from the Western Ag Reporter

By Catherine Vandemoer, Ph.D.

“…the response is to remind the tribes about the Grand Bargain and the fact that we agreed to do this extraordinary thing, frankly, with respect to agreeing to subject or to remove non-Indian rights on the reservation from the jurisdiction and control of the state, and place that somewhere else at the tribe’s request.” ~Chris Tweeten, Chairman, Montana Reserved Water Rights Compact Commission, August 2012

As part of negotiating the proposed Salish-Kootenai water compact, the Montana Reserved Water Rights Compact Commission agreed to remove a whole class of citizens — hard working, tax-paying, non-Indians — out from underneath the protection of the laws and Constitution of the State of Montana and place them under the jurisdiction of the Confederated Salish and Kootenai Tribes (CSKT).   This is the Compact’s planned “Unitary Management Ordinance,” complete with a politically-appointed unitary management board composed of “officials” appointed by the Governor and the Tribes.

A “grand bargain,” indeed, but for whom?

You don’t need to be a lawyer to understand something is terribly wrong with an unelected commission giving away the state’s legal and constitutional protections for Montana citizens and recommending to the state legislature that it do the same. The Constitutions of the United States and the State of Montana were written in plain language, for use by the citizens; a lawyer is not needed to “interpret” its provisions. Normal, everyday citizens are completely capable of observing and describing how or if actions of their own state government fall within or outside of the constitution and even that complicated thing known as “common sense.”

The purpose of this article is to describe how a specific part of the proposed CSKT Compact — the Unitary Management Ordinance — is so far outside of the Constitution of Montana and the United States that it absolutely violates even common sense.

Article IX of the Montana Constitution explicitly states that Montana owns all the water in the state and, further, that the Montana legislature shall provide for the administration of all water resources in the state. Not “maybe,” “at their discretion,” or “can”… the operative word is SHALL. The proposed CSKT Compact’s Unitary Management Ordinance rejects this Constitutional provision and the state laws that implement water administration in Montana. From the Compact itself: “This Ordinance shall govern all water rights — whether derived from tribal, state, or federal law — and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA [State water law] that is inconsistent with this Law of Administration is not applicable within the Reservation.”

Unconstitutional?

It would appear that the Unitary Management Ordinance is unconstitutional on its face because of its rejection and replacement of state law. And a question: does the Governor, Attorney General, or Montana legislature have the authority to remove state citizens out from underneath the umbrella of protection of the laws of the state?

There may be other constitutional problems with the Unitary Management Ordinance. The Fourteenth Amendment to the U.S. Constitution guarantees every citizen equal protection under the laws of the United States and each state.  Article I of the Fourteenth Amendment states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Unitary Management Ordinance will deny persons within the boundaries of the state of Montana the equal protection of the laws. It is a new law that treats Montana citizens who live on the reservation differently than all other citizens of the state. Under this new law, a different set of rules will apply to Montana citizens just because of their geographic location. Yet, for taxation purposes, the laws of the state of Montana still apply to non-Indians living on private lands within the reservation boundaries. In plain view, the Unitary Management Ordinance violates the equal protection guarantees of the U.S. and Montana constitutions.

While Article IV of the U.S. Constitution guarantees to every state the right to a “republican form of government,” the Unitary Management Ordinance puts a class of Montana citizens underneath the government of the CSKT, which for all intents and purposes is anything but a “republican form of government.” Non-Indians have no representation within the CSKT Tribal government; yet their property rights in water will be regulated by it under the proposed CSKT Compact. Placing a class of citizens underneath a new form of government just because of where they live violates both Article IV of the U.S. Constitution and Article IX of the Montana constitution.

Article V of the U.S. Constitution prohibits the taking of property without compensation. “Takings” of property can also mean “regulatory takings,” meaning the taking of property through regulations promulgated by governments and agencies. Under the Unitary Management Ordinance, the right to the use and enjoyment of property — water rights — is subject to the Tribal government’s control through the Unitary Management Ordinance and its unitary management board. Since non-Indians have no representation in Tribal government, a regulatory taking of property rights is in the works because the Tribes’ control over those rights will limit, diminish, or otherwise direct the use of water by non-Indians. And because the unitary management board is a politically-appointed board, there is great danger of arbitrary, capricious, and discriminatory behavior against non-Indians that will limit the use of property, especially if that non-Indian has opposed or even questioned the Compact.

Another key factor in the debate over whether to approve the Compact’s Unitary Management Ordinance is whether Indian tribes have any jurisdiction over non-Indians or private property. Simply stated, Indian tribes do NOT have jurisdiction over non-Indians, even within the boundaries of an Indian reservation; nor may they regulate in any way private property that is not theirs. That is settled law, and in fact, Montana case law is quite firm on this issue. Why would the state of Montana violate these nation-wide, state-determined, judicially-verified, and constitutionally-prescribed facts which prohibit Tribal jurisdiction over non-Indians?

The proposed Compact’s Unitary Management Ordinance should be unacceptable to state officials who have sworn an oath to protect the constitution and laws of Montana. But compact proponents, including some legislators, like to diminish the importance of this issue by likening the unitary management board to a “local” board, like a political redistricting commission, or like the existing CSKT-Fish, Wildlife & Parks (FWP) joint management board. Just for fun, ask any FWP employee what he or she knows about the status of wildlife or fisheries on the Flathead Indian Reservation. They will tell you that they “don’t know, because they don’t have jurisdiction.” Then ask them how they feel about the Tribes’ gillnetting in Flathead Lake and how that “joint board” is working out for them.

It should be plainly obvious that the Unitary Management Ordinance intends to reject state law and will not be a “cooperative” venture with the state of Montana.

Compact proponents think cosmetic changes will somehow resolve these underlying unconstitutional problems with the Unitary Management Ordinance and its politically-appointed unitary management board. Some legislators are intent upon “tweaking” the proposed CSKT Compact and unitary management ordinance by, for example, having county commissioners appoint the board members or by somehow trying to make the unitary management board ‘gutless’ … existing on paper but with no power. These cosmetic changes will not resolve the plain issue that the proposed Compact removes Montana citizens out from under the protection of the Constitution and laws of the state.

On the eve of the opening of “public negotiations” on the compact, note what is not on the table for negotiation or even discussion: the Unitary Management Ordinance. The Tribes have clearly stated that the Unitary Management Ordinance is “non-negotiable.” The Tribes’ own attorney stated, in response to a question about passing a compact without the Unitary Management Ordinance, that, “if the unitary management board goes away, the mechanism for the Compact goes away”… a stunning line in the sand for a supposed “negotiation”! But the Governor and the Compact Commission have stated the same thing: the Unitary Management Ordinance is not up for discussion.

But is the Unitary Management Ordinance legally or administratively required in order to settle the federal reserved water rights of the CSKT or any tribe for that matter? Once again, the answer is NO. None of the other Tribal compacts in Montana have gone this far. A dual system of water management has always applied, where the Tribes manage their own resources and the State manages state-based resources. There is no reason why the same dual system could not apply to the Flathead Indian Reservation.

Crossroads …

Montana is at a crossroads with the proposed CSKT compact and the onerous Unitary Management Ordinance. Will your legislator vote to gut Article IX of the Montana Constitution and delegate its constitutional duty and authority for water to the CSKT? And if it does delegate its constitutional authority for water to the Tribe, what is the next constitutional authority it will delegate?

This is NOT just a reservation or western Montana issue. If the Unitary Management Ordinance is approved, it will be written into state code. Under the doctrine of equal protection, will this Unitary Management Ordinance have to be applied statewide?

We ask that readers seriously consider the implications of the proposed CSKT Compact and find out what your legislator plans to do and how the candidates think. Let them know how you want them to vote in the 2015 legislative session. The upcoming election could make a huge difference in whether Montana throws its own citizens under the bus or stands for the rule of law.

Note: Catherine Vandemoer, Ph.D., is a hydrologist and consultant for Concerned Citizens of Western Montana, an organization dedicated to informing Montanans about the CSKT Compact. She can be reached through the blog site, www.westernmtwaterrights.wordpress.com

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