What Tribal Sovereignty? Lloyd Meeds’ Dissent

© 2020 Concerned Citizens of Western Montana

Edward Hicks: Penn’s Treaty with the Indians

The United States is prepared to accommodate Indian interests, and to provide a substantial degree of self-determination. But there is a point beyond which it cannot go—our federal framework will not be compromised, nor will the rights of non-Indians be ignored. Where tribal aspirations collide with constitutional values, the tribe’s interests must yield. Nor can the rights of the non-Indian majority be compromised to support tribal aspirations. Doing justice by Indians does not require doing injustices to non-Indians.   ~ Lloyd Meeds, 1977

On January 2, 1975, Congress created the American Indian Policy Review Commission, which was mandated to :Conduct a comprehensive review of the historical and legal developments underlying the Indian’s unique relationship with the Federal Government in order to determine the nature and scope of necessary revisions in the formulation of policies and programs for the benefit of Indians.

Lloyd Meeds served as a member of the US House of Representatives from 1965 to 1979. He represented the second district of Washington as a Democrat.  He sponsored the creation of the commission and was its co-chair.

The commission’s final report was issued on May 17, 1977.  Interestingly enough Meeds felt compelled to submit a dissenting opinion report based upon the commission’s inappropriate and political findings.  His dissent also explains that the commission was flawed from its inception largely due to the congrssionally mandated racial makeup of those serving on it.

In light of the tribal sovereignty fraud that our federal and state governments insist are a necessary component to the negotiations of the CSKT Compact, it is all a big fat lie that is perpetuated by, you got it, the deep state officials in the federal government and the corrupt leadership of the state of Montana.

It is important for people to understand the fraudulent notion that tribal sovereignty has the same legitimacy as state and federal sovereign governments.  It does not.

Below is an excerpt from Mr. Meed’s dissent.  A link to the full dissent document, which begins with an opening summary of the report written by the commission, can be found at the bottom of this article

The Introduction to the final report is difficult to get through, but we provided it to give you a glimpse into the content of the report itself, which is not included here.  We also wanted you to see some of what Representative Meeds was dissenting to.

A copy of the complete dissent can be found at the bottom of this post. The Meed’s Dissent itself begins on page 12 of 55 of the document linked below.

We hope this article helps you better understand that tribal government sovereignty does not exist, except to the extent that we are willing to cede it to them.  So why do our local, state and federal governments insist on “government to government” agreements, negotiations and other such nonsense?  That is a good question to ask them.  We should also hold them accountable to an informed and truthful response, rather than their typical political doublespeak response.

We believe that in addition to the Constitution they swear an oath to uphold and protect, the Lloyd Meeds dissent should be mandatory reading material for every elected official who comes in contact with Indian tribes during the course of their duties.

SOVEREIGNTY-TRIBAL SELF-GOVERNMENT OR TERRITORIAL GOVERNMENT’

The fundamental error of this report is that it perceives the American Indian tribe as a body politic in the nature of a sovereign as that word is used to describe the United States and the States, rather than as a body politic which the United States, through its sovereign power, permits to govern itself and order its internal affairs, but not the affairs of others.  The report seeks to convert a political notion into a legal doctrine. In order to demythologize the notion of American Indian tribal sovereignty, it is essential to briefly describe American federalism.

In our Federal system, as ordained and established by the United States Constitution, there are but two sovereign entities: the United States and the States. This is obvious not only from an examination of the Constitution, its structure, and its amendments, but also from the express language of the 10^th amendment which provides:

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.

And, under the 14th amendment, all citizens of the United States who are residents of a particular State are also citizens of that State.

The Commission report (especially chapters 3 and 5), would have us believe that there is a third source of sovereign and governmental power in the United States. It argues that American Indian tribes have the characteristics of sovereignty over the lands they occupy analogous to the kind of sovereignty possessed by the United States and the States. The report describes Indian tribes as governmental units in the territorial sense. This fundamental error infects the balance of the report in a way which is contrary to American federalism and unacceptable to the United States, the States, and non-Indian citizens.

The blunt fact of the matter is that American Indian tribes are not a third set of governments in the American federal system. They are not sovereigns. The Congress of the United States has permitted them to be self-governing entities but not entities which would govern others. American Indian tribal self-government has meant that the Congress permits Indian tribes to make their own laws and be ruled by them. The erroneous view adopted by the Commission’s report is that American Indian tribal self-government is territorial in nature. On the contrary, American Indian tribal self-government is purposive. The Congress has permitted Indian tribes to govern themselves for the purpose of maintaining tribal integrity and identity. But this does not mean that the Congress has permitted them to exercise general governmental powers over the lands they occupy. This is the crucial distinction which the Commission report fails to make. The Commission has failed to deal with the ultimate legal issue, which is the very subject of its charter.

In addition, the Commission has failed to make the distinction between the power of American Indian tribes to govern themselves on the lands they occupy, and their proprietary interest in those lands.  Mere ownership of lands in these United States does not give rise to governmental powers. Governmental powers have as their source the State and Federal constitutions. Hence, as landowners, American Indian tribes have the same power over their lands as do other private landowners. This would include the power to exclude or to sue for trespass damages. But landowners do not have governmental powers over the land they own. Land ownership, alone, is insufficient to give rise to governmental powers. Having failed to make this distinction, the Commission seeks to bootstrap its “tribe as a government” theory by relying on ownership principles.

Indian reservations exist within the boundaries of the States and within the United States. Reservation Indians are citizens of the States in which they live and of the United States. They are subject to the laws of the United States and, but for the exercise of congressional power, reservation Indians are subject to the governmental power of the States in which they live. American Indian tribal self-government comes into play because the Congress, in exercising its powers under article I, § 8(3), of the United States Constitution, has, in general, insulated reservation Indians from State governmental power. In order to promote the preservation of their distinctive cultures and values, the Congress has decided that some American Indians should be allowed to make their own laws and be ruled by them. This does not mean that the Congress allows American Indian tribes to govern their reservations in the same way in which a State governs within its boundaries. A tribe’s power is limited to governing the internal affairs of its members. The United States Supreme Court has over and again upheld the power of the State to impose its law on non-Indians within the reservation. If American Indian tribes had the kind of sovereignty which this Commission urges, and if Indian tribal self-government were territorial rather than purposive, the States could not have jurisdiction over non-Indians within the reservation. These principles are easily demonstrated……..

…..Hence, to the extent American Indian tribes are permitted to exist as political units at all, it is by virtue of the laws of the United States and not any inherent right to government, either of themselves or of others.

Lloyd Meed’s Dissent 1977

A Tale of Two States: Montana and Idaho

©2018 Concerned Citizens of Western Montana

Montana’s Approach to Indian Water “Settlements”

After decades of calling the CSKT demands for 1) all the water flowing on over, and under the reservation 2) off reservation “indian reserved” water rights and 3) unitary administration of that water “non-starters”, the people of Montana were comfortable that their water rights were being protected by the state through the Montana Reserved Water Rights Compact Commission.

Over the years, Montanans began to pay little attention to state water rights “negotiations” with the Confederated Salish and Kootenai Tribes.  They had no idea that In the early to mid-2000’s, the compact commission made the decision to cave in to the CSKT’s decade long unreasonable demands by agreeing to cede:

1. All of the water flowing through, over and under the (diminished) Flathead Indian Reservation,
2. Off Reservation water rights to vast volumes of off reservation water including all of Flathead Lake,
3. Bare legal title to 100% of irrigator’s water in a federal irrigation project and
4. Ceding its constitutionally mandated jurisdiction over all that water

Once they were “in”, the state then hired an attorney to make their capitulation more palatable to the public.  This was accomplished by creating the necessary talking-points, developing a “legal legs” rationalization for what clearly would be an unconstitutional taking and putting lipstick on the tribe’s unreasonable claims by declaring them “colorable” under the law.

At some point in the process they also made a conscious decision to provide no “quantification” of the volume of water to legislators or the public or any studies of its impacts on the economy of western Montana.

As of the writing of this post, the state still has not provided an official volume of water.  To note, at a Clark Fork Basin Management Taskforce meeting in 2011, the following discussion took place:

Comment – I have heard a rumor that the compact will not quantify the CSKT reserved water right. Without quantification, I am unsure how adverse affect will be determined…. Will the compact specify or cap the flow and volume of the CSKT reserved water right?

Answer by Jay Weiner – Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply.

Here is a copy of the state’s non-quantification “quantification” given to Montana legislators ahead of their vote on the compact in 2015:  Chas Vincent Legislator Package: Quantification

Adding insult to injury, state attorneys also worked in concert with the CSKT to develop what they thought to be a bullet proof document, placing negatively impacted property owners in a legal straight jacket while at the same time giving themselves immunity from any damages.

There is little doubt Governor Steve Bullock and Attorney General Tim Fox believed this settlement to be the finest legal document they’ve ever endorsed or been a party to in their “distinguished” legal and political careers.

Despite their best efforts, the CSKT water compact was still too controversial to ratify easily.  However with some arm twisting, CSKT dark money, failure to disclose pertinent information, making a mockery of the People’s government, and widespread threats of decades long litigation, the parties to the compact were able to achieve an unconstitutional simple majority ratification vote in the Montana legislature in 2015.

In June of 2015, after the compact’s questionable ratification in the legislature, the United States and the CSKT filed 10,000 claims covering 2/3 of the state:

These claims remain a dark “threat of litigation” cloud over the state of Montana.  Since filing them, tribal attorneys have successfully used them to thwart the Montana adjudication process and to prevent any examination of the tribe’s illegal and unreasonable claims.  They currently have a stay in the water court until January 2020.

Meanwhile in Idaho……

Notwithstanding the actions of Montana with respect to the Confederated Salish and Kootenai Tribes water compact, the state of Idaho has been working hard to protect its citizens from off reservation claims of the United States and the Coeur D’Alene tribe.

In 2008 the Idaho Court entered an order to commence the  Coeur d’Alene-Spokane River Basin Adjudication.

In March of 2014, the United States filed 353 federal reserved water rights claims with the state of Idaho on behalf of the Coeur d’Alene tribes

Objections and responses to the claims were filed by various parties and were consolidated into one sub case in early 2015.  The goal was to separate the issues of entitlement (legality of the claims) and quantification, addressing the issue of entitlement (compliance with the law) before any quantification would be addressed in the court.

Motions for summary judgment were filed by Idaho, the United States, the Coeur d’Alene Tribe, and others.

In May of 2017, Idaho’s Fifth Judicial District issued an order that included the following crucial legal decisions and ground rules for any claims that were to proceed forward in the adjudication process:

• A determination of the primary and secondary purposes of the reservation
• A declaration that the United States is not entitled to federal reserved water rights outside the boundaries of the reservation
• Setting ground rules for the priority dates of any water rights
• Denying the United States’ claim for lake level maintenance of Lake Coeur d’Alene as a matter of law

A copy of that decision can be found at this link: 05/2017 Idaho Fifty District Court Order Pertaining to Requests for Summary Judgment

We’d like to note that the parties to this decision have appealed it to the Idaho Supreme Court, so this is far from being resolved, but it is a necessary and important step in the process of protecting Idaho citizens from an Indian Water Rights nightmare in their state.  Their success speaks volumes related to what a federal reserved water right is and is not.

NOTE:  The document linked above is IMPORTANT to our situation and we hope you take the time to read it if for no other reason than to understand the path Montana could have and should have taken with respect to the United States and CSKT claims.  It is a stark reminder of Montana’s negligence and its complete failure to step up on behalf of protecting its resources, its constitutionally mandated authority, and the rights of all of its citizens.  Instead of choosing a pathway that would have stopped or diminished any federal overreach, it empowered the United States and CSKT by endorsing the federalization of the clean abundant water in western Montana.

CSRBA Website

Why Did Montana Choose a Path that Ignored its Responsibilities and the Rights of its Citizens?

We will leave that answer up to you, but want to end with this:

In August of 2012 Chris Tweeten explained in a public meeting that he saw the Montana Reserved Water Rights Compact Commission as a trail blazer for future Indian Water Rights Settlements in the country.  He noted that once the CSKT water compact was ratified, he wanted to plan a “national scope” party to celebrate the conclusion of their journey.  He even proposed that Hillary Clinton be invited to the celebration.  At the time we were new to the water rights “negotiations” and had no idea what he meant by the term trail blazer.

However after more than six years and thousands of hours of research later, it is our firm belief that when the history books are written, the MRWRCC will be remembered for its deception, as well as the divisive tactics they used to coerce people into  a reluctant and distasteful acceptance of the CSKT water compact.

Plain and simple, it was an attempted fraud upon the people of Montana.  It could very well turn out to be the biggest scandal in Montana’s history.

Montana or Idaho?  Idaho or Montana?  Which state would you rather have looking out for you?

 

 

 

The CSKT Compact Candidates

©2018 Montana Land and Water Alliance

Our thanks to the Western Ag Reporter for publishing this article!

The 2018 CSKT Compact Candidates

Catherine Vandemoer, Ph.D.

One of the most disappointing elements of this year’s primary election in Montana is the extent to which candidates who claim they support the CSKT Compact know nothing about it.  Recall that in 2015 a question was asked on the House floor whether anyone in that body had read the compact.  Only 3 representatives raised their hands. Thus, the Montana legislature’s vote, in addition to being unconstitutional for lack of a supermajority, was also uninformed.  Recall also that the only way the CSKT Compact passed the legislature was to change the House rules so that a bill that failed in committee could make it to the floor, and then allowing a simple majority to vote against Montanans in favor of the CSKT Compact.

The truth of the CSKT Compact was that it was “negotiated” in private, without public input or revision, between the CSKT, the Bureau of Indian Affairs (BIA), and the Montana Reserved Water Rights Compact Commission (Commission), an unelected, unaccountable board dominated by the Governor’s appointees.  Nothing was “negotiable” in terms of the Tribes’ demands, so the state’s role was basically capitulation. The BIA’s inability to fairly represent irrigators within the federal Flathead Irrigation Project is well known, and the state of Montana refused to represent state citizens in the Compact negotiations.  Instead of representing state citizens, states’ rights, and state sovereignty, the state of Montana put its thumb on the scale of “tribalism”, defined as being organized as an advocate for a Tribe.  This is a crucial point: the state advocated for the Tribes and not its own citizens, and in the process gave half of the state’s water to the federal government, pretending they were giving it to the Tribes. This is one of the worst “deals” negotiated by any state in the country, and contrasts significantly to the way other western states such as Idaho, Washington, Wyoming, New Mexico, and Colorado have handled their settlement negotiations with or litigation regarding the water rights of the Tribes.

The facts of the Compact that lead directly to its unconstitutionality, violation of federal law, and the destruction of states’ rights were never acknowledged by the state, nor did they care to inform their citizens.  Face it, the entire CSKT Compact was a public propaganda campaign, fueled by millions of dollars supplied by the CSKT, and had nothing to do with fairly settling the water rights of the CSKT, protecting culture, or improving lives. In my view every single legislator that voted for the CSKT Compact violated their oath of office to protect the Montana and U.S. Constitutions.

The Pro-Compact Candidates

So, what are our federal and state candidates saying about the CSKT Compact?  The first type of candidate is a state representative who voted for the compact but who now says, “I no longer support the compact as written”.  This is typical of republican representatives like Greg Hertz (R-Polson) who even at this late date does not understand the actual harm this compact will cause his constituents. Saying you no longer support the compact as written is an “easy” way to take the heat off after casting his uninformed vote.  Hertz wants to be Speaker of the House, but as his constituent, I can’t trust that he will make the right decisions that protect Montanans especially on property rights.  What other votes will he make that ruin the lives of Montanans and then later say he doesn’t support the bill as written?

Even though candidates like this “no longer support the compact as written”, they should understand that the compact is being implemented right now by the state inside a federal irrigation project without federal approval of the compact, and that this implementation will deprive irrigators of their historic use of water.  Its sad that the lack of information about the compact’s impacts are still unknown by the legislators who voted for it!

The second type of candidate, at the federal level, is “100% for the compact” and pledges to do everything they can to get it passed in Congress.  This type of candidate is typified by Russ Fagg who claims he knows about the compact by reading the state of Montana’s summary.  In my view, the state’s summary continues to misinform Montanans of the very real constitutional and legal problems with the compact, and of course fails to acknowledge the state’s mistake of giving western Montana’s water away to the federal government.

Based on his early comments on the subject, Mr. Fagg doesn’t realize that the compact is flawed, and must be revised to bring it into compliance with federal and state law, as well as other settlements in Montana and across the west.  By stating that “this compact is the best deal we’re going to get”, Mr. Fagg is advocating only for the CSKT because he believes that all the Tribes’ expansive, nearly state-wide claims would be upheld in a court of law.  But there is serious evidence to the contrary:  the Tribes’ expansive claims cannot be supported by law or the Treaty of Hellgate. This fact would be revealed if the CSKT water claims went through the Montana Water Court as part of the general stream adjudication.

There are other numerous places that give rise to concerns about possible bias in favor of the Tribes over Montanans in Mr. Fagg’s portfolio, including the fact that he has received funding from the same outfit hired by the Tribes to promote the compact —Mercury Consulting.   His wife is a founding member of the engineering group Dowd-HKM, based in Billings, that is the “go to” firm for many Tribes across the United States and for the government on the technical side of litigation or settlement of federal reserved water rights.  In addition, Karen Fagg was on the board of the group “Farmers and Ranchers for Montana”, an organization developed by Mercury Consulting to create, in my view,  the illusion of public support for the Compact.

Candidates like Mr. Fagg also represent the state’s entrenched forces advocating for increased federal control over water above the state prerogatives and authority.  Like others, Mr. Fagg claims that the CSKT Compact represents “conservative” and “republican” values, and that “federalism” requires that Congress just pass the CSKT Compact as is, without review.  But what is conservative about federalizing the water resources in western Montana, or using its citizens water rights as collateral to avoid environmental lawsuits?    The Compact needs a thorough scrub at the federal level.  Could Mr. Fagg deliver?

Neutral?

The third type of candidate—at both state and federal levels—says nothing.  These candidates may either not know about the compact or are remaining “neutral” in order to get elected.  Some may believe that any stance against or for the compact will “trigger Tribal funding” of their opponents.  The reality is that the Tribes already have their money in the senatorial race and are hedging their bets.  Their preferred candidates are Jon Tester or Russ Fagg, as both have promised to quickly introduce the compact to congress and get it passed.  Indeed, Jon Tester already tried in 2016.

Whether it is important or not to remain silent on one of the most critical issues to affect Montana in its history remains a question for these candidates.  In the meantime, the silent candidates may not be able to address the serious concerns of Montanans on the Compact and may be less aware of them at the D.C. level if they get there.

Principle above Politics

Finally, the fourth type of candidate, represented by Dr. Al Olszweski, U.S. Senate candidate,  takes a public stand against the CSKT Compact based on the factual violations of the federal and state constitutions and law in the compact, and the detrimental impact of the Compact to private property rights and property values across western and eastern Montana. These candidates are concerned about the huge outlier the CSKT Compact is in comparison to the other compacts in Montana, the most recent being the Blackfeet compact.  These candidates note factually that in the CSKT Compact, Montana’s water is given to the federal government, and that Tribal members are not well-served. These candidates also realize how Montana’s legislative process and duty to its citizens was compromised by the state’s “tribalism”, and how strict adherence to the Constitutions would have obligated legislators to vote against the compact.

A candidate like Dr. Olszweski is more likely to enter the U.S. Senate with an idea of how this CSKT Compact must be reformed and brought into compliance with federal law and other Indian water settlements, rather than rushing to submit it as a bill right away.  Dr. Olzcweski is not likely to shy away from difficult issues like the Compact and with this knowledge, can serve all of Montana’s citizens including Tribal members disaffected by it.

We reiterate that the CSKT Compact really had nothing to do with the resolution of the federal reserved water rights of the CSKT—it was a document intended to set precedent, not solve problems. In my view, supporting the CSKT Compact now means the following: (1) supporting the legislature skirting the Montana and US Constitutions, thus violating their oath of office; (2) giving western Montana’s water, and authority over it, to the federal government; (3) supporting tribalism over states’ rights and authorities; and (4) supporting the devaluing of Montana’s property rights.  The blind support offered to the compact by so many politicians spells trouble for Montana. By law, the state will not get another chance to review this compact after Congressional review and approval.

We ask Montanan’s to make an informed decision in the primaries and the general election.  Doing your own research will confirm the many issues presented in this letter.  And we ask the politicians to stop thinking about their election and re-election and start working for the people of Montana.

The Creature from the Compact

©2017 Concerned Citizens of Western Montana

A year since the ruling by Judge Manley, the final documents have been submitted to the MT Supreme Court just this month in the FJBC v. Montana case.  All of the documents that were submitted to the MT Supreme Court can be found here for the case FJBC v. State (Supreme Court Docket DA16-0516).  Recall that the simple question presented to the Court–

• whether the legislature’s vote was constitutional—

became

• whether the severability clause in the UMO could be used to remove the section of the Compact which gave the state immunity from monetary damages.

The FJBC final brief used the substantive observations of Judge Manley regarding the UMO to show that the underlying unconstitutionality of the UMO and Water Management Board (WMB) cannot be cured by simply removing the state’s immunity from monetary damages, costs, and attorney’s fees.

This Board is a legal creature never apparently seen before.

The Unitary Management Ordinance and its Board is an entity that was created anew in the CSKT Compact. The creation of a new law was unnecessary according to Article 5 Section 12 of Montana’s Constitution:

Local and special legislation.The legislature shall not pass a special or local act when a general act is, or can be made, applicable.

The Montana Water Use Act is ‘legislatively applicable across the state‘, and perfectly sufficient to manage the existing state law-based water rights within the Flathead Reservation, as it has been on every other reservation and with every other compact within Montana.  The Tribes have always elected to create their own Tribal Water Code to manage their water rights, and the state and Tribes cooperate on permitting processes if they affect the Tribes’ federal reserved water rights or state law-based water rights.

But the CSKT Compact assumes that the Tribes own all the water both on and off reservation, which the state went along with willingly.  As part of that unauthorized cession of Montanan’s property and civil rights, the Compact’s  UMO, or Law of Administration, removes state law from the equation, abandoning local state citizens from the protection of the laws and constitution of the state of Montana.

As a new and untested creature, the UMO is fraught with flaws, uncertainties, unknowns, and does not appear to be well thought-out. The UMO immediately ran afoul of existing law and the MT Constitution because the state granted itself immunity from monetary damages for injury to its citizens’ property rights .  Noted again by Judge Manley:

The Board is comprised of state and tribal appointees, and their appointee. The governments contend both that it is not a subdivision of the sovereign state or tribal government, but is clothed with all or more of the immunity which either entity has. Each government denies responsibility for the Board, while the two governments create and effectively control the Board by holding the power to appoint and remove its members. This Board is a legal creature never apparently seen before…Whereas now a party could bring an action in state court for damages, or Montana Water Court for determination of water rights, the new statute: 1) would eliminate monetary lawsuits against the state, and the Board and its members and staff, for tortious or other unlawful conduct…An obvious problem with that is that federal courts do not appear to even have subject matter jurisdiction to entertain such cases under current law

Remember on the issue that was presented to the Court–the constitutionality of the legislature’s vote–the FJBC won hands down.

The Tribal intervention in the case brought in the UMO and attempted to shift the case to focus on the compact.  The Tribes asserted that the UMO “severability clause”  could be used to jettison the immunity provision in Compact itself, and the rest of the compact could go on.

And that is what is on appeal to the MT Supreme Court, whether the severability clause in the UMO applies (a) to the whole compact, and (b) whether it can be used to change a provision that is integral to the compact as a whole.  The Montana legislature had an opportunity to fix this and it didn’t. Therefore the state really must want immunity from monetary damages, costs, and attorney’s fees.  From the Manley decision:

Interestingly, at oral argument, the Tribes and State had different answers to the question of whether the Board could be sued in state court for damages. The State contended it could; the Tribes contended it could not. This illustrates the amorphous nature of the board. If it is not a subdivision of the Tribes, or a tribal member, it is hard to understand why it could not be sued in state court, like any other non-governmental entity, for tortious conduct of its members, agents and employees. On the other hand, if, as the State contends, state courts have jurisdiction over the Board, it is hard to   understand why this jurisdiction would not extend to monetary lawsuits.

This is a fatal contradiction inside the Compact and UMO.  It cannot be implemented without damage to someone, and the Judge correctly pointed out that neither the tribal nor state governments take responsibility for any damage from the water rights change they are foisting on local citizens with this compact.

If the state wants this immunity to protect itself from lawsuits for monetary damages resulting from the compact implementation it can do so only under Article II, Section 19 of the Montana Constitution–get the two-thirds vote fair and square as legislative rule changes don’t apply to the Constitution. Especially when the citizens know.

And, if the clause granting Montana immunity from monetary damages is removed, then get ready for the multi-million-dollar lawsuits punishing Montana for property damage. But state officials don’t care, right?  They just let the taxpayers pick up the tab for their failure to protect Montana property rights.

To secure ourselves from defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.

—Sun Tzu, The Art of War

 

 

 

 

The Right Recusal

©2017 Concerned Citizens of Western Montana

Recuse: to disqualify (oneself) as judge in a particular case; broadly :  to remove (oneself) from participation to avoid a conflict of interest

There is an old saying that “if you’re ticking off everyone on both sides of the issue, you’re doing the right thing and a good job.”

That is probably true. Does that mean that if you’re only angering one side of the issue, you’re biased and are doing a bad job?

One could say that the proof is in the pudding, or product, but why wait until one side is irreparably damaged?

These questions relate of course to the appointment of one Alan Mikkelson to the position of Deputy Commissioner of the Bureau of Reclamation.  The question for Secretary Zinke is, which Alan Mikkelson did you appoint?

This one: September 30, 1993; same statement in 2003

In all three decisions, involving hunting, fishing, and land and water resources, the court has clearly stated that the affected tribes do not possess such power.   On the Flathead Reservation, however, the Confederated Salish and Kootenai Tribes continue to grasp for power, ignoring such decisions.   This incessant grasping for power by the tribes thus provokes the reservation population (18,000 non-Indians, 3,000 Indians), who simply do not want to be subjected to a government in which they have not right of participation.   (The vast majority of land located on the valley floors of the reservation is privately owned by non-Indians.)   Given the rulings from the Supreme Court, an 85% non-Indian population, a huge amount of privately owned land and an aggressive tribal government, conflict is nearly inevitable.

Or this one? April 24, 2013

There continue to be lies and falsehoods written about the Flathead Reservation Compact and the irrigation project Water Use Agreement. Absolutely nowhere in either document do the Confederated Salish and Kootenai Tribes claim all water on and off the reservation belongs to them. Yet some people persist in the lies, apparently to continue to promote fear and hysteria. Read the compact and Water Use Agreement on the Department of Natural Resources and Conservation, CSKT or Flathead Joint Board of Control websites.

The one thing that all of us remember is Mikkelson’s refusal to acknowledge the harm he was perpetuating on FIP project users’ water rights at the same time he was “representing” the FJBC. Other ethical behavior is troublesome, including his role in the break-up of the FJBC.

In our view, Secretary Zinke has no choice but to require that Alan Mikkelson recuse himself from anything involving the Flathead Irrigation Project, project turnover discussions,  Kerr Dam, or the CSKT Compact.

At the Secretary’s confirmation hearing, he pointed out the the Interior Department has a “huge trust issue with the American public”, and that it was his goal to increase that trust as part of his tenure.  Of course his first action was to appoint the most untrustworthy and damaged individual he could to a very important position.The right recusal could make a big difference here, otherwise, the Interior Department will continue to be an non-trusted government agency.

The Montana Land and Water Alliance put these thoughts in writing to Secretary Zinke:

The history and record of Mr. Mikkelsen’s work as briefly described above render him unfit for any work on the operation, management, funding, organization or any aspect of irrigation in the FIPP or the Mission Valley Power 638 contract.

If this compact that Mr. Mikkelsen worked on  is ratified, it will have devastating impacts on the agricultural economy of the western Montana and  negatively impact the lives of the 350,000 citizens who reside here. Thus, the vast majority of individuals in Western Montana have no confidence in Mr. Mikkelsen’s ability to fairly and objectively consider their position on these extremely significant water matters.

While we acknowledge the authority of the Secretary of the Interior to select the members of his executive team, we wish to again state our dissatisfaction with the Secretary’s choice of  Mr. Mikkelsen as Deputy Commissioner of the Bureau of Reclamation.

Furthermore, we respectfully request that Mr. Mikkelsen be required to recuse himself from any of the Department’s activities with regard to the CSKT Compact, the Flathead Irrigation & Power Project and project turnover discussions,  or the Mission Valley Power 638 contract.  He has absolutely lost the trust and confidence of many of the irrigators in the FIPP,  except of course those he openly favors.

Choose wisely, Mr. Secretary.

Political Notions and Legal Doctrine

©2016 Montana Land and Water Alliance

As the unconstitutionally-passed CSKT Compact makes its way to the Montana Supreme Court for a review of the lower court ruling on severability, it is important to review just what was planned for Montana if the CSKT Compact had passed.

Words Matter

One of the major mistruths perpetuated by the elected and non-elected CSKT Compact proponents is the statement that Indian Tribes are “sovereign nations” in the same sense that the United States and the States are sovereign entities.  A history of federal Indian policy, our Constitution, and case law prove definitively that in our system there are but two sovereigns—the States and the United States.  What is different about Tribes is that Congress—which has plenary power over Indian affairs, allows the tribes to be self-governing entities but not entities that govern others.

Thus the Compact’s “Unitary Management Ordinance” or “Law of Administration” is patently not viable because the Tribes do not have that authority as prescribed by Congress and are not a ‘sovereign nation’ independent of the United States.  The state, exceeding its constitutional authority, gave that power to the CSKT through “negotiation”, whereas Congress and the President never have. The federal government also exceeded its constitutional authority in permitting negotiators to get this far.

I don’t believe anyone can give this power to another entity. This power is reserved to the Federal Government and the States by the Constitution. Only a revision to the Constitution would allow this and that would take 3/4ths  of the States to approve that revision.  Montana would also have to revise its constitution to permit this jurisdiction.

The political notion that was turned into supposedly “legal doctrine” was a romantic, sympathetic, and essentially respectful view towards the Tribes, which was transformed into “Indian Tribes as sovereign nations” that had control over all citizens just like the States and United States.  That there cannot be three sovereigns in the United States is indicated by the Tenth Amendment:  “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.”

Indian Reservation vs. Indian Country

In the compact, the Flathead Indian Reservation was defined as “Indian Country” instead of “Indian Reservation”.  The term “Indian Country” is actually derived from U.S. Code (18 USC § 1151) and involves criminal matters such as child abuse, gaming revenue, theft from tribal organizations and other issues,  but not land or water.  As used in the Compact, this definition of the Flathead Reservation includes all lands, rights of way, notwithstanding (in spite of) existing land patents.  In other words, everyone’s private land comes under the criminal jurisdiction of the Tribes in the compact using this definition of the Flathead Indian Reservation.

On the contrary, “Indian Reservation” according to Montana and federal law means the “lands within a reservation that are owned by the United States in trust for the tribe.”  In the case of the CSKT, that would include about 650,000 acres of the 1.2 million acre “reservation”.  The rest is owned as private property 100% subject to state taxation and all state laws.

The political concept that was advanced was simply an acknowledgement of Tribes having been here in Montana before others, as in “all of Montana was Indian country at one time”.  No one disagrees with that.  But the adoption of one definition of the Flathead Indian Reservation that improperly expands a political notion to the resolution of the federal reserved water rights of a Tribe is a major fatal flaw in the compact’s “reasoning”.

Constitution, Laws, and Treaties on Equal Footing

How often have you heard the phrase that “treaties are the highest law of the land”?  And then been made to feel that whatever the Treaty says, even if it overrides state law and common sense, is the only law that applies?  But Article VI of the Constitution says “this constitution and the Laws of the United States which shall be made in pursuance thereof and all the treaties made, or which shall be made shall be the supreme Law of the Land”. All three have equal footing—all are the “supreme law of the land”.

Note that a state has no power to make or reinterpret a Treaty, or to pass a law that violates its own constitution or laws of the United States.   The state’s political notion of basically returning ceded lands back to the Tribes was somehow changed into a “legal fiction” that the Tribes had off-reservation water rights.   Thus the state’s reinterpretation of the Hellgate Treaty to state that an off-reservation access right to fish is automatically a water right is flatly unconstitutional.  In the face of clear legal uncertainty of this notion, the state  advanced the unsubstantiated political concept that the “courts would rule in favor of the Tribes” every time.

There is no “Fix” to the CSKT Compact

The information above presents only a few of the extremely serious flaws with the CSKT Compact and prove that even if the legislature were to remove the immunity language, the fundamental  political-notions-turned –legal-doctrine problems with the CSKT Compact will not be resolved.  It was negotiated on false premises to begin with and promoted with absolute bias in favor of the CSKT to the detriment of Montana citizens.

Equally important to note is that the CSKT Compact is the only compact in Montana where these excesses appear.

It’s time for all of these water rights to be resolved in Montana’s General Stream Adjudication.  Then everyone is on a level playing field , rules apply, and the state will have to protect its citizens instead of siding with an adverse party.

The Governor and Water Rights

©2016 Concerned Citizens of Western Montana

The context for the concern discussed in our post Getting Your Water Rights in Order is that Montana’s Governor, Attorney General, and Department of Natural Resources and Conservation seem determined to negate the property rights of Montana citizens and give our water resources to the federal government, under the guise of an Indian water settlement. Let’s not forget that Montana’s Congressional Delegation, specifically Steve Daines, intends to turn over our public lands and national forests to the Tribes under the guise of protecting us from environmental lawsuits.

We are grateful to the Western Ag Reporter for publishing the article below by Dr. Kate.

October 13, 2016

The Governor of any state, along with his Attorney General, has a lot to do with how that particular state protects the property rights of its citizens.  If those elected officials are “captured” by any one or combination of special interests, the economic, moral, property rights, and institutional health of that state can be degraded.  For the last twelve years in Montana, we have had just exactly that—an increasingly obtuse state government led by individuals who have been captured by the special interests of Indian Tribes, environmentalists, big government, and especially in the last four years, the globalist agenda of the democrats.

Perhaps damaged the most by Governor Bullock and his “republican” Attorney General are the water rights of individuals and the ownership of water across the state.  The Governor’s picks for the head of the Department of Natural Resources and Conservation and those critical positions in the water rights bureau, fully captured by the instream flow-federalize-environmental-fish-tribal lobbies, have done much to undermine private property rights to water, the Montana Constitution, and the institutions which are supposed to protect those rights.

As an example, let’s take the Montana Constitution’s directive that all pre-1973 water rights are “affirmed”…or “grandfathered in”.  That literal meaning of the Constitution indicates that those water rights are to be affirmed as is, according to documented historic use.  But the Governor’s agencies have practiced reducing the volume of those pre-1973 water rights in many cases without reason or explanation.  This is especially true of agricultural water rights subject to the increasingly arbitrary DNRC water volume reductions.

The Governor’s appointments for critical natural resource industry positions, like water, minerals, environment, and fish, wildlife, and parks say everything about the direction the Governor wanted to take the state in.  Under Attorney General and now Governor Bullock, the direction that Montana has been taken in is to prevent people from enjoying and using their property rights, to increasingly federalize Montana’s land and water resources, and to give away our public lands to special interests instead of keeping them in state hands.  The Governor’s vision follows the democrat’s strategy nation-wide: federalize/ globalize Montana’s land and water, eliminate private property, and let the environmentalists dictate all natural resource strategy. Rural cleansing, anyone?

It is time to clean house and get our priorities back on track. The rein of Bullock needs to end so we can stop the bleeding of Montana’s resources into the hands of special interests.  Perhaps with a new Governor, the next Attorney General would begin to remember the directives of the Montana Constitution and act accordingly by protecting property rights.

Our DEPLORABLE “Representatives”

© 2016 Concerned Citizens of Western Montana

Why is it that five minutes after an elected Montanan sets foot in Washington DC, Montana values, the Constitution and the people they represent are long forgotten?

We recently reported to you that our Congressional delegation was “Playing with Fire” with bills they have sponsored or currently support that could very likely be detrimental to Montana, and to all western states that have significant amounts of United States Forest Service (USFS) and Bureau of Land Management (BLM) lands located within their boundaries.

Sadly in just a few short days, we have also learned that our congressional delegation has not only been playing with fire, but Daines’ office, when being queried about his own bill, withheld information about other bills that Congress has already voted to ratify or are prepared to ratify that serve to accomplish the same objective.  We have to assume this omission was intentional because in April Daines already voted to ratify one of them. S 2012 sponsored by Lisa Murkowski out of Alaska, passed in both the Senate and the House and will soon make its way to Obama’s desk for signature.

These four bills (and possibly more) appear to be related to a larger strategy related to the management of our Public Lands:

S. 2012 North American Energy Security and Infrastructure Act of 2016
Sponsor:  Murkowski
Status:  Passed Senate 04/16 and House 05/16 – Daines, Zinke and Tester all voted for it

S. 3014 Tribal Forestry Participation and Protection Act of 2016
Sponsor:  Daines
Status:  Introduced to Senate and hearings held 06/16

S. 3085 Emergency Wildfire and Forest Management Act of 2016
Sponsor:  Roberts
Status:  Introduced to Senate 06/16

H.R. 2647 Emergency Wildfire and Forest Management Act of 2016
Sponsor:  Westerman
Co-Sponsors – 14 including Ryan Zinke
Status: Passed House 07/15

The attached table includes links to each of these bills and the language in them  serves to expand tribal control and jurisdiction over our Public Lands, as well as Washington’s inappropriate use of a 638 contract for the purpose of managing these lands.

The Farce of Representation in Washington

FAILURE TO FIX THE PROBLEM DOES LITTLE MORE THAN CREATE A NEW ONE
When asked about S.3014, Senator Daines’ staff conveyed that this was part of a larger strategy related to our Forest Service lands in an attempt to work around environmentalist obstructions to the management of public lands.

Because TRIBEs are exempt from the same laws as the rest of us, including the ability to be sued, legislators believe this is a work around to all of the lawsuits that impede responsible management of our forest lands.  To this we have a few questions:

1. Why not FIX THE ACTUAL PROBLEM of frivolous environmental lawsuits rather than trying to work around it by getting into bed with the tribes and CREATING A NEW PROBLEM?  For starters, how about removing federal judges who align with environmentalists for their “bad or unconstitutional behavior” or looking at the Equal Access to Justice Act that funds many of these lawsuits?
2. Speaking of getting into bed with tribes, has Senator Daines paid attention to what happened in Browning?
3. Why are tribes exempt from any laws that the rest of us are subject to?  Perhaps Daines should be looking at this RULE OF LAW FAILURE instead of focusing on yet one more expansion of federal and tribal overreach.

While we are unable to determine the complete strategy of these separate bills, it seems that each one of them brings a little something to the table.  By trying to “outsmart” the power brokers  and well-funded environmentalists in DC, the consequences of their brilliant scheme will place more shackles on citizens living in the western United States, and pave the way for further, and even more creative overreach in the future.

NOT TO WORRY, WE’LL REMOVE THE OFFENSIVE LANGUAGE FROM THE BILL
One constituent was told that Daines would remove the offensive language in the bill, not to worry.  Unfortunately these staffers failed to mention that the Murkowski legislation had already been passed in both houses with essentially the same language in it.

NOT TO WORRY, WE’RE GIVING THE STATES THE SAME OPPORTUNITY AS THE TRIBES
His office also told at least one constituent that he has co-sponsored a bill that would give the same opportunity to the states.  Remember that currently these federal lands are unconstitutionally held and managed by the federal government, and were originally intended belong to the states.

We looked up that bill S. 3310 sponsored by Amy Klobuchar and co-sponsored by Steve Daines named the Environmental and Economic Benefits Restoration Act of 2016.

Unfortunately for Daines, S.3310 doesn’t come close to allowing states to manage public lands located within their boundaries.  It instead  “establishes a landscape-scale restoration program to support landscape-scale restoration and management that results in measurable improvements to public benefits derived from State and private forest land.”

Hmmmmm….  let’s see if we get this right:

The Tribes are able to contract to manage our public lands, public lands meant to be enjoyed by all citizens, and will reap the benefits thereof.  If Daines has his way, the States will be “allowed” by the federal government to landscape State and Private forest land.

If this is not an assault on the efforts of the American Lands Council to restore federal lands back to the states, we don’t know what is.

One thing we know for certain.  Once tribes are given this huge overreach, it will be impossible for the states to ever have those lands restored to them because taxpayer funds will be used for tribal lawsuits to prevent it every step of the way.

We cannot help but think that subverting any restoration of public lands to the states is the desired outcome of these bills.  After all, Steve Daines, Jon Tester, and Ryan Zinke are all on record as opposing state management of “public lands ” that rightfully belong to the states.  And not one of them have given us any good reason to think otherwise.

THE BIGGEST LIE OF ALL,  THE LITTLE PEOPLE DESERVE A SAY
Today a friend forwarded an email from Steve Daines touting that “Montanans deserve a say” in National Monument Designations.

Was this communication a reaction to his utter disregard for these same “Montanans” when he voted to ratify Senator Murkowski’s Bill S.2012, the North American Energy Security and Infrastructure Act of 2016?

Or does his correspondence instead serve to deflect from S. 3014 and other legislation that has his fingerprints on it?

Who in Montana was told about the hearings on S.3014 or S.2012?  Anyone?  Were the tribe’s afforded the opportunity to testify?

What about due diligence?  Did Daines even bother to contact any of the 11 county governments in western Montana to discuss the jurisdictional or economic impacts his bill S.3014 could have on them?  Some of these counties have more than 80% forest service lands within their boundaries.

The water compact essentially ceded western Montana to the United States / CSKT.  Because our “so called representatives” have failed to consider the implications of these bills, it is incumbent upon citizens to study the practical result of each of them in combination with the compact itself.  In other words, what will these “forest service protection” bills sow in terms of further cessions of jurisdiction, control and financial benefits to one class of citizens to the detriment of others?

Republicans that sponsor or vote to ratify bills such as these are a far greater danger to our country than Democrats who do so.  Why?  Because the public at least generally knows where democrats fall on the scale of tyranny.

Unfortunately the public  incorrectly believes that republicans stand strong for smaller government and private property rights as well as the rule of law.  Montana “Republicans” supporting such legislation serve to undermine our Constitution and to advance an agenda that expands federal government overreach with most folks being none the wiser.

Mr. Daines, Murkowski and others seem to think they are smarter than the rest of us, and therefore know what is better for us than we do.  This is exactly why our country is in the shape it is in.

WHERE DOES GIANFORTE STAND?

While we have not reached out to them yet, we cannot help but wonder what Representative Ryan Zinke, currently running for a second term in Washington against Denise Juneau might have to say about his vote on HR 2647?

We are fairly certain that Governor Bullock supports this effort to expand tribal control and jurisdiction over our public lands.  What we don’t know, is what Greg Gianforte, Bullock’s challenger in the upcoming election thinks about Daines’ plans for our country’s Forest Service and BLM Lands.

We think it is time that the citizens of Montana to get some answers, and to let our congressional delegation know what we think of their ill conceived and poorly thought out plan.

Let them know how you feel about all of these bills and their companion CSKT Compact bill S. 3013 as well as Congressman Zinke’s blind support of the definition of Indian forest lands in  H. 2647 and S. 3014!

Senator Steve Daines: (202) 224-2651

Senator Jon Tester: (202) 224-2644

Congressman Ryan Zinke: (202) 225-3211

While you’re at it, it’s a good time to find out where the candidates coming up for election stand too:

The Gianforte campaign can be reached at:  (406) 686-3886

 

 

 

Federal Domestic Abuse – the Political Ruin of 30,000 Montanans And Confiscation of 350,000 Others’ Property Interests

Note:  Our thanks to Elaine Willman for her permission to print this article that was recently published in the Western Ag Reporter.

Federal Domestic Abuse – the Political Ruin of 30,000 Montanans and Confiscation of 350,000 Others’ Property Rights

At least since1998 and likely sometime sooner, federal and tribal officials were coercing State leaders into submission to surrender major protections of natural resources, property rights, water rights, Constitutional and civil rights of Montanans. A 1998 Memorandum of Understanding (MOU) signed then by Chris Tweeten for the State, of 2011-2015 Water fame and notoriety, as well as tribal and federal officials created the poison potion for the Flathead Reservation property owners to consume.  With the recipe in place, the instructions for administering the concoction were laid out by the CSKT Tribe in a 2001 Proposal for Negotiations.  And they were followed – to the letter over the next 17 years. Within these two documents many years ago was the plan and path to minimize the voice and silence those most directly impacted—property owners within the Flathead Reservation, 80% of whom are non-tribal citizens of the State.

Most of those directly harmed were entirely unaware that from 1998 to 2011 the federal jackboot was being crafted by numerous federal, state and tribal entities. A thirteen-year head start of multiple agencies that withheld public information for this period of time, certainly gave the feds, tribes and state profound leverage over a few courageous citizens asking questions or voicing concerns.

On April 11, 2015, the State Legislature approved the proposed CSKT Water Compact by a vote ruled unconstitutional on July 18, 2016, but this Compact moves forward anyway, for ratification by Congress. To add steroids to the strangling of farming, ranching, property rights, local small town economies, Senator Jon Tester has taken it upon himself to greatly expand the Compact approved by the State Legislature. The Senator as well as a Montana State Court have done end runs around the State Legislature. Tester’s Senate Bill 3013, the Confederated Salish-Kootenai Water Settlement Compact, – trebles the federal dollars to the tribe from 1.2 to 4.0 billion, requires the State turn all State waters over in the Compact land area to the federal government in trust for the tribes, and pony up $55 State tax dollars before the feds disburse the 4 billion.

Neither the Feds nor State will have any liability, nor will the tribe. Neither the feds nor state will have any oversight either. Landowners and residents have not a single government to turn to for redress. A small Unitary Management Board, heavily seated by tribal officials will control all matters concerning Compact implementation and will be the only place those harmed may take a complaint.

It is 2016 now.  Farmers, irrigators, landowners within the Flathead Reservation have lost control or any voice over everything necessary to produce life on their lands. The Tribe has 100% control of access to water. The Bureau of Indian Affairs controls the operation and maintenance of the irrigation districts. The federal government and tribe entirely control the former Kerr dam, with no reporting requirements, and no scrutiny of its public safety. The Bureau of Indian Affairs owns the Mission Valley Power Company that provides electricity to all households and lands within the reservation, and is operated by the tribe. Oh, and the tribe has no duty to non-tribal citizens or to keep America safe.  An unaccountable federal monopoly now controls life on non-Indian lands in Western Montana.

The Secretary of Interior has the last word on the Flathead Indian Reservation for water, power and irrigation. Not the Governor, not the State. Farmers and cattlemen fully know that life doesn’t happen on land without power and irrigation. And it’s the feds and tribes that will now arbitrarily set all rates for each—water and power, answering to no one, not the ratepayers or even the State’s Public Services Commission (PSC). It is the CSKT that no longer contributes to county and school district economic needs, so a substantial tax burden now shifts to the landowners as well. Water rates will go up; irrigation rates will go up; power rates will go up; taxes will go up.  This final economic squeeze is a foregone conclusion—it is a dead certainty.  The only things going down will be business income, household income, and land values. All of this is against the law. In the mid-80s a mission of the CSKT was to remove all non-Indians (approximately 30,000) from the reservation by 2030 “by any means necessary.” The stage is surely set.

Throughout this seventeen year period, during which landowners have been slowly bullied, demeaned and silenced, the State of Montana has made no effort, whatsoever, to protect its citizens and their collective right to own and enjoy the state’s natural (water) resources, for which the state is held legally responsible as a fiduciary under the public trust doctrine. Few attorneys, if any, have lifted a finger to assist the property owners. Public meetings were mere theater, feigned to pretend that any citizen voice mattered. The song sheets of the 1998 MOU and the 2001 CSKT Settlement Negotiation Protocols have been followed to the tune without missing a note or a beat.

Narrowly customized “help” was provided to the Flathead Joint Board of Irrigators (FJBC), keeping conversations limited to in-stream flows and not much else. Efforts by FJBC advisors have intentionally kept chronic divisiveness and dysfunction within the FJBC Board. These eleven fine Board members all deeply believe in the FJBC, are landowners and irrigators themselves, but pitted against each other could cause the collapse of the FJBC.  Apparently, the federal and state governments’ objective have long been to facilitate the failure of the FJBC so that the CSKT Water Compact can succeed. A well-functioning FJBC is a direct obstacle to successful CSKT Water Compact implementation. The FJBC and everyone must lose for the CSKT Water Compact to succeed. The plan set twenty years ago has wrought great fear and pain to truly fine Montanans.

To be blunt, the Interior Department and its Bureau of Indian Affairs now serve as pimps for federally recognized tribes, including the CSKT, who willingly submit themselves before the congressional and executive altar as “dependent” sovereigns to ensure rapid expansion of their “sovereignty” and legal jurisdiction over non-tribal lands, waters and persons; and the State of Montana is a willing and compliant customer, leaving an additional $55 million in State taxpayer dollars on the dresser. Indeed, while the State and Federal government lie comfortably together behind closed doors, the citizens of Montana have publicly had their dearly held constitutional, civil and private property rights pick-pocketed and transferred to others.

The State government has paid little heed to the printed words within the Montana Constitution or within the four corners of the federal Constitution, including the Tenth and Fourteenth Amendments and the Bill of Rights. Abandoned by their guaranteed representative government, good Montana people will be forced to move out and move on. The seven or eight Montana tribes will stand to devour the remainder of the physical State, as Montana’s governing institutions and structure increasingly become puppetry to implement federal directives for even greater tribal sovereignty and jurisdiction.

Want proof that this intentional theft of property owners’ water rights and interests have not been entirely orchestrated and maneuvered by the federal government and its operatives on the ground in Montana?  One small group of citizens recently engaged legal counsel to get their voices heard by the courts and federal agencies, and to claim their rightful due process, equal protection and property rights. And these folks are now painted as Enemy Number One. How dare a few property owners seek to protect their interests and their livelihoods? Those unable or unwilling to support these landowners remind me of the beaten wife contacted by domestic abuse counseling services that offer to help, but she sees them as bringing more trouble to her door, until she’s found dead in her home.

Governor Bullock, and Attorney General Fox:  Should Flathead Reservation land and water owners just lie down and drink the poison? How does that comport with your Oaths of Office? Who would have thought Montana, of all states, would succumb to such federal domestic abuse of the State, and then conspire with the federal government to deny its citizens’ State Constitutional protections of private property, water rights, and due process procedural rights?

This Compact, now bloated and inflated in Senator Tester’s S. 3013 bill is the blueprint and model for rolling out to the six other tribes in Montana, as well as tribes throughout the Western States. The current White House administration is hell-bent on taking down America’s food production by confiscating State waters, using tribal governments and reservations as the launch pads.

Absent support from the State of Montana or any current federal government entity, and in spite of serious demeaning and intimidation, some courageous property owners will eventually have their day in court.  And that is a good and necessary thing if property rights and due process are to exist for citizens anywhere in Montana today or tomorrow.

Elaine Willman, Author

Going to Pieces…the Dismantling of the United States of America (2015); and

Slumbering Thunder…a primer for confronting the spread of federal Indian policy and tribalism overwhelming America (2016)

Email: toppin@aol.com

Phone: 509-949-8055

Manley Rules Vote on SB262 Unconstitutional, but…..

© 2016 Concerned Citizens of Western Montana

MANLEY RULES AT LAST:  THE VOTE IN THE LEGISLATURE WAS UNCONSTITUTIONAL, BUT JUDGE DOES NOT VOID THE LEGISLATIVE VOTE?

Late yesterday, it came to our attention that there was a ruling in the Manley case.  Did this information come to us from the Flathead Joint Board?  Nope.  Instead it came through a newspaper article in the Daily Interlake.  It is notable that the article quoted a spokesperson for the AG’s office, and some excerpts from the Manley opinion, but it seems to have overlooked the plaintiffs, the Flathead Joint Board of Control, as though their comments mattered not to the story, to the newspaper staff, or the public.

What in the world is going on in Montana?

As of the writing of this post, we have not yet seen the decision, making it difficult to decipher what may or may not be accurate in the article.  We also know that the FJBC attorneys did not receive the ruling until late yesterday, so we also have not yet heard a statement from them concerning the decision.  For these reasons we are unable to provide you with any good analysis, however would like to share a few things we do know about this decision.

As the compact was written, the vote in the legislature was unconstitutional.  To that point, Judge Manley was quoted in the paper saying this:

“This is not a close call,” Manley wrote. “The provision creates a new sovereign immunity for the state, and for its agents or employees. The conclusion is clear by resort to either facial interpretation or legislative history.”

From this statement we know the following:

• Technically when the vote is unconstitutional, the entire bill is void. However for some unknown reason, the article indicates that the judge seems to have attempted to show the state how to fix immunity language in the bill.  This leaves open the sickening possibility the courts could attempt to “legislate from the bench” to make those revisions.
• In 2015, Tim Fox’s office seems to have misled legislators and Montana citizens when they came out with an opinion that no new immunity was granted in the compact. Regardless of their competence, intentions or motives, there is little doubt that it influenced the vote in the legislature by interpreting language in the compact in favor of a simple majority vote.
• We’ve known for a long time that Legislative Services attorneys are biased as pro-compact.  Their failure to flag SB262 as requiring a 2/3 vote of legislators due to immunity language in the compact speaks volumes about the push to support the compact and to get it passed in the legislature.  What other illegal and unconstitutional aspects of the compact did they fail to flag for legislators?
• Legislators who relied on the attorney general and legislative services opinions and voted for the compact failed to do their own due diligence.  Because of their oath of office, it is their responsibility to know what is constitutional or unconstitutional.  To rely on the opinion of others, gives deference to the biases and agendas that exist, rather than the constitution.
• We know that the failure of attorneys for the state of Montana to recognize and acknowledge the immunity provisions allowed yet one more work around to and violation of the due process rights of the  citizens of Montana that vehemently opposed the compact. Instead of requiring a 2/3 vote, the goal simply was to pass the bill without amendments, using a simple majority vote in the legislature, hoping that the courts would deal with “problems in the bill” later.  It is impossible to understand why the legislature and the leadership of the state of Montana would allow that to happen.

With all of this, here are a few thoughts and questions to consider:

• We are unclear at this time what “fixing” the bill means. Will it go back to the legislature for revisions or a 2/3 vote?  Will the courts “legislate from the bench” by illegally and unconstitutionally rewriting the bill to remove the offending language?
• Did Judge Manley punt his decision up to what many see as a politically biased Montana Supreme court?
• It also makes one question the timing of Tester’s bill S 3013 and the so called hearing that only proponents of the compact were notified about. One cannot help but wonder if the system so corrupt that Montana officials, the Tribe and the U.S.  possibly knew about the decision ahead of time?  Is this why Tester ignored the lawsuit and submitted his bill in the Senate?
• How is it possible to unwind the problem by “fixing the bill” when the state clearly intended to grant immunity?

The simple truth is that the state’s aggressive support of SB262 decidedly placed its thumb on the scale in favor of  the US / CSKT on this water compact and threw Montana citizens under the bus.  In doing so, the state failed to protect the rights of its citizens under the Montana and U.S. Constitutions.

While citizens are led to believe there is protocol and a process to be followed,  the laws and the constitution have become little more than a façade that keeps us going through the motions of participating in a process that is so corrupt there is little if any chance of a fair and equitable outcome.

However, we must not forget that there are dozens of constitutional and legal issues with this compact.  This lawsuit only dealt with the legislative vote, not the compact itself.

We will update you with a copy of the decision as soon as it is made available.

UPDATE:  a PDF copy of the Manley decision can be found at this link.

UPDATE:  The Daily Interlake contacted us, taking offense to the implication that the decision was leaked to them.  They are right, there is no documented evidence that the decision was leaked.  We apologize for the confusion, and have removed that language from the post.  We continue to maintain that it is unfortunate that Montanans knew about the decision before the plaintiffs did, and that they were not contacted for comment in the article.