42:05.280 --> 00:42:11.850 And people make all kinds of private deals and other issues 00:42:11.850 --> 00:42:14.790 get traded off against the issue you're interested in. 00:42:14.790 --> 00:42:16.980 And you don't even know that that's why 00:42:16.980 --> 00:42:19.500 somebody voted a certain way. 00:42:19.500 --> 00:42:21.420 They didn't care about the issue, 00:42:21.420 --> 00:42:23.400 but they got something from somebody else 00:42:23.400 --> 00:42:24.730 for something else. 00:42:24.730 --> 00:42:27.390 So unraveling all of that, I mean, 00:42:27.390 --> 00:42:31.860 I think Aron did a wonderful job, as best you can do, 00:42:31.860 --> 00:42:36.550 of at least getting a timeline and looking at the outcomes. 00:42:36.550 --> 00:42:38.190 But the process? 00:42:38.190 --> 00:42:41.970 I mean, even with the transcript, 00:42:41.970 --> 00:42:44.460 it's indecipherable. 00:42:44.460 --> 00:42:50.420 And everything related to Native Americans in the United States 00:42:50.420 --> 00:42:55.650 doesn't go the way the law says it's supposed to. 00:42:55.650 --> 00:43:00.120 Every treaty has been broken, continues to be broken. 00:43:00.120 --> 00:43:05.400 Every promise, everything that the US government promised 00:43:05.400 --> 00:43:11.690 and committed to, none of it's been upheld. 00:43:11.690 --> 00:43:14.890 And so yeah, I can point to what the system says. 00:43:14.890 --> 00:43:18.160 And somebody can hold up a treaty and say, look here. 00:43:18.160 --> 00:43:20.020 I'm guaranteed certain rights. 00:43:20.020 --> 00:43:22.970 Yeah, well, try to get it enforced. 00:43:22.970 --> 00:43:28.300 So it's the complexity of the US intergovernmental system 00:43:28.300 --> 00:43:31.960 and the extent to which it's really not transparent, 00:43:31.960 --> 00:43:35.832 what's happening, make it impossible to answer 00:43:35.832 --> 00:43:36.415 your question. 00:43:39.432 --> 00:43:40.140 DR. GAIN: Thanks. 00:43:40.140 --> 00:43:43.950 So maybe for the final paper, I would like to ask, 00:43:43.950 --> 00:43:47.190 because this is one of the treaty that is successful 00:43:47.190 --> 00:43:49.990 recently in terms of water treaty. 00:43:49.990 --> 00:43:55.170 So maybe you can share very specific lessons learned 00:43:55.170 --> 00:43:57.900 from the negotiation process. 00:43:57.900 --> 00:44:00.570 I think that would be much more helpful in terms 00:44:00.570 --> 00:44:02.670 of water diplomacy aspect. 00:44:02.670 --> 00:44:07.260 I think as this is very new kind of treaty that is successful 00:44:07.260 --> 00:44:10.140 and how the process works and what 00:44:10.140 --> 00:44:14.800 are the general lesson learned. 00:44:14.800 --> 00:44:17.460 I think that would be much more interesting things. 00:44:17.460 --> 00:44:19.710 PROFESSOR SUSSKIND: I really liked the four concluding 00:44:19.710 --> 00:44:20.730 points that you had. 00:44:20.730 --> 00:44:26.160 I think those were very strong. 00:44:26.160 --> 00:44:30.870 And as long as in the text you will elaborate on them 00:44:30.870 --> 00:44:34.260 slightly, but as four concluding points 00:44:34.260 --> 00:44:36.270 in terms of what can be learned from this case, 00:44:36.270 --> 00:44:38.790 I think they're terrific. 00:44:38.790 --> 00:44:40.550 STUDENT PRESENTER: Thank you.