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Controversial bills for Flathead irrigation project stalled

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WASHINGTON - Two controversial bills that would turn management of the Flathead Indian Reservation's federal irrigation project over to water users remain stalled in Congress, at least for now.

Senate Bill 630, introduced in early 1999 by U.S. Sen. Conrad Burns, R-Mont., and House Resolution 1158, an identical bill introduced by Rep. Rick Hill, R-Mont., envision transfer of Flathead Indian Irrigation Project management and maintenance duties to the Flathead Joint Board of Control's (JBC) three water districts, mostly comprised of non-Indians. The project is run by the federal BIA and provides water to about 127,000 acres of farm and ranch land across the 1.2-million-acre reservation.

Hill's bill remains in the House Committee on Resources, where it has never had a hearing. Burns' measure is in the Senate Energy and Natural Resource Subcommittee on Water and Power, after an oversight hearing May 17.

The tribes and the joint board have been wrangling over the irrigation project for decades.

Salish and Kootenai Tribal Chairman Fred Matt testified at the hearing, as did BIA Deputy Commissioner Sharon Blackwell and Jon Metropoulos, the joint board's Helena-based attorney.

Matt told subcommittee members that SB630 is an affront to the tribes and threatens to undermine promises made in the 1855 Treaty of Hell Gate, especially the federal government's vow to protect tribal interests within the reservation. He said the bills were introduced without notice to the tribes, even though they have a key interest in the project's future.

Matt's 11 pages of testimony review the long and tangled history of the project, as well as formulas created to repay construction debt and manage the irrigation works and waterways. The chairman pointed out authorizing language that says the project was established "for the benefit of the Indians" through the 1904 Flathead Allotment Act.

Matt said the irrigation project was initially built and paid for with tribal funds from land and timber sales. He told lawmakers the project initially did not authorize white settlers to be served, but added that "a small portion of the project - no more than 25 percent" was later earmarked for some lands not allocated to individuals under the 1904 act.

In contrast, the JBC believes the project was created under a 1908 amendment to the allotment act that says water was to be delivered to "all irrigable lands."

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Matt told the panel that if current project maps are matched with diagrams of the original allotments, it "graphically confirms that the project was designed and constructed to serve the Indian allottees," and that the system serves the unallotted lands "in only an incidental manner."

"In fact," he said, "the government cautioned settlers that it could not guarantee water to the white settlers of the unallotted lands."

Matt added the tribes have "uncovered extensive and uncontrovertible records documenting a long-standing collusive relationship between the BIA project engineers and the irrigation district supervisors, who routinely conspired together to work against tribal and Indian trust interests."

JBC officials, however, take issue with those allegations and maintain that tribal fee-land irrigators, comprising about 10 percent of the membership, have "full and equal rights of participation in the irrigation district affairs with non-members." Tribal trust land is specifically excluded from the project by statute.

Matt noted that all project dams and hundreds of miles of canals are on tribal trust land, and that the tribes not only run the power utility, but also the federal Safety of Dams program, responsible for extensive repairs conducted on the project's impoundments.

He said the JBC wants the irrigation division, as well as some of its property, turned over "without so much as a credit check, not to mention a demonstration of feasibility or capability." The proposal, he added, conflicts with P.L. 93-638 because it would abolish the tribes' option to manage the irrigation division.

Matt said that along with filing a bevy of unsuccessful lawsuits and administrative actions against the tribes, the JBC has contested tribal moves to regulate reservation hunting and fishing, establish instream flows, and to withdraw from a reservation law-enforcement agreement with the state, among other issues.

"Turning over operation and maintenance of the (project), which is so inextricably tied to trust resources, property and treaty rights to the tribes' singular adversary would be the epitome of asking the fox to guard the hen house ... ."

Senate subcommittee spokeswoman Tina Kreisher said SB 630 is not yet scheduled for further hearings and is not on the immediate schedule for mark-up.

"It's pending," she said. "I have not heard any discussion since this hearing" regarding future movement.