©2021 Montana Land and Water Alliance
In the course of human events there have always been those who deny or reject human freedom, but Americans will never falter in defending the fundamental truths of human liberty proclaimed on July 4, 1776. We will—we must—always hold these truths.~ The 1776 Report, January 18, 2021
The pathetic finish to the unconstitutional, unlawful Daines/Tester-CSKT-Montana Compact ended as it began: in the dark of night, “negotiated” behind closed doors, and based on nothing more than glossy platitudes and known documented untruths. With malice aforethought, this multi-year assault on Montana’s people was enabled only by money, media control, corruption at the state and federal level, and raw political power.
But how perfect that President Trump exposed the congressional scam regarding the purported “COVID-relief” bill on national TV when he read off the billions of dollars of U.S. taxpayer money sent as “foreign aid” off-shore while short-changing Americans in need. By now most know that “foreign aid” is in part money-laundering, with kickbacks paid to politicians and/or their ‘favorite charities’ or causes. The Daines/Tester-CSKT-Montana Compact was a part of that “foreign funding” package, based on the wholly false notion that the CSKT is akin to a “foreign sovereign nation”.
Now you may understand why the Tribes across the United States have become vehicles for funding that is unaccountable, never audited, and that somehow never makes it to the Tribal members or advances the life of the tribal community. But this “game” is hidden behind so-called “culture” or ‘solving historic disputes between Indians and non-Indians’, or names like “Montana Water Rights Protection Act”. Montanans and Congress were sold a bill of goods through the inept and corrupt “representation” of Senators Daines, Tester, and then-congressman Greg Gianforte. Sadly, the ‘game’ they are playing is to forever perpetuate the funding cycle under the guise of “solving” a problem.
The legacy they leave Montana can now be summed up perfectly in the graphic below. The washing machine is the Daines/Tester-CSKT-Montana Compact, and the money is ours. What more can be said?
The status of S. 3019 and the CSKT Compact (85.20.1901 MCA) is as follows:
- S. 3019 was added to the COVID relief package as an authorization with the $1.9 billion dollars that will still have to go through the House. Thus to date, no funding is available for S.3019 or the CSKT Compact as state law (MCA 85.20.1901) at the state or federal level.
- President Trump signed the COVID relief bill, sending it back to Congress for changes, but put a 45-hold on or impounded all funding except relief to Americans. This hold expires about mid-February.
- S. 3019 cannot be implemented at the state or local level until it has been through the Montana Water Court. Because of the thousands of other water claims filed with the Water Court in both western and eastern Montana are involved, and significant legal challenges are likely, the validity and implementation of S. 3019 is years away. Importantly, any local, tribal, federal, or state government agency that participates in any implementation is unlawful. Citizens, please keep your eyes and ears open, and be sure to document any implementation, including “planning” activities.
- The State law equivalent, MCA 85.20.1901 (SB 262) also cannot be implemented inasmuch as the purported “tribal water rights, co-management, and ownership of water” has not been finally ratified by the Water Court.
- The CSKT Tribal Council has already ratified S.3019/CSKT Compact without their citizens’ input, pursuant to a resolution passed years ago that they didn’t need to consult tribal members. Note: this is NOT a ‘green light’ for the CSKT or any government to start implementing S. 3019.
- Montana is fully within its legal right to withdraw from the CSKT Compact and void SB 262 all together pursuant to the language of the Compact itself and the passage of all timelines.
Having dispensed of the broad overview and status of the debacle known as the Daines/Tester-CSKT-Montana Compact, we turn now to finishing it off permanently.
Doing justice for Indians does not require doing injustice to non-Indians.
Nullification
To ‘nullify’ anything, including a law, is to void, annul, rescind, repeal, or abolish it. Starting with a few known defects in the S.3019/CSKT compact, consider the strategic political, legal, and personal action implications of the following well-known statement:
“A law repugnant to the Constitution is void”, Marbury v. Madison (1803)
The citizens of Montana have known since the beginning that all aspects of the CSKT Compact, and S. 3019, are repugnant to both the federal and state constitutions . Under the color of law, the state, federal government and CSKT perpetuate injustices to the life, liberty, and pursuit of happiness of all Montanans through
- the taking of water rights, including individual Tribal member water rights
- imposition of federal/tribal draconian measures foreign to the Constitutionally-guaranteed, Article IV right to a republican form of government to control the use of water across the state of Montana (the UMO/Law of Administration, tribal water quality standards), and
- the undermining of land patents through an expanded definition of the reservation and imposition of tribal/federal jurisdiction
These injustices can only be removed by nullifying this very bad law, by refusing to enforce it, legislatively, and by other means. Nullification in terms of state actions include:
The action by a state not to enforce a federal law as improperly encroaching on the scope of state power. Also, any federal law which that state has deemed unconstitutional with respect to the United States Constitution (as opposed to the state’s own constitution).
Emphasis added to identify important actions that can be taken by citizens right now, including through legal means.
An additional framework for exercising these options includes the Tenth Amendment to the Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Given the failure of our federal government to follow the Constitution, and when our state government failed, the power reverts to the people. The Tenth and First Amendment right to petition our government for redress was used to develop the People’s Compact. That the state, tribal and federal governments excluded the people of Montana, rejected consideration of lawful alternatives, and failed to follow existing law in their deliberation are a few of the many reasons why the CSKT Compact and S. 3019 will ultimately fail.
FRAUD
The fraudulent manner in which the CSKT Compact and S. 3019 were presented to the public, legislature, and Congress presents further support for their nullification. The problem for all the federal, tribal, and state compact proponents is that the elements of fraud are documented in word, deed, legal analysis, and on video. Indeed, by their own words and actions.
“Fraud vitiates everything”, U.S. v. Throckmorton (1878)
“Vitiates” in a legal context means negates, quashes, annuls, invalidates, revokes and abrogates the action, law, or determination knowingly made under false premises. Ever taken a good look at the first two paragraphs or “Recitals” in the CSKT Compact? Those are the very definition of “false premises”. Few were able to read and comprehend the 1,500-document, but how did the first two paragraphs slip by all these “legal beagles”?
Going Forward
Never, ever, ever give up. ~Ronald Reagan
The assumption here has always been that Montana, her water resources, and her people are important and worth the fight. That we are here still is testament to that principle enabled by the Grace of God. Actions and faith are relevant to this task:
Now faith is the substance of things hoped for, the evidence of things not seen. Hebrews 11:1 KJV
The issues of the Constitution, governance, and our unalienable rights run throughout the travesty of the Daines-Tester-CSKT-Montana Compact disaster. The first step in solving this is to stop denying there is a problem–because you can’t anymore— and get to work.
But this next round is war. Our opponents will not be given the roadmap to their own demise. The Art of War instructs:
Let your plans be dark and impenetrable as night, and when you move, fall like a thunderbolt.