With land comes water
After establishing the basis for tribal water rights more than a century ago, the Aaniiih and Nakoda tribes close in on a $1.3 billion settlement
Story by Alex Mitchell. Photos by Kennedy Delap.
Where century-old water systems are failing, it becomes Fort Belknap irrigation manager Craig Adams’ job to fight torrential rivers and creeks each spring to keep the water.
Retaining the water requires a 16-foot by 11-inch wooden plank and another willing swimmer to cross the freezing waters of the Milk River. Adams, an enrolled member of the Gros Ventre tribe, dams up the main gutter of the 300-foot-wide spillway — typical in guiding water — to compensate for the lack of a gate. It’s the only way he knows to capitalize on the water.
Without this process, ranchers and farmers along the river will struggle to have enough water later in the season as upstream tributaries run dry.
“Years before, they never did worry about that. They must’ve thought it too dangerous,” 36-year-old Adams said after climbing a railing covered in late winter snowfall up to the small bedroom-sized concrete platform meant to operate the spillway.
Downstream of the Milk River at White Bear Creek, water seeps through cracks in eroding concrete. Some water diversion gates have stopped working. Deteriorating infrastructure has left Adams to do patchwork boarding jobs as a common solution. Funding on the reservation hasn’t been there to support improvements.
According to tribal leaders, neither has the federal government. That could change soon. After a major concession with LandBack, Fort Belknap has been pushing more than ever to reach a potential $1.3 billion water settlement to improve their struggling agriculture-based economy’s outlook. The act for the settlement is now planned to be introduced in Congress this May. It could be their last chance, as a Supreme Court case threatens tribal water rights across the nation.
Fort Belknap is the last Montana reservation to not have reached a water settlement. They are in their 42nd year pushing for a deal. The Fort Belknap government chose to negotiate in 1981 instead of choosing litigation that would leave the tribes without the money they need to build upon their entitled water.
The reservation serves as the origin for superior water rights for reservations across the country. In 1908, the Supreme Court ruled in Winters v. United States that tribal members on Fort Belknap were entitled to water first from Milk River. This meant Fort Belknap and other reservations could use water before non-tribal irrigators. Still, problems with water persist.
Creating a permanent homeland
Superior water rights originate from treaty rights establishing reservations, like the Sweetgrass Hills Agreement that established Fort Belknap in 1888. In exchange for the secession of land and the promise of peace, tribes were entitled to a permanent homeland. That goes beyond land. What is considered at the heart of the idea of a permanent homeland is access to resources like water that meets a reservation’s needs. From the Winters v. United States ruling, without the government honoring and safeguarding their water needs and rights, it would “destroy the reservation” leaving them with “a barren waste.”
“The government has just let things sit, idle and fall into sorry shape,” Fox, an enrolled member of the Gros Ventre, said. “To irrigate everything by gravity, I always say it’s a miracle just to get that water delivered farm-to-farm. They just have to be creative with the dilapidation of it all.”
Water systems have been neglected by the federal government, with maintenance significantly deferred, according to the reservation’s water resources department administrator Kristal Fox. Much of the settlement funding for the Fort Belknap Indian Community, or FBIC, would first go to modernization and rehabilitation of irrigation systems. Lands that have gone unused would be revitalized.
Current systems have led to arid reservation land between Blaine County and Phillips County, land dappled with brown splotches in the summer as farmlands struggle to get water. Similar farmlands in the bordering counties often remain green.
Irrigators in the counties benefit from having proper drainage, electric pumps providing push for water and a dam system that works better for them.
Downstream of the Milk River at the Dodson Dam, Phillips County starts collecting runoff from snow as early as mid-March. They use a bladder system that can be inflated across the top of the dam to retain water for irrigators’ future water needs. Meanwhile, Fort Belknap waits for ice to fully thaw before they can use their early 20th-century system to collect and divert water.
Fox, who first started working for the reservation as a water resource administrative assistant in 1989, said the reservation has received criticism for being slow to take advantage of agricultural cost-share programs. Most of the programs started in the 1980s and could have reduced the cost of irrigation projects on the reservation. Yet the tribes barely got the chance to use such programs.
“All these non-Indians, they were privileged to these cost-shares, and we weren’t ever taught how to use them,” Fox said. “We just weren’t privileged to use that money.”
In the water settlement, following the modernization and rehabilitation phase, is the construction of projects like a significant dam and reservoir that could be relied on to store the tribes’ water from the Milk River for the reservation.
The development of the dam would allow for non-irrigable lands to be better utilized in the predominantly agricultural economy. Roughly 16,500 acres of land on the Milk River would then become available for farming, according to Woldezion Mesghinna, president and principal engineer of Natural Resources Conservation Engineers and project designer for plans associated with the water settlement.
Fox has pushed for the settlement for the last decade after coming into the top administrator position. She believes “time is of the essence” to complete the water settlement.
One reason stems from climate change. Fort Belknap has faced successive, exceptional droughts. The droughts in the Montana Hi-Line have only deepened struggles to get enough water for everyone.
Another reason is an ongoing Supreme Court case that could negate the basis for tribal superior water rights nationwide. Heard by the court in March this year, Navajo Nation v. Arizona challenges Navajo Nation water claims on the Colorado River.
Given the conservative court’s recent ruling against historical tribal sovereignty in the 2022 Oklahoma v. Castro Huerta case and scarcer water across the nation, reserved water rights that serve as the basis for dozens of tribal water settlements and claims could be threatened.
Fox said now the tribes are approaching that settlement with a “first and foremost” focus on securing and maintaining their water rights. Recent negotiations with the United States Department of the Interior this year helped determine the $1.3 billion to be included with the settlement.
This has led tribal leaders to leave out 15,000 acres of the Grinnell Notch originally considered part of the land included with the settlement. It is land sacred to the Aaniiih & Nakoda tribes. It was included in negotiations with the settlement in the last couple of introductions to Congress, but has been removed to get other parties’ approval in negotiations.
Losing a mountain
Used for hunting and spiritual ceremonies by Fort Belknap tribes, what was known as the sacred site of Spirit Mountain was ceded by Fort Belknap under the threat of starvation in 1895 as prospectors pursued gold in the Little Rockies. The notch was named after George Grinnell, one of the federal negotiators, who was later influential in the establishment of Glacier National Park and the Audubon Society.
After decades of gold mining tearing apart the landscape, Spirit Mountain is a third of the height it used to be. What’s left from the mining is toxic sludge from the open-pit cyanide heap-leach mines used to retrieve gold. FBIC and others filed suits for violations of the Clean Water Act throughout the 1990s for flooding drinking water with excesses of arsenic, nickel, and iron.
The suits contributed to the mines’ owner Pegasus Gold filing for bankruptcy in 1997. The Environmental Protection Agency declared the area a Superfund site two decades ago. It is now the perpetual responsibility of the state and the nation to maintain clean-up of the mines. With the section of the Grinnell Notch initially included in the water settlement, having that land was considered necessary for the tribes to provide oversight of the southern watershed.
Water quality remains a problem on the reservation, with some tribal members still choosing not to drink the water. The settlement aims to provide infrastructure for a clean and safe domestic water supply.
When Assiniboine FBIC council member Tracy “Ching” King was president in 2013, he testified before the U.S. House of Representatives Committee on Appropriations for increased funding for existing on-reservation water treatment plants. The plants were on the verge of having to temporarily shut down because the reservation only had less than a third of the $750,000 needed to maintain clean drinking water.
Concerns around cancer-causing contaminants like arsenic from the mines in their drinking water are still prevalent. Waters on and off the reservation from the mine have been treated unequally by the government and their management of it, according to King.
“The only thing I see when I go out there is racism,” King said. “They want to see us dead.”
On the side facing Phillips County, King mentioned two significant water treatment plants to treat the acid drainage from the mines. Yet for the water coming through the reservation’s Swift Gulch, they have had a treatment plant the size of a “porta-potty,” he said.
Currently, the Swift Gulch treatment plant’s capacity is about half of the capacity of one treatment plant and a quarter of the other treatment plant off reservation.
Environmental Protection Agency Water Quality Coordinator Mitchell Healy said the Montana Department of Environmental Quality (DEQ) have refused his attempts for a larger expansion of the treatment plant. He said the DEQ said there isn’t enough space. He said he sees more than enough room for an expansion.
According to Healy, an enrolled member of the Assiniboine tribe, the treatment plant runs out of capacity with spring run-off. Then, contaminants like iron are carried further downstream every year, harming ecosystems along the way.
“These waters originate from the mines and flow onto the reservation, through cultural areas, and threaten the further downstream areas where tribal members swim, fish, gather medicinal plants and berries,” Healy said. He is the tribal representative for the group working on projects to maintain mine cleanup.
Montana DEQ cannot confirm whether iron contaminants continue to migrate further downstream each year. DEQ Mining Environmental Specialist Wayne Jepson said in an email that since building a structure meant to retain iron-rich sediment in 2018, the absence of iron staining the structure proves they are now effectively trapping most, if not all of the sediment.
Jepson stated while the treatment system built in 2008 was “simple,” they have continually improved its effectiveness and capacity. The Swift Gulch treatment plant now produces “similar if not slightly better quality water compared to the other water treatment plants.”
Fort Belknap’s Aaniiih Nakoda College regularly conducts studies showing poor water quality coming from the mines. A 2021 report utilizing EPA procedures noted that aquatic organisms introduced to water samples from Swift Gulch would die in a day or less – a sign of toxic water.
“We found that the contamination from the mine, as it continues toward the reservation, is rapidly moving with rain or storm events,” the report stated.
The decision to remove the notch has proved successful for Fort Belknap to surpass past opposition. Phillips County commissioners who had been historically opposed to the settlement wrote a letter of support in April. Gov. Greg Gianforte, who opposed the settlement when he served as a U.S. representative, pledged his support in March.
Both people were considered crucial in getting Sen. Steve Daines’ first-time backing as tribal leaders looked to reintroduce the bill related to the settlement. And now both Sen. Daines and Sen. Jon Tester will co-sponsor the bill this May, according to FBIC Tribal President Jeffrey Stiffarm. Things are beginning to move a lot faster with the settlement, he said, with the bill hopefully included as part of the annual defense bill to be approved by Congress this fall.
With the settlement, the reservation would still receive roughly 44,000 acres of land back in trust for the tribes, adding to the 675,000-acre reservation. The land would allow for greater control of water on the reservation and return some lands taken from the tribes over the past 150 years.
Internal opposition and different administrative perspectives have slowed down progress on the already arduous process of achieving a water settlement. It has taken 42 years for the settlement to have gotten this far.
Stiffarm, who’s since been to Washington D.C. several times pushing the water settlement, used to be opposed to it. When he was a Gros Ventre council member, he signed a letter in 2018 with the Gros Ventre Treaty Committee (GVTC) addressed to former Secretary of the Interior Ryan Zinke wanting the settlement to be rejected.
The letter states the Gros Ventre tribe never gave proper consent to the settlement, although treaty rights are considered to entitle them to such an individual authority. The letter refers to the 1851 Fort Laramie Treaty and the 1855 Blackfoot Treaty. Both recognized the Gros Ventre’s status as an individual tribe.
After a March meeting seeking the governor’s approval in the Capitol, Stiffarm said when he became president, he adapted to the needs of the entire reservation.
“Now, I got to look out for both tribes,” Stiffarm said. “I had to reverse my role and support the water settlement. Without this settlement, my guess is in about five to 10 years down the road we’re not going to be able to water our crops or water our livestock. We’re going to have nothing to support clean drinking water. So, the bigger picture here is that we got to push this water settlement for our children and our grandchildren.”
He embraced his nine-year-old son A.J., who he brought with him to the meeting.
Still, tribal opposition to the settlement remains, which could prove a final stopping block for the settlement because enrolled members will ultimately vote on the settlement.
William “Snuffy” Main, GVTC Chair for the past 21 years, said the concerns of the Gros Ventre tribe have been brushed aside.
Main believes the settlement ignores their tribal history, given the Gros Ventre had individually reached settlements as recently as 1983. He would instead like to see each tribe reach an individual settlement.
“And now because of our identities as historical tribes, they’re trying to whitewash that,” Main, 62, said. “And they came up with this term, the Gros Ventre and the Assiniboine tribes of the Fort Belknap Indian Community. There’s no such thing. And so to me, it’s basically a form of genocide. If the United States Congress passed a bill the way that it’s titled, what does that do to the individual, historical tribes here who both have unique treaties?”
Driving his pine green truck on the south side of the reservation, Main notes the struggles he has seen with the water. Fish are still absent from polluted streams. In some areas, streams are still stained orange with contaminants from the mine, just fainter.
Creeks that used to run throughout the year only run in the spring. The “rinky-dinky” treatment plant facing the reservation struggles in comparison to the “big, sophisticated” treatment plants facing off-reservation. Ranchers and farmers are shrinking on the reservation with rising costs and difficulties obtaining water playing a contributing factor.
Yet Main remains steadfast in his opposition to the settlement. At South Fork Little People’s Creek, Main stands before a stream surrounded by the hundred foot limestone walls of the Mission Canyon. He said the settlement would ultimately limit what they could do with the pristine water they have, like with Little People’s Creek.
“And quality wise, it’s the best stream for agricultural purposes,” Main said. “But under that compact with the state, our leaders gave up their water rights completely.”
Given how a water settlement works, it would quantify how much water belongs to the tribe in its four primary water systems. He says it would restrict the options the tribes could pursue with the water settlement in the future. The reservation only gets one chance to settle their rights Main said. If their rights are settled now, future water difficulties might be hard to find solutions to.
Fox believes the obstacle of tribal opposition is something they will prevail over.
“It’s been really hard to deal with opposition, but I have great faith our people will pass it, because without this settlement, we will have no money to manage our own water,” Fox said. “Do we forfeit all our settlement money and let all that money go down the drain? I don’t think so.”
Without the settlement, the tribes would have to resort to costly litigation to secure their water rights. It’s a time-consuming option and every irrigator using the same water sources the reservation does could be party to the lawsuit. In the suit, all the tribes could do is secure paper rights for water. There would be no money to develop and improve systems on their current access to water, leaving them with their current water troubles.
It’s an option that both irrigators on and off the reservation would be unhappy with. The settlement plans for $275 million to improve the upstream system with the St. Mary’s Canal restoration, a more-than-century-old system that contributes to the Milk River 250 miles west of Fort Belknap.
“This is just us being good neighbors,” Gros Ventre FBIC Council member Geno Levaldo said. “We’re all Montanans as well who have been here for generations, and realities are it’s getting tougher to get water. Water is life right now.”
In his 14 years taking care of irrigation systems for Fort Belknap, Adams said he’s learned how to navigate a system regularly failing him and the reservation. A few years ago a cable on the platform that diverted upstream debris snapped, leaving Adams to plunge in the waters to fix it.
“We try not to use this because it’s become not so trusty. If you break it, then we gotta go down and take care of that. Then it’s another day or two of trying not to kill yourself,” Adams said, chuckling as he grasped the rusting valve that operates the chain to open a diversion pipe. Adams and others working on the irrigation have learned other methods, like using the combination of a backhoe and a hook to fish trash out.
After Adams spends long days up irrigation ditches while damming up others, he returns home to his 900-acre ranch where endless tasks often end in sleepless nights for him.
Like other ranchers and farmers on the reservation, he experiences the same problem with the century-old gravity-based irrigation system. More than a hundred acres of his land is unirrigated and far from properly utilized. And for other sections in the hotter months he has to engage in the bargaining process others all eventually have to do for the drippings left over in the Milk River.
He’s tried to remedy his own irrigation problems with plastic tarps laid around his house and ranch to keep water. His efforts have only been somewhat successful. One project he considered to irrigate some of the non-irrigable land he owns only offered an inch of water for the whole area, about a week’s worth of water for the average crop. It was far too costly and impractical for him and his family who he said have learned to live on a diet of bologna sandwiches.
While Adams isn’t too familiar with the water settlement, he said it would make life a lot easier with water being able to be pumped much faster. Adams said it might take years to fully rectify the effects of their irrigation systems with drainage problems leaving former farmland to become unusable and dominated by willows.
He’s used to waiting though. He continues waiting for irrigation projects that seemingly never materialize.
“What I’ve found is that what you can do is hope for the best, but you plan for the worst,” Adams said.
A SPECIAL PROJECT BY THE UNIVERSITY OF MONTANA SCHOOL OF JOURNALISM
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