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©2015 Montana Land and Water Alliance

Continuing the review of the Constitutional consequences of the CSKT Compact, we bring to the forefront yet another assault on a critical right of every citizen: due process:

Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

The CSKT Compact, unlike all the other compacts in Montana, actually takes and harms property rights. The creation of the Unitary Management Ordinance (UMO) and Board (UMB), the rejection of all things “state” including Title 85, create a regulatory nightmare where no person is able to find a suitable judicial venue to resolve a water rights dispute or to get relief from the actions of the tribal water engineer and the UMB.

The customary avenues available to all Montanans to resolve disputes are the state district and supreme courts. But the Compact replaces this with a “court of competent jurisdiction”, where the parties have to agree as to whether the case is in state or tribal court, and if they can’t agree, the dispute goes to a federal court.

This is a violation of due process, but also, equal treatment under the law.  How in the world the state thought it could get away with this is unknown, but, they haven’t.

Once again, from the memorandum of Mr. Simms:

Ratification of the Compact Would Violate Article VII (The Judiciary), § 4(1) & (2) of the Montana Constitution.

Article VII (The Judiciary), § 4(1) & (2) state:

(1) The district court has original jurisdiction in all criminal cases amounting to felony and all civil matters and cases at law and in equity. It may issue writs appropriate to its jurisdiction. It shall have the power of naturalization and such additional jurisdiction as may be delegated by the laws of the United States or the state of Montana. Its process shall extend to all parts of the state. (2) The district shall hear appeals from inferior courts as trials anew unless otherwise provided by law. The legislature may provide for direct review by the district court decisions of administrative agencies.

(Emphasis added).   To date, the legislature has complied with the mandate that district court “process shall extend to all parts of the state.” Ratification of the Compact would enact the Unitary Administration and Management Ordinance as a law of the State of Montana which removes the process of the district court from the Flathead Indian Reservation. The Compact defines “a court of competent jurisdiction” as “a State or Tribal court that otherwise has jurisdiction over the matter so long as the parties to the dispute to be submitted to that court consent to its exercise of jurisdiction, but if no such court exists, a Federal court.” (Emphasis added). In other words, upon Montana’s ratification of the Compact, the state district court would be a court of competent jurisdiction on the Flathead Reservation only if the adverse parties in a given proceeding “consent to the exercise of jurisdiction.”[1]

[1]   The Montana constitution is the organic and fundamental law of the state that describes the extent and manner of the exercise of sovereign power. The Compact’s definition of the jurisdiction of “a court of competent jurisdiction” is literally unconstitutional, leaving the source of judicial power up to the consent of adverse parties.

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Count 2 of a recall petition?  Eliminating the right of due process for Montana citizens as specified in the Compact.

Remember also that most of the legislature did not read the Compact before voting on it…whether that “rises to the level of recall’ in Montana is doubtful!

 

 

 

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