WSP03082

• File Number: 8064
• Description: Section "D" General Federal Issues/Policies - Indian Water Rights
• Date: 4/19/1985
• Title: Final Report of Tribal Negotiating Team to Fort Peck Tribal Executive Board of Fort Peck-Montana Water Compact
• Water Supply Pro - Doc Type: Report/Study

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only by presenting evidence more persuasive than is presented
by any challenger. Any challenge to proposed tribal water
marketing must proceed in court and not before any state
administrative tribunal.

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The legal authority for tribal water marketing
implicates federal law as well as the Compact. The Indian
Trade and Intercourse Act, 25 U.S.C. 177, bars conveyances of
Indian resources without congressional authorization. Congress
has authorized tribes and allottees to lease natural resources,
which include water, when leasing trust or restricted land, 25
U.S.C. 415. In addition, some tribes have entered into water
marketing agreements of various sorts, and where challenged
these agreements have been sustained. United States v. Ahtanum
Irrigation Dist., 236 F.2d 321 (9th Cir. 1956). To be safe,
however, the tribal negotiating team decided to seek specific
conqressional authorization of the Tribes' water marketing
authority. In Article XII, the Tribes and the State agree to
petition Congress to enact legislation patterned after the
Indian Mineral Development Act ~a 1982, 25 U.S.C. 2101 et ~.
(Tr. Feb. 28, 1985, pp. 35-36). This is the only
congressional legislation reauired in the Compact.

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Finally, it should be noted that Article III of the
Compact places two significant limitations on the State with
respect to tribal water marketing. First, as noted, under
paragraph 3 of Section K, the State must offer the Tribes
substantially equal participation in any state water marketing
opportunity in Fort Peck Reservoir or from the mainstem of the
Missouri River below the Dam. (The United States has agreed
that the State can market up to 300,000 acre-feet from Fort
Peck Reservoir, but state law has not yet implemented that
large an authority.) Second, in paragraph 7 of Section K the
State agrees not to tax the proceeds the Tribes receive from
water marketing. This was agreed to February 28, 1985 (Tr. p.
14) .

(2) Background

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From the earliest part of the negotiations, the
Tribes expressed an interest in having their authority to
market water outside the Reservation confirmed in any
settlement that was reached. This was discussed at the first
meeting in Billings on December 12, 1980 (Tr. 53-58). In
October 1982, after substantial negotiations, Chairman Loble
agreed in principle to tribal water marketing authority in

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n t e negot1at1ons,
Governor would also support
1985, pp. 35-36.)

the Commission agreed that the
such legislation. (Tr. Feb. 28,