Montana Code Annotated

Mont. Code Ann. § 85-2-702 (2026)

Negotiation With Indian Tribes

✓ current as of May 2026

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TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 7. Indian and Federal Water Rights -- Water Rights Within Indian Reservations

Negotiation With Indian Tribes

85-2-702. Negotiation with Indian tribes. (1) The reserved water rights compact commission, created by 2-15-212, may negotiate with the Indian tribes or their authorized representatives jointly or severally to conclude compacts authorized under 85-2-701. Compact proceedings must be commenced by the commission. The commission shall serve by certified mail directed to the governing body of each tribe a written request for the initiation of negotiations under this part and a request for the designation of an authorized representative of the tribe to conduct compact negotiations. Compact negotiations commence upon receipt of the written designation from the governing body of a tribe.

(2) When the compact commission and the Indian tribes or their authorized representatives have agreed to a compact, they shall sign a copy and file an original copy with the department of state of the United States of America and copies with the secretary of state of Montana and with the governing body for the tribe involved. The compact is effective and binding upon all parties upon ratification by the legislature of Montana and any affected tribal governing body, and approval by the appropriate federal authority.

(3) Upon its ratification by the Montana legislature and the tribe, the terms of a compact must be included in the preliminary decree as provided by 85-2-231, and unless an objection to the compact is sustained under 85-2-233, the terms of the compact must be included in the final decree without alteration. However, if approval of the state legislature and the tribe has not been accomplished by July 1, 2013, all Indian claims for reserved water rights that have not been resolved by a compact must be filed with the department within 24 months. These new filings must be used in the formulation of the preliminary decree and must be given treatment similar to that given to all other filings.

History: En. Sec. 27, Ch. 697, L. 1979; amd. Sec. 8, Ch. 268, L. 1981; amd. Sec. 6, Ch. 667, L. 1985; amd. Sec. 2, Ch. 358, L. 1987; amd. Sec. 3, Ch. 784, L. 1991; amd. Sec. 2, Ch. 44, L. 1997; amd. Sec. 2, Ch. 103, L. 2003; amd. Sec. 2, Ch. 5, L. 2009.

Notes of Decisions

Cited in 12 cases, 1985–2017 · leading case: Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63 (Mont. 2007).

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Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63 (Mont. 2007). · cites it 20× “The Tribes explained that they were in negotiation with the Montana Reserved Water Rights Compact Commission to quantify their reserved water rights ( see § 85-2-702, MCA) and that they were seeking with their request for injunctive relief "to maintain the status quo" until the…”

State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985). · cites it 6× “The terms of any ratified compact must be included in the Water Court’s final decree without alteration, unless the State and the tribe have given prior written consent.”

In Re the Crow Water Compact, 2015 MT 217 (Mont. 2015). · cites it 8× “Pursuant to § 85-2-702(3), MCA, the Water Court has limited discretion in this process.”

Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Stults, 2002 MT 280 (Mont. 2002). · cites it 8× “¶ 23 Our 1996 decision in Ciotti held that the State may not issue new water permits on the Flathead Reservation until the Tribes' prior and preeminent federally reserved water rights have been quantified, either by a general inter sese water rights adjudication or by compact…”

Confederated Salish & Kootenai Tribes v. Clinch, 1999 MT 342 (Mont. 1999). · cites it 8× “¶ 13 We held that because the Water Use Act requires that an applicant for a water use permit prove that it will not unreasonably interfere with the Tribes' reserved water rights and because of the nature of Indian reserved water rights: [S]uch a showing cannot be made until the…”

State Ex Rel. Greely v. Water Court of State, 691 P.2d 833 (Mont. 1985). · cites it 3× “" Section 85-2-702(3), MCA. VI. In responding to these issues, none of the parties to this proceeding waive any factually-based challenge to jurisdiction or to the adequacy of a determination of rights by the water courts.”

In re the Beneficial Water Use Permit Nos. 66459-76L, Ciotti 64988-g76L, Starner, 923 P.2d 1073 (Mont. 1996). · cites it 4× “The Tribes contend that until their reserved water rights have been quantified by a compact negotiation pursuant to § 85-2-702, MCA, or by a general inter sese water rights adjudication, an applicant cannot meet his burden of proof pursuant to § 85-2-311, MCA, and DNRC will not…”

In Re the Crow Water Compact, 2015 MT 353 (Mont. 2015). · cites it 2× “¶10 Pursuant to § 85-2-702(3), MCA, the Compact must be published upon ratification and “must be included in the preliminary decree as provided by 85-2-231, and unless an objection to the Compact is sustained under 85-2-233, the terms of the Compact must be included in the final…”

Matter of Beneficial Water Use Permits, 923 P.2d 1073 (Mont. 1996). · cites it 4× “The Tribes contend that until their reserved water rights have been quantified by a compact negotiation pursuant to § 85-2-702, MCA, or by a general inter sese water rights adjudication, an applicant cannot meet his burden of proof pursuant to § 85-2-311, MCA, and DNRC will not…”

Flathead Jt. Bd. of Control v. State, 2017 MT 277 (Mont. 2017). · cites it 4× “FACTUAL AND PROCEDURAL BACKGROUND ¶3 After many years of negotiation, representatives of the State of Montana, through the Reserved Water Rights Compact Commission, provided for in § 85-2-702, MCA, the Confederated Salish and Kootenai Tribes (CSK), and the United States agreed…”

W. Montana Water Users Ass'n, LLC v. Mission Irrigation Dist., 2013 MT 92 (Mont. 2013). · cites it 3× “Section 85-2-702, MCA. ¶9 The State of Montana, the Tribes, and the United States negotiated a proposed Compact to settle the Tribes’ water rights claim.”

State Ex Rel. Greely v. Mt. Water C (Mont. 1986). · cites it 5× “Section 85-2-702, MCA. In order to be binding, a negotiated compact between the State and tribe must be ratified by the Montana legislature and the tribe.”

— Mont. Code Ann. § 85-2-702(3) — 4 cases

In Re the Crow Water Compact, 2015 MT 217 (Mont. 2015). “Pursuant to § 85-2-702(3), MCA, the Water Court has limited discretion in this process.”

State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985). “The terms of any ratified compact must be included in the Water Court’s final decree without alteration, unless the State and the tribe have given prior written consent.”

State Ex Rel. Greely v. Water Court of State, 691 P.2d 833 (Mont. 1985). “" Section 85-2-702(3), MCA. VI. In responding to these issues, none of the parties to this proceeding waive any factually-based challenge to jurisdiction or to the adequacy of a determination of rights by the water courts.”

In Re the Crow Water Compact, 2015 MT 353 (Mont. 2015). “¶10 Pursuant to § 85-2-702(3), MCA, the Compact must be published upon ratification and “must be included in the preliminary decree as provided by 85-2-231, and unless an objection to the Compact is sustained under 85-2-233, the terms of the Compact must be included in the final…”

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