Air Date: Week of November 24, 1995

On a Montana native reservation, it's a question of rights. The Salish and Kootenai tribes and some of their non-Indian tenants are in disagreement over water usage in the region. While the tribe has authority over water quality, many landholders would prefer the U.S. government to oversee their water supply standards. Jennifer Schmidt of member station KPLU reports on the differing points of view which have now led to legal proceedings.

Transcript

CURWOOD: This is Living on Earth. I'm Steve Curwood. Under the treaties between the United States and many Native American nations, tribal lands have special sovereignty. For example, 10 years ago Congress gave Indian reservations many of the same rights to make their own clean water regulations that states have. In northwestern Montana, the Native Americans who govern the Flathead reservation have sought to implement their own stiff set of water protection rules. The move is being opposed by many landholders on the reservation who aren't members of the tribes, and the state of Montana has gone to court on their behalf. Jennifer Schmidt of member station KPLU in Seattle traveled to Montana to get our story.

SCHMIDT: In 1855, centuries of nomadic hunting in the Northwest came to an abrupt end for the Salish and Kootenai tribes. That year the tribes ceded most of their lands to the US Government in exchange for a guaranteed homeland on the Flathead Reservation.

(Flowing water)

SCHMIDT: The reservation lies within the Flathead Valley in northwestern Montana. Unlike many places in the arid west, it's a land rich in water. At the north end of the valley scenic Flathead Lake, the largest freshwater lake west of the Mississippi, stretches for some 30 miles. To the east cold, clear creeks tumble wildly out of the Mission Mountains, providing abundant water for farming and ranching.

CASE: This is the North Crow drainage. This starts in the tribal wilderness area.

SCHMIDT: Georgia Case is a biologist for the Salish and Kootenai tribes. She spends much of her time collecting and testing water on the reservation. The Crow Creek site lies at the base of the Mission Mountains under a canopy of bright yellow aspen and larch.

CASE: When we come out we like to look and see how healthy the community is. If you were to walk up this creek you would see a lot of cutthroat trout. If you started flipping rocks you'd see a lot of stone flies, mayflies, and cattus flies, which are typically indicators of really good water quality.

SCHMIDT: In fact, most of the waterways on the Flathead Reservation remain in good shape. The tribes say they want to keep it that way . The Salish and Kootenai have recently set water quality standards for the reservation as part of a broader effort in Indian country to protect the environment of native lands. Bill Swaney is an environmental manager with the tribes.

SWANEY: What we're seeing is tribes that are very progressive and forward thinking and want to be able to determine the quality of life and the quality of the environment within the reservation boundaries.

SCHMIDT: But good clean water has become the subject of a bitter debate that's pitted tribal members against some non-native residents. Until recently, Indian reservations were a sort of no man's land when it came to water quality regulation. But Congress authorized tribes to establish their own water quality standards in 1987, and the Salish and Kootenai are among the first to assert that control. Some non-Indians charge the law gives tribes too much power.

(Lowing cows. A man calls out to them: "Yevo! Yevo!")

SCHMIDT: On this cold fall evening rancher Bill Slack leans over a fence and proudly points to some of his brown and white Hereford cows. The animals look fat and healthy. Slack moved here 30 years ago from Nevada.

SLACK: People wanted to know what I came up here for. Well, I came looking for green grass and water.

SCHMIDT: Slack owns nearly 600 acres of rich bottomland on the Flathead Reservation. He's not alone. Like other reservations in the west, the Flathead was opened to white settlement at the turn of the century. Now more than half the land belongs to non-Indians. Many of them dispute the tribe's right to set standards for water on their land. Slack says when he bought his property, he believed he would be subject to the laws of the state of Montana.

SLACK: I was told in no uncertain terms that I was buying a bonafide land the same as what I would buy anyplace else.

SCHMIDT: Slack points out that as a non-native, he's not allowed to vote for tribal council members. He says if the tribes have authority over his water, he's facing a situation of government without representation.

SLACK: Well, our concerns here as a family, as individual, is simply having a right to participate in setting regulations, and we have no doubt but that there's going to have to be regulations on maintaining the water quality. But we feel that there are things that we should all participate in, rather than being dictated to.

SCHMIDT: The state of Montana thinks the way to settle the controversy is through joint authority. They filed a lawsuit against the EPA, charging the Agency acted illegally by granting the tribes water quality authority over the entire reservation. Montana Attorney General Joe Mazurek says the state's position is that it has jurisdiction over non-Indian lands on reservations.

MAZUREK: It's not a question of whether the tribes have the capability to regulate. It's not a question of the standards that the tribe would set or enforce. It really is a basic, very basic sovereign question. I think it's more that the Federal Government should not pick one sovereign over another where we have a shared interest and a shared responsibility for enforcement.

SCHMIDT: But the Flathead Reservation is a patchwork of private and tribal lands, and EPA Regional Administration William Yellowtail says joint regulation would be virtually impossible.

YELLOWTAIL: Take a stream that runs across a checkerboarded land base. If you have conflicting water quality standards on one piece of property, that then meanders onto the next piece of property which is subject to a different set of standards, then you just have an unworkable situation.

SCHMIDT: The bigger issue is one of control. The Salish and Kootenai tribes say it's time the state of Montana recognizes that they're a sovereign nation and have the right to govern on their reservation. Still, tribal chairwoman Rhonda Sweeney says white residents can participate.

SWEENEY: They have all kinds of opportunity for participation through our administrative process, and many choose to join in that process and others don't. That's their choice. But the opportunity is there and they do affect the kinds of things we do.

SCHMIDT: Finally, swirling around the entire debate, are long-held grievances about white settlement. The Salish and Kootenai remain bitter about the forced opening of the reservation to white settlement. Sweeney says she thinks some non-native residents may be worried that the setting of water quality standards is part of a larger effort to eventually force them off their land.

SWEENEY: I feel that there's a great deal of fear. This reservation was illegally opened. Lands were taken illegally. People settled here illegally. I think that some folks are afraid that they'll be treated the way they treated others.

SCHMIDT: The tribes say that's not going to happen. But ranchers and farmers opposed to tribal control remain wary. They say while the standards may be reasonable now, the tribes could always tighten them in the future and they'd have no way to stop the process. Rancher Bill Slack rejects the notion that this dispute has its roots in the way the land was settled or lingering tension between Indians and non-Indians.

SLACK: This isn't a racial issue and it shouldn't be perceived as a racial issue. This is a -- this is a property rights issue, pure and simple. Do we own our property as property owners? Do we have a right to participate in this thing?

SCHMIDT: University of Montana Law Professor Ray Cross says this case has the potential for reshaping Federal Indian law. On the one hand, he says, if the courts uphold the tribes' authority to regulate for water quality, it will be an important pro-sovereignty victory for Native Americans. On the other hand, he says, ...

CROSS: If there is a restriction of tribal sovereignty to solely trust lands, then I think it's going to be a real setback because if tribes and states can't agree with respect to regulation of the resource, you have a potential for really disrupting any sort of meaningful environmental regulation.

SCHMIDT: A hearing on the case is expected early next year. The EPA is confident the court will uphold their action. But the fight may not end in court. A Clean Water Act reauthorization bill passed by the House would bar tribes from regulating non-native lands on reservations. Tribes, however, aren't waiting to see what happens. Currently, dozens of tribes across the country are in the process of establishing water quality programs on their reservations. For Living on Earth, I'm Jennifer Schmidt on the Flathead Reservation in Montana.