The St. Mary diversion works, which deliver water from the St. Mary River to the Milk River and provide the water for the Milk River Project’s irrigation supply downstream, are located on the Blackfeet Reservation in northwestern Montana. While the facilities were built on Blackfeet land, largely with Blackfeet labor, the Milk River Project did not provide any water to the Blackfeet Nation until a new compact with the State of Montana was passed in 2016. After the recent failure of drop 5, the Milk River Joint Board of Control (MRJBOC), the Bureau of Reclamation, and other agencies are working closely with the Blackfeet Nation to carry out repairs in a way that takes into account the tribe’s history, culture, and environment. In this interview, Blackfeet Nation member Jeanne Whiteing, who has a long career working with the tribe on water rights issues, discusses the intertwined history of the Blackfeet Nation and the Milk River Project and tells us about the current status of the projects repairs.
Irrigation Leader: Please tell us about your background and your work with the Blackfeet Nation.
Jeanne Whiteing: I’m an attorney in Boulder, Colorado. I went to law school at the University of California at Berkeley. I started my career in Boulder with the Native American Rights Fund. I am a member of the Blackfeet Nation and have worked for the tribe throughout almost my entire legal career, mainly on water rights issues.
Irrigation Leader: What are your thoughts on the St. Mary Canal failure?
Jeanne Whiteing: The facilities of the Milk River Project divert water from the St. Mary River on the Blackfeet Reservation through a 29-mile transbasin canal and drop it into the Milk River, which carries it up into Canada and back down into Montana. While the diversion facilities are on the Blackfeet Reservation, the project does not actually serve or provide any benefit to the Blackfeet Nation. However, whenever any of the facilities fail, it definitely has an impact on the tribe. This particular failure has an impact on surrounding lands, some of which are held and owned by the tribe and some of which are owned by tribal members. If there’s a lot of water in the canal during a failure, which fortunately was not the case this time, it could pose a real danger to tribe and reservation property. We appreciate the fact that Reclamation, the MRJBOC, and others immediately informed the tribe of this failure and included the tribe in the decisionmaking process on fixing the facilities.
Irrigation Leader: What are your thoughts about the repair process?
Jeanne Whiteing: I think everybody wants to see these repairs proceed as quickly as possible. The tribe understands that this water is essential to the Milk River Project, and the tribe has been pleased that the MRJBOC and Reclamation have consulted with it on the repairs, including consultation with the tribe’s cultural program, the tribal historic preservation offices, the Blackfeet environmental office, and the Blackfeet water office. They have acknowledged the tribe’s role in the process from day 1. That is a significant advancement from what has been the case in the past, and it is much appreciated by the tribe.
Irrigation Leader: What is your message to Congress and Reclamation?
Jeanne Whiteing: Safety is the tribe’s primary concern. It is always in everybody’s interest to ensure that the project is safe and in good repair. We want to make sure that these facilities do not cause any damage or other issues on the reservation in the future. We certainly hope that the repairs are done quickly.
As I mentioned, the tribe itself doesn’t currently benefit from the project. It will start benefiting from the project soon, since a 5,000-acre-foot allocation was provided for the tribe in the tribe’s 2016 Water Rights Settlement Act. That actually will not be completely put into place until we enter into an agreement with Reclamation.
The project has historically been a concern to the tribe. A lot of people don’t understand that these facilities are on the Blackfeet Reservation and that the Blackfeet Nation played a prominent role in its construction. The St. Mary River arises in Glacier National Park, flows directly onto the reservation, and then flows north off the reservation into Canada. It is the subject of the Boundary Waters Treaty of 1909 between the United States and Canada. The St. Mary facilities were also initially constructed over 100 years ago now, largely with labor from the Blackfeet Nation. They divert almost the entire U.S. share of the St. Mary River over to the Milk River Project.
The fact that the United States diverted so much water from the Blackfeet Reservation and didn’t provide any benefits from the water to the Blackfeet Nation has been perceived as a major historical wrong. There are differing positions on the project as a whole because it diverts so much water from the reservation and provides no benefit to the tribe. At the time of the Boundary Waters Treaty and the construction of the Milk River Project, the Winters Doctrine was also coming into being. The Winters Doctrine, which came from a 1908 U.S. Supreme Court decision involving the Milk River and the Fort Belknap Indian Community, defines the concept of federal reserved water rights for tribes, which is applied to this day. However, when the project was initiated and when the Boundary Waters Treaty was negotiated, Indian water rights were not considered, and the Milk River Tribes were not at the table, even though the Winters Doctrine was contemporaneous with these events. That is why there is still the feeling that a historical wrong was perpetrated in the undertaking of the Milk River Project. Therefore, in any rehabilitation or reconstruction of the project facilities, the tribe will be looking for potential benefits and the continuing recognition of its role as a stakeholder.
The tribe has since defined and quantified its water rights in a compact with the State of Montana, which was ratified by Congress in 2016. However, while the compact did provide a 5,000-acre-foot allocation to the tribe, it didn’t really change anything relating to the Milk River Project or the diversion of water for the project. The compact also includes some provisions and legislation relating to the operation and maintenance of the Milk River Project and stipulates that the Blackfeet Nation now has to be consulted regarding any repairs to the project. We consider all of that an advancement from what had been the case. We think we still have a way to go to correct the historical wrong of the diversion of water from the reservation, but this is a start.
Irrigation Leader: What are the Blackfeet Nation’s plans for the 5,000 acre-feet?
Jeanne Whiteing: It is still too early to say. No specific plans have been identified yet. We will be focusing on that once we have the agreement with Reclamation in place. The water will be delivered to the canal, and we will have to figure out a way to deliver it from the canal to the tribe, since there aren’t any diversions off the canal on the reservation right now. How we do that will depend on the particular use that we’ve identified for the water. There is also a lot of interest from tribal members along the canal in either stock water or irrigation water, and we definitely want to respond to that interest. There is also the potential for marketing the water downstream.
Jeanne Whiteing is an attorney in Boulder, Colorado. She can be contacted at jwhiteing@whiteinglaw.com.