© 2013 Concerned Citizens of Western Montana
Missoula has an intersection so poorly designed, it is known as “malfunction junction”. At the intersection of Brooks, Russell Street and South Avenue, it is the busiest intersection in Missoula, and has the distinction of being one of the most dangerous intersections in the country.
This article is about our very own Malfunction Junction, at the intersection of “tribal sovereignty” and the management of the Flathead Irrigation Project. This intersection is known as the Cooperative Management Entity.
In our blog post titled: WHO CONTROLS THE FLATHEAD IRRIGATION PROJECT?, Dr. Kate discussed the creation of the Cooperative Management Entity (CME) for the management of the Flathead Irrigation Project, and the 4-4 make up of the board, four tribal members and four appointments by the Flathead Joint Board of Control. Considering the fact that the CSKT own about 10% of project lands, their 50% control of project management flies in the face of the original intent of the federal government that the project’s operations be turned over to the landowners served by the project after its construction costs were paid.
So what happens when 50% of the board does not have to play by the same rules as the other 50%? You need only to attend a CME meeting to find out.
AN ELITE CLASS OF CITIZEN
Unfortunately the Montana legislation that paved the way for the CME assumes everyone plays by the same set of rules, and that any “cooperating entity” created would serve to protect citizens by following Montana law.
It failed to contemplate the fact that the entity created would consist of people who consider themselves a “sovereign government”, exempt from the laws of the state of Montana.
Note: we would like to qualify these comments by saying that we are not talking about the majority of tribal members, but rather the elite CSKT leadership whose actions serve to advance agendas that diminish the rights of their own membership as well as non-Indians living within reservation boundaries.
A book from March of 1995 entitled THE TRIBAL NATIONS OF MONTANA, A Handbook for Legislators, Prepared by the Committee on Indian Affairs, states the following concerning tribal sovereignty:
Tribal governments are not subordinate to state governments and are not bound by state laws
“With rare exceptions, a state has jurisdiction within a reservation only to the extent that Congress has delegated specific authority to it or in situations in which neither federal nor tribal law preempt state law.”
Within the last 12 months, we’ve experienced two real life examples of how this elite class of citizenry works. Last year, now Lake County Justice of the Peace, Joey Jayne had campaign violation charges filed against her for campaigning at the voting polls, and state Senator Shannon Augare is currently up to his ears with drunk driving charges.
Both are allowed to participate in Montana State Government and hold elected offices, yet as members of federally recognized tribes, are “exempt” from misdemeanor laws of the state of Montana when such crimes are committed within reservation boundaries. Therefore, they basically are given a “get out of jail free card” when it comes to obeying the same laws they administer or create through their elected positions.
When state and federal governments create or allow the existence of a class of “super citizen” that can willfully play by some rules, and not others, by default, they have advantages and privileges not afforded to other citizens. This not only violates the equal protection guarantees in the Montana and United States Constitutions, it violates the “rule of law”. It also paves the way for discrimination against those who are not part of the elite “super citizen” membership. Examples of such discrimination are on display at each and every CME board meeting.
Why is this important information to know? Because it appears that the CSKT appointments on the CME board, with the assistance of an attorney paid for by irrigators, are acting as though it is unnecessary to follow some of Montana’s laws, and have empowered themselves to selectively ignore the terms of the CME Transfer Agreement when it suits their agenda. It’s also important because the CME is the model for the Unitary Management Board. It affords a rare opportunity to glimpse into the future.
CME TRANSFER AGREEMENT
Montana Code Annotated Title 18 Chapter 11 STATE TRIBAL COOPERATIVE AGREEMENTS, states:
“It is the intent of the legislature that this part be used to promote cooperation between the state or a public agency and a sovereign tribal government in mutually beneficial activities and services.”
The law requires that any such relationship have a written agreement intended to set the ground rules for the relationship between the state government entity and the tribe. It also requires the approval of the state Attorney General. The agreement for the management of the irrigation project is called the CME Transfer Agreement.
The CME Transfer Agreement attempts to give lip service to Montana Laws, but that lip service stops with the agreement document and does not translate well into the reality of project operations, it’s management board, or their so-called “public meetings”.
ACTIONS SPEAK LOUDER THAN AGREEMENTS
Recent activities of the CME board indicate that this legislation served to create a monster: an “ENTITY” that appears to be unaccountable to anyone or anything except possibly the CSKT (or perhaps the federal government?).
The 4-4 make up of the board virtually guarantees that unless one or more of the Joint Board appointments fall in lock step with the tribe, it is little more than a recipe for stalemate or an intentional override of the CME transfer agreement ground rules.
Prior to the May of 2013 irrigation project elections, the Flathead Joint Board appointments to the CME consisted of one tribal member, one former compact commission member with a significant number of tribal leases, and two other joint board commissioners, all of whom are proponents of the Irrigator Water Use Agreement and water compact. By adding four tribal appointments to the mix, the result was a tribally-controlled board.
Until May, the CSKT controlled board gave the appearance that operations were going smoothly and the parties were cooperating. That façade was shattered when the four joint board appointments to the CME were replaced in June 2013 with people who were skeptical about the water use agreement and the compact. In other words, they did not agree with the CSKT’s political agenda for owning and controlling all the water in the Flathead Irrigation Project.
Since the newly comprised board has been in place, it is no understatement to say the meetings have been contentious and adversarial. The four joint board appointees have been marginalized, disrespected, and are often ignored by their tribal counterparts. We would like to give just a couple of examples:
Violations of Montana Open Meeting Laws
The transfer agreement says Montana open meeting laws are to be followed. In April, the CSKT controlled board instituted the following meeting policy:
Meetings shall be open to the public except for executive sessions to discuss personnel or litigation issues. Any person wishing to present a complaint, comment, or any other matter to the Board must request to do so to any Board member or the Chairman at least seven days prior to the meeting. The request must include a written description of the matter to be brought forth. Requests for placement on the meeting agenda are subject to board approval at each meeting. Complaints involving the FIIP manager or comments delivered to board members will be given to the FIIP Manager by the board member at least seven days prior to the meeting. Public comment may be restricted to written comment delivered within seven calendar days following the meeting the comments are directed to. No cameras or recording devices shall be allowed in meetings without approval of the Board.
The CME attorney has publicly stated that this policy complies with Montana open meeting law. To that we respectfully ask about this part of statute:
The agenda for a meeting, as defined in 2-3-202, must include an item allowing public comment on any public matter that is not on the agenda of the meeting and that is within the jurisdiction of the agency conducting the meeting.
Since the new policy was implemented, there has been no opportunity for public comment placed on the agenda for these meetings. In what universe does the CME meeting policy comply with this very clear requirement in the law?
Violations of the CME Transfer Agreement
The CME Transfer Agreement includes a section called Decision Making. It says:
Each member shall possess one vote when present and voting at scheduled and emergency noticed meetings. The CME shall operate by simple majority. In the event a tie vote occurs, the CME shall follow the tie-breaking process outlined below in paragraph (i).
(i) Tie Votes by Management Board – In the event of a tie vote by the Management Board when less than eight members of the Management Board are present; the action item can be tabled until a later meeting. In the event of a tie vote by the Management Board when all eight members are present and voting, the Management Board shall deem the item a failed vote.
Would you be surprised to find out that since the new board has been in effect, most votes are 4-4? A tie vote is sometimes deemed a failed vote, and other times it is considered a successful vote. We will leave it up to the reader to figure out which circumstances dictate how the vote is treated.
How is it possible to manage an operation if there is such inconsistency? Which rules are supposed to be followed, and when?
WELCOME TO THE UMO
So now let us consider the Unitary Management Ordinance or the UMO. Modeled after the idea of the CME board, the UMO is part of the compact that will remove 23,000 non-Indians from the protection of the state of Montana and place them under a politically appointed board with respect to their water rights.
Right off the bat, approximately 20% of the reservation population will be given 40% control of the board that will determine future water rights for everyone residing within the exterior boundaries of the reservation. If this agreement is passed, the state of Montana will be forever banned from administering water for its citizens with state based water rights on private fee land within reservation boundaries.
Rest assured that this board will be CSKT controlled. How do we know this? Because the CME is our real life example of how the game is played. Two governor appointments and two tribal appointments will select a fifth member. We predict the fifth person will serve to advance the CSKT agenda because the political winds will ensure that deference is given to tribal or tribally biased appointments will be made for the remaining positions.
If it is passed, the wheels will be set in motion for a disaster of much greater proportion than just the management of the Flathead Irrigation Project. Make no mistake, the UMO will negatively impact all of western Montana.
The UMO will FOREVER limit future generations of Montanans from developing their property rights unless it is favorable to the agenda of the CSKT elite and possibly the federal government. It will necessarily destroy property values and agriculture, the economic engine of the state of Montana.
Let’s work together to prevent yet another MALFUNCTION JUNCTION with the Unitary Management Ordinance.
Let’s kill the UMO before it has the chance to suck the life out of western Montana.