© 2016 Concerned Citizens of Western Montana
In light of the recent court hearing in the FJBC v Montana suit concerning the constitutional validity of the CSKT water compact vote in the 2015 legislature, it’s a great time to revisit the “Grand Bargain” that was made between the compact commission and the CSKT.
We were first introduced to the GRAND BARGAIN in 2012 at a compact commission meeting, when Chris Tweeten offhandedly said:
“…. Jay (Weiner) talked about pushback from the tribe at some point about what they’re being asked to give, and I think, that in addition to the point that Jay made, 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….”
This “Grand Bargain” referenced by Tweeten became what is now known as the Compact’s Unitary Management Ordinance (UMO).
What a difference four years has made.
While we’ve always known that this “ordinance” was a stunning concession by the state, a compromise that for decades the state claimed would never happen, we did not realize at the time that the state was also working on a plan to release itself from any responsibility for the monster they agreed to create in the form of the UMB (Unitary Management Board).
Once the Compact Commission ceded the state’s jurisdiction and administration over “reservation” water for its citizens to the tribe through this board, it became a simple matter of working around its many violations of due process, equal protection, and takings provisions of the Constitution. This was accomplished quite simply, by conferring immunity on the state for all financial responsibility for the actions of this board, “a creature which possesses plenary quasi-governmental powers (judicial, executive, legislative and enforcement etc.), operates under a new Law of Administration, answers to no one and is afforded absolute immunity for any action for money damages.” See Plaintiff’s Brief 03/02/16
Although the immunity language in the compact documents is straightforward, and appears on its face to confer immunity, the compact commission was able to enlist an uninformed Attorney General to declare that the compact did not confer immunity, but if it had, that Article II Section 18 of the Montana Constitution was “drained of all significant meaning,” and a 2/3 vote was not required to pass the compact.
To add insult to injury, the AG also declared through his solicitor general that there are no “due process” or “equal protection” violations in the compact because:
“non-Tribal water users on the reservation are subject to different rules than non-tribal water users off the reservation, because they are not, as a matter of law, similarly situated.”
“…..someone living on the reservation should not be surprised that they may be subject to different rules than non-Indian water users off the reservation.”
In other words the state took a page right out of the Joseph Goebbels play book:
if you tell a lie that is big enough, often enough, people will eventually come to believe it. In an odd twist however, the state went one step further, by trying to make its citizens believe the tyranny they were being placed under was their own fault, and not the states’.
Shame on all of us for living in western Montana. We should have known that the state and the courts see us as “lesser citizens.”
With the endorsement of Fox and Bullock, our current and former Attorneys General, how could any legislator resist voting for the compact, and how could any citizen challenge the illegality of what the state was poised to foist upon the citizens of western Montana?
Thanks to the work of the attorneys for Flathead Joint Board of Control (FJBC) in the legal case (see FJBC v Montana) on the Compact vote, we may be one step closer to defeating the CSKT Compact. While the case is not about the compact, per se, it completely unmasks the intent of the Compact, and thus the intent of compact-proponent legislators in forcing this compact down Montana’s throat.
From what we can discern from this legal case, the following has now been legally put on the record:
- The Compact proposes to create a separate immunity for the State of Montana that is specific to the Compact itself. As a rule, Montana has no immunity from suit.
- In this compact-specific immunity clause, the state grants itself an exception to that general immunity by not being liable for fees, costs, or attorneys fees.
- The UMB was very likely intended to be an entity created to exist outside of state water laws and the constitution, a true legal monstrosity accountable to no one except perhaps the new owner of most if not all of the water in western Montana: the United States / CSKT.
From Page 15 of the plaintiff’s brief dated 03/02/16:
“Next, and even more concerning, is the creation of the new monstrosity called the WMB which is a political board comprised of State, Tribal and federal appointees. This new board governs, controls and possesses exclusive jurisdiction over “all water rights whether derived from tribal, state or federal law” within the exterior boundaries of the FIR (Flathead Indian Reservation) under a new Law of Administration. It possesses judicial powers, executive powers, administrative powers, enforcement powers and it answers to no one.”
To this last point we ask a few questions:
Does the state have the authority to create an entity outside of any state law or constitution of the state of Montana?
If the state is able to create such a legal monstrosity, have they not essentially gutted the constitution and the rule of law in the state of Montana?
Whose rights will be trampled on next? Will their next “creation” have anything to do with the 10,000 claims filed by the U.S. / CSKT that cover 2/3 of the state of Montana? After all, why shouldn’t a new entity be created to manage those “water rights” too?
Let us never forget that through its wholehearted support of the CSKT compact, the state of Montana threw its citizens under the bus and ceded its sovereignty over water.
Legislators who voted for it, voted to remove a large number of citizens from the legal and constitutional protections of the state by placing them under the thumb of a political board (UMB) that may be argued is not subject to Montana water law or provisions of the constitution.
If there is any doubt in your mind as to what the state created, please watch John Carter’s response to Judge Manley about whether the UMB can be sued:
The state says the UMB CAN BE SUED, but John Carter, attorney for the Confederated Salish and Kootenai Tribes contradicts the state’s position. Our bets are on John Carter’s more honest answer to the judge’s question.
If this monstrosity is allowed to stand, there will literally be no end to what the state will be able to create “at the request of any tribe” or the United States.
Perhaps the time has come for citizens to file suit against the state of Montana for taxing our private lands using the “same taxation rules” as applied to citizens living “off the reservation,” but allowing for the application of “different rules” when it comes to the laws and constitution of the state of Montana.
Four years later, the “Grand Bargain” has a more crude meaning: the state threw its citizens’ and their property rights under the bus, continues to tax citizens, and doesn’t have to pay a dime for it.