©2014 Concerned Citizens of Western Montana
Building from our last article, “All You Need to Know About the CSKT Compact in 3 Easy Steps”, this article describes why the CSKT Compact is unconstitutional.
The issue of unconstitutionality of the Compact was raised more than one year ago in the numerous papers, public presentations, newspaper articles, and testimony given by Concerned Citizens before legislative Committees. It also has been raised and written about by legislators and the general public.
The response of the Compact Commission, Governor, and Attorney General? crickets.
The Grand Bargain
Of the many unconstitutional components of the Compact, perhaps the worst is the Unitary Management Ordinance, which is a Tribally-written ordinance that assumes jurisdiction over all water users living within the external boundaries of the Flathead Reservation. It was known to the Compact Commission as “The Grand Bargain”:
“…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
At the Tribes’ request, the Compact Commission agreed to throw Montana citizens under the bus and subject them to jurisdiction of the Tribes. Read this again, because it is the absolute truth. When your ancestors were invited to this land by the United States, they were never told that the U.S. and their own state would place them or their children under the jurisdiction of an Indian Tribe, were they?
Now here is what the purpose of the Unitary Management Ordinance is, straight from the Compact:
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
Let’s point out one of the differences that is involved with the UMO and State water law: exempt wells. The state law allows 10 acre feet of water to be drawn from each exempt well. The UMO will reduce that amount to 2.5 acre feet.
So right away you will find that people who live on the reservation will be subject to a different law than people off the reservation–and that is a violation of the Equal Protection Clause of the United States Constitution. 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.
Prominent members of the Compact Commission continue to say that “the unitary management ordinance treats everyone equally on the reservation”–ignoring the real meaning of “equal protection of the laws” of the state. But even the legislative services division staff, in their “legal-constitutional” study of the Compact had to admit, upon questioning, that the UMO would apply only to residents on the reservation, and the Montana Water Use Act (state law) would apply everywhere else.
This is the fundamental unconstitutionality of the Compact scheme—the unitary management ordinance removes state citizens out from underneath the laws of the state. Chris Tweeten admitted this in his “Grand Bargain” statement.
Oh the Compact Commission equates the Unitary Management Board (UMB) with the CSKT/FWP wildlife board–which may unconstitutionally deprive citizens of their right to hunt on their own property–or some political redistricting commission that well, is political. It is surreal in many ways that such a fundamental aspect of the State Constitution—the protection of its citizens, could be so cavalierly applied by public servants to the public they are supposed to serve.
Does the Compact Commission, Governor, Montana Attorney General, or the state legislature have this authority? We think the answer is obvious, and it doesn’t take a lawyer to figure this out.
In spite of the recent attempt by legislative services to paint the compact as being completely legal and constitutional, it does not take a legal scholar to understand that significant problems exist, and have not been addressed by the Compact Commission. Read this article to find out more about the other unconstitutional aspects of the UMO, including the property rights takings confirmed by Judge C.B. McNeil in February 2013!
Please support our efforts to defeat this Compact! Support the Montana Land and Water Alliance: