©2013 Concerned Citizens of Western Montana
AN UNCONSTITUTIONAL TAKING…. OF OUR RIGHTS
There are many legal and constitutional issues with the compact, but this article focuses on the component referred to as “the ordinance”.
The Unitary Management Ordinance, or UMO is by far the most egregious aspect of the Flathead Water Compact. Let us be blunt. IT VIOLATES GUARANTEES OF EQUAL PROTECTION UNDER THE UNITED STATES AND MONTANA CONSTITUTIONS.
The Equal Protection Clause in the United States Constitution is part of the Fourteenth Amendment. It provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.
Article II Section 4 of the Montana Constitution states:
The dignity of the human being is inviolable. No person shall be denied equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminated against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.
The UMO removes a class of citizens, non-Indians that live within the reservation boundaries, from the protection of the state of Montana concerning their water rights. How does giving the tribe control over the water needs of 23,000 non-Indians on the reservation come close to being an equal application of the laws and constitution of the state of Montana?
How is it that the state can tax non-Indians on fee simple land within reservation boundaries, but not afford them the same legal and constitutional protections as all other taxpayers in the state?
SOME THINGS ARE JUST NOT NEGOTIABLE
The UMO is born out of the tribes’ insistence that they own the water and as such, should be able to manage it as a “Unitary Resource”. The tribe proposed it in 2001, 2007 and 2010. Persistence really does pay off, because after many years of demanding Unitary Administration, the state caved and it is now in the compact.
Granted it is masked with 100 or more pages that attempt to give the public the impression it will protect them by mirroring state law, but the reality is that it’s not the same, and any law is only as fair as the people in authority allow. The unitary management board will consist of tribal members, business owners afraid to speak out against the tribe if necessary, or with people who likely will have economic ties to the tribe such as leases.
When asked at a public meeting what would happen if the UMO were dropped from the compact, John Carter, attorney for the tribe stated: “If the board is removed from the compact, the mechanism for the compact to move forward ceases. It’s pretty much that simple.”
So there you have it, the UMO is pretty much non-negotiable. Why you might ask?
Because controlling the water is the equivalent of owning the water, and it gives tribal leaders control over non-Indians within reservation boundaries. In other words, the UMO effectively gives the tribe everything they’ve held out for from the very beginning of negotiations.
You have to give the tribe credit. Throughout the decades they consistently held firm on issues that were non-negotiable to them.
What about the state? Were there any principles they adhered to in the negotiations? Apparently not, because the compact commission conceded non-Indian rights on the reservation for the sake of achieving a “negotiated settlement”. Our protections were conceded as a bargaining chip for the talking point that the tribe would kinda sorta “protect existing uses of water.”
GOOD FAITH NEGOTIATIONS? NOT SO MUCH
The definition of insanity is doing the same thing over and over again and expecting different results. Common sense and logic would seem to dictate that if one party is unwilling to negotiate year after year on issues that the state deems to be non-starters, or unacceptable for the protection of its citizens, that the parties involved would fast forward to adjudication.
Not so with this compact commission. After all, careers and reputations are on the line. Dozens of books and legal documents have been written touting the great success of Montana’s negotiation approach to settling Indian reserved water rights.
After decades of on again and off again negotiations, the work product of the commission speaks volumes about the flawed compacting process. A look at the documents indicates the motivation to reach an agreement no matter what the cost to the people of Montana whether it be adverse to them economically, financially or in the cavalier removal of their protections under state laws and constitution.
With thirty years of compacts under their belt, and few people coming to the commission’s public “negotiation” sessions, the compact commission figured the Flathead water compact was going to be a piece of cake. They had fine-tuned their talking points, rationalized the more illegal aspects of this so-called agreement, and counted on the fact that after so many years, people would be relieved to have the compact over with at last.
What they did not count on was that people would actually do their homework and read the documents.
BULLIES AT THE TABLE
You have to live on the reservation to appreciate tribal politics. At more than one of these so-called open and transparent negotiation sessions, the public was told that if we didn’t like it here, the person speaking would be happy to walk us to the border of the reservation. It defies logic that tribal leadership, a group very few in number, could hold 28,000 or so residents “hostage”, but in 2013 that is exactly where political correctness gets you.
People are afraid to speak out against what one negotiating attorney called the “bullies at the table” (privately of course). The possibility of being removed from the protection of the state of Montana and placed under the jurisdiction of a board that will absolutely be tribally-controlled should send chills up the spine of anyone who cherishes their freedom and property rights. Rest assured, there will be little if any development from that day forward, for better or worse, for richer or poorer, in sickness and health, till hell freezes over.
This type of control is very suspect when you realize that the tribe’s mission statement says they want to acquire all land within the reservations exterior boundaries.
Proponents tout the UMO to be a good thing because it gives “local control” to water management. Isn’t local control much better than the poor excuse of the DNRC and the Montana Water Court they ask?
The answer is a resounding NO when you consider these few carefully placed words: tribal grandstanding, threats, and intimidation. They are unafraid of using these methods on their own people, and if given the opportunity will not hesitate to use it on others in order to achieve their objectives and agenda.
WELCOME TO THE UMO
We said earlier that the UMO board will be tribal. How could we possibly know that? Because we already have a real life example: THE COOPERATIVE MANAGEMENT ENTITY for the Flathead Irrigation Project, also known as the CME.
In 1904 Congress authorized allotments of reservation land to members of the Confederated Salish and Kootenai Tribes, and construction of the Flathead Irrigation Project. In 1908, Congress authorized the construction of irrigation systems for homesteaded lands within the reservation, and called for the eventual turnover of the operation to owners of lands served by the irrigation project after construction costs were repaid.
For decades, irrigators wanted to transfer management of the project away from the BIA and into the hands of irrigators. This option was vehemently rejected by the tribes, and the sad reality is that eventually people wear down to the demands of tribal leadership and attorneys. After many contentious years fighting with the tribes, the Flathead Joint Board of Control (FJBC) agreed to turn over the operation and maintenance of the project to a CME in 2010. At the time, the CME was touted to be an innovative approach to managing the project, unlike any other in the country. The FJBC allowed the CME board membership to be composed of 4 tribal members and 4 FJBC members despite the fact that non-Indian irrigators own 90% of the land served by the Flathead Irrigation Project. There also is no requirement that tribal appointees be irrigators, people who know and understand the project. In reality Board membership should be irrigators, and representation should reflect the land ownership within the project.
Since the transfer, the public’s been told the project has never been managed as well as it is now. This might be true, but then again the quality of management is in the eye of the irrigator. The recent JBC elections demonstrate that things only tend to run smoothly if the majority of board members agree with tribal decisions.
Prior to the May 2013 election, the make up of the board was 4 tribal appointees. FJBC appointees included 1 tribal member and 3 other JBC appointments of individuals at least some of which hold significant tribal leases. In other words, the makeup of the board was tribally controlled.
Here are some real life examples that should raise serious questions about the agenda of this board, and its adherence to the transfer agreement and state law:
PUBLIC MEETINGS: The CME Transfer Agreement says that public meetings will be in accordance with Montana law which clearly states that the meeting agenda must include an item allowing public comment on any matter not on the agenda within the agency jurisdiction.
In April, the tribally controlled board of the CME voted in a policy mandating that questions and comments must be submitted to the CME board at least seven days ahead of time, and may or may not be approved.
TIE VOTES: With a four-four board, the crafters of the CME transfer agreement anticipated tie votes. The agreement states that a tie vote with all members present is a failed vote.
Unfortunately in recent CME meetings, only some 4-4 decisions fail, while others magically move forward as though there was never a failed vote and that the motion was passed.
Why would anyone with an ounce of common sense think the UMO will be any different? The short answer is that it won’t.
WITH OR WITHOUT PREJUDICE?
Last year, a tribal member spoke to us about the Unitary Management Ordinance. They emphatically said “there is no way the tribe will administer water rights to non-Indians on the reservation without prejudice.” This person went on to say “Let me repeat that. There is no way the tribe will administer water rights to non-Indians on the reservation without prejudice.”
Sadly, we have no choice but to agree with this tribal member’s condemning assessment of tribal bias against anyone who is not on board with their agenda, tribal members included. This excerpt from the Charkoosta News dated 7/25/13 demonstrates how tribal leadership deals with people who oppose their agenda, it this case the compact and the UMO:
Burland said that in his profession, he works with tribal and non-tribal members. He said he has noticed a trend of non-tribal individuals and businesses benefiting from tribal land leases who are openly funding and supporting efforts to oppose the tribes’ Water Rights Compact. “I know of three very large leases that are going on that are very against the tribe in water rights. In my mind, the tribe is funding them to fight us,” he said.
Tribal council vice-chairwoman Carol Lankford (Ronan) asked Burland to name the individuals he was discussing for further investigation. “We’re very careful about our land leases so that we don’t lease to people on the (Western Water Users Association) list. We cross reference to make sure that doesn’t happen,” she said.
WELCOME TO THE UMO. And by the way, if you don’t like it, you are welcome to leave the reservation as we were told yet again this past week. Better yet, go back to your home country.
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