The Indian Reorganization Act and Kerr Dam

©2017 Montana Land and Water Alliance

The Indian Reorganization Act (IRA) of 1934 is the organizing document under which the CSKT are formed as a tribal government–actually, a corporation.  In addition, Energy Keepers, Inc. is organized as a tribal corporation under the IRA for the purposes of purchasing and managing Kerr Dam.  Kerr Dam was purchased under Section 17 of the IRA.

Recently the House Natural Resources Committee began oversight hearings on two specific provisions of the IRA, Sections 3 and 5. The Committee and its subcommittees have invited state, county, and local officials to testify on the impacts of the IRA on local communities.  Suffice it to say that “it ain’t pretty”.

SECTION 3.

Section 3 of the IRA  authorizes the Secretary of Interior to take lands into trust for tribes, however, applies some protective provisions that consider the surrounding non-Indian community:

The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public land laws of the United States: Provided, however, that valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act; Provided further, that this section shall not apply to lands within any reclamation project heretofore authorized in any Indian reservation (Emphasis added)

Notice that Section 3 prohibits the United States acquisition of land within the Flathead Irrigation Project, defined in the statute as “any reclamation project…in any Indian Reservation”. This would apply to any agency of the United States, even the quasi-federal agency Bonneville Power Administration, and would include the Fish and Wildlife Service, and perhaps even the Federal Energy Regulatory Commission (FERC). Under what circumstances can FERC, a federal agency, deny the right to the low cost block of power and the net power revenue belonging to the irrigators in a federal irrigation project?

We believe that this is a protective measure for the non-Indians invited by the United States to purchase surplus lands on the allotted reservation, because the removal of land from a federal irrigation project disrupts water delivery, negatively affects operation and maintenance revenue, and negatively affects agricultural production.

Here is the hearing on Section 3 of the IRA, held May 24, 2017:

Do the impacts of Section 3 as described by county officials in this hearing sound familiar?

We believe that any land associated with the federal Flathead Irrigation Project, including rights of way for storage, are included within the meaning of Section 3.

SECTION 5.

Section 5 of the IRA has to do with the ownership of any rights or properties purchased by a Tribe.  The title to these rights or properties is taken in the name of the United States in trust for the tribe.

The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians… Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955 (69 Stat. 392), as amended (Added by Public Law 100 581, title II, sec. 214, Nov. 1, 1988) shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation (Emphasis added)

Notice that Section 5 states that the United States is the owner of all property and rights purchased by a Tribe. We believe this applies to Kerr Dam which is part and parcel of a federal irrigation project and cannot be separated from it.  By virtue of the purchase of Kerr Dam by the CSKT, an IRA Tribe, Kerr is now a federal facility.

Here is the House Hearing on Section 5 of the IRA, July 13, 2017 (2 hours)

Did the purchase of Kerr Dam violate Sections 3 and 5 of the Indian Reorganization Act?

The “Off Ramp”–Will Tribes finally Become Self-Determined & Self-Reliant?

Secretary Zinke had this to say on the Indian Reorganization Act:

“We need a discussion on that. As I look at the 1934 Indian Reorganization Act, I think it’s time for a dialogue. What are we going to be 100 years from now? Is there an off-ramp? If I offered today that the tribe would have a choice of leaving the Indian Trust lands and becoming a 501c3 Corporation, another entity, some tribes would take it. I think quite frankly at BIA (the Bureau of Indian Affairs), I’m not sure in many ways we’re value- added. I’m not sure that we’re providing the services in education in a regulatory framework that promotes self-determination. My friend, I’m not sure we are; and we need this dialogue,” he said.

Is this a viable model?

The House hearings, and the other important Federal Register opportunity to provide further comment, signal a close look at Federal Indian policy during 2017 and beyond, beginning with a fundamental act, the IRA.

Importantly, a Federal Register Notice announced an open-ended review period of major natural resource laws which includes the IRA in the Title 25 of the Code of Federal Regulations

The IRA was supposed to lead to Tribal self-governance and self-determination, the cornerstone of Federal Indian policy. Instead of self-governance, it appears that the IRA has become an Individual Retirement Account for Tribal leaders!

Funding Our Own Demise

Note:  The following information was recently sent out to federal and Montana government decision makers.  It was developed to help elected officials better understand the mind boggling amount of  taxpayer dollars currently being used to fund tribal corporations, and to explain how this taxpayer largess serves to undermine local governance and the rights and protections of all citizens.  Our thanks to the organizations noted below for providing us with this information to be shared with the public.

If tribes are really “sovereign governments” as they insist they are, shouldn’t they be self sufficient?  Then why are state and federal taxpayers funding them?

The information included in the document is sourced, and comes from the public record.  In other words, it is available to anyone who takes the time to look for it.

Get the word out by sharing this information far and wide.  Contact your elected officials and tell them to stop feeding the beast.

Funding Our Own Demise: How Federal Self-Determination Payments to Tribes Deprive Citizens and County and State Governments of their Own Self-Determination

Booklet:  Funding Our Own Demise

This Booklet is a guide for federal, state and county government decision-makers charged with allocating taxpayer funds for essential governmental  services to citizens in geographical locations where Indian Reservations are found within county or state borders.  County budgets throughout the country are increasingly eroded by Tribal programs and federal laws, including land-into-trust acquisition, Public Law 280 regarding jurisdiction, and Public Law 93-638 regarding self-determination contracts.

The purpose of this information Booklet is to demonstrate that taxpayer dollars are being used to support tribal, state and federal programs that undermine and erode the county and state ability to provide basic government services to citizens.

There are significant differences between a county or state government and a tribal government. First, while the state and county governments are constitutionally and legally obligated to provide for all citizens within their jurisdiction, Tribal governments have a limited governmental authority granted to them by Congress to provide government services only to their own constituents under the guidance of the federal government.  In addition, while county governments are largely funded by tax revenue, Tribal governments within the same county are funded almost exclusively by taxpayer funds from the federal government under its policy of tribal “self-determination”.   And finally, state and county government funding is public information and audited, while Tribal government spending of federal dollars may never be audited.

To address overlapping services, the counties and state have established “government to government” relationships.  While the Tribes act to secure access to state and county benefits for their citizens, the federal funding they receive, sometimes for the same services, does not pass through to the county or to the state.  In the context of land-into-trust acquisitions, for example, the federal government funds the Tribe to remove land from the county tax base, but the county is still expected to provide essential government services to the tribe and its members.   Because the federal funds paid out to the Tribes are ultimately derived from taxpayers, it appears that our own tax dollars are being used to undermine our own county and state government’s ability to provide essential services to its citizens.

Comparison of Montana county government revenue across the state with the annual federal funding of the seven tribes in Montana as presented in this Booklet shows that the Tribal funding from the federal government far exceeds state county revenue.   The federal funding used by the tribes to remove land from the county tax base and to purchase major infrastructure removes the tax revenue from the county and signals a demise in county government viability over the long term.  The funding to the Tribes to enact these activities is another example of federal overreach and intrusion into state and local government.  To maintain viable county governments and to guard state taxpayers, this trend must be arrested immediately.

The Crucible:  Lake County

Lake County is an example where federal Indian policy and funding, as well state funding, are acting to devastate the county’s tax base and jeopardize citizens by being unable to provide basic fire protection, law enforcement, road and infrastructure maintenance, and a host of social, health, and legal services for all citizens.  Some of the key factors affecting the county are:

  • Public Law 280 – the Confederated Salish and Kootenai Tribes (CSKT) are the only tribe in Montana where the state has criminal jurisdiction over tribal members, resulting in a disproportionate share of county resources being used for this purpose. It is currently overwhelming to the county budget and local justice system.
  • The 2015 Tribal purchase of Kerr Dam reduced county tax revenues by $1.2 million per year, increasing pressure on the county to either reduce services or to increase property taxes.
  • The CSKT Water Compact –S.3013 introduced by Senator Jon Tester proposed to award a settlement of $2.3 BILLION to the tribe and transfer ownership and management of the Flathead Irrigation Project to the CSKT, reducing irrigator water deliveries by an estimated 40-70%. It also proposes to award vast amounts of water off the reservation to the U.S. / CSKT.   If successful, this transfer will have a severe negative impact on local land values as well as our agricultural economy.
  • Because the tribe does not pay tax on trust land, Fee-into-trust land acquisitions continue to erode the property tax revenue base, making it increasingly difficult for the county to provide basic services to citizens.
  • Fuel tax revenues are intended to cover the cost of road maintenance. Under a fuel tax revenue sharing agreement with the state, the CSKT received $611,000 in gas tax revenue in 2016.  For the same year, Lake County was awarded only $178,000, yet the county is responsible for road repairs.

At the same time, the CSKT annual federal funding is conservatively estimated to be $250 million per year which is ten times Lake County’s budget.  Yet the CSKT do not contribute funding, actions or services that enhance county government abilities, and instead use the funds for other purposes which may or may not be related to the purpose for which they were federally funded.

Evaluating Tribal Requests for Funding

Since its passage in 1975, The Indian Self Determination Act (ISDEAA), or Public Law 93-638 has been used to redefine and expand the notion of tribal sovereignty.  While its original intent was to allow tribes to contract with the federal government to provide services to their membership, it is increasingly being used to expand tribal jurisdiction over non-Indians.  This ignores the reality that non-members are not legally or constitutionally protected within a tribal government system, a structure that often fails to protect even its own members.  Through state – tribal cooperative agreements, Montana also endorses the expansion of tribal jurisdiction over non-members.  We assert that these policies are unsupported by federal statute, case law, or practice, and are unconstitutional.

Considering the information presented in this booklet it is important for decision-makers to evaluate all Tribal requests for funding in the context of the extensive federal funding provided to the Tribe.  Government officials must ensure that any funds awarded are not for services provided elsewhere, and instead use the funds for other purposes which may or may not be related to the purpose for which they were federally funded.

For more information on the data in this booklet, contact any of the following organizations:

Concerned Citizens of Northwest Montana: 
Address:        P.O. Box 3601, Kalispell, MT 59903
Email:            montanavoter@startmail.com

Montana Land and Water Alliance:
Address:       P.O. Box 1061 Polson, MT 59860
Phone:         406-552-1357
Email:          4mtlandandwater@gmail.com

Willman & Davis Intergovernmental Resource Services:
Phone:         509-949-8055
Email:           toppin@aol.com

Copy of Booklet:  Funding Our Own Demise

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

 

 

 

 

Icarus and the CSKT Compact

© 2017 Montana Land and Water Alliance

In Greek mythology, Icarus is

the son of a master craftsman, Daedalus, the creator of the Labyrinth.  Icarus and his father attempt to escape from Crete by means of wings that his father constructed from feathers and wax. Icarus’ father warns him first of complacency and then of “hubris”, or pride and ambition, asking that he fly neither too low nor too high, so the sea’s dampness would not clog his wings or the sun’s heat melt them. Icarus ignored his father’s instructions not to fly too close to the sun; when the wax in his wings melted he tumbled out of the sky and fell into the sea.

This is the tragic theme of failure at the hands of hubris.  There is nothing wrong with ambition or setting one’s sights high. But when an otherwise good cause is infected with greed and advanced by fundamental mistruths–feathers and wax—it can only fly too close to the sun, its wax destined to melt and the feathers fall away.

What a perfect analogy for the CSKT Compact, and how interesting that we have in this story a labyrinth, and wings constructed of wax and feathers to look sturdy and usable but which fail under the heat of scrutiny. The labyrinth is certainly like the complex maze of theories, rules, and pages of the CSKT Compact that the public and legislators had to wade through and try to understand.  And the waxes that hold the contraption together—a wish list of things the treaty and laws supposedly give to the tribes and allow the state and federal government to do—are cloaked in the feathers of hubris.

This is an observation, and by no means are the citizens here done with the correct task of protecting water rights from the schemes and plans of the tribe, state, and federal government under the spell of hubris.  But the wax and feather maze of the compact has melted, and now brings certain litigation:

  1. Property takings. On its face, the Compact plan for the Flathead Irrigation Project (FIP) is a taking of property rights in water of thousands of FIP irrigators including tribal members. No one has to wait for the taking and damage to occur–it exists on its face. This is why the state wanted to exempt itself from any liability involving costs, damages, and attorney’s fees.
  2. Constitutional Violations. The State of Montana has violated numerous clauses of its own constitution in the Executive, Judiciary, and Legislative articles. These issues have been identified and legally documented in the last five years and pave the way for numerous actions that can proceed now. This is also why the state wanted to exempt itself from liability for damages.
  3. Civil Rights Violations. The violations of the civil rights of Montanans by certain governmental officials is also evident in the entire compact proceedings…all that wax that held the feathers together by its existence violated the civil rights of every person in Montana and could compel actions by large groups of citizens. If a man can be said to have property in his rights, then avoiding financial liability for civil rights violations is also what the state intended.

Whatever is next in the court arena, the state, the tribes, and the United States may have trapped themselves in their own labyrinth and hubris…the compact ball of wax and feathers that cannot be supported by fact, law, history, or sunlight.

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.

Western Legal Foundation Seeks End to Race-Based Awarding of Federal Contracts

In light of our recent post on Self Determination:  A Federal Experiment Gone Awry, we were pleased to see this article from Mountain States Legal Foundation, tackling this issue.

Mountain States Legal Foundation:

DENVER, CO.  A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today filed a petition for writ of certiorari on behalf of a Texas company that suffered defeats in its attempt to end the federal government’s use of race to award contracts as unconstitutional, both before a federal district court and a court of appeals.  Mountain States Legal Foundation (MSLF) had advised the District of Columbia federal district court that use by the Department of Defense and the Small Business Administration of a provision in the Small Business Act to award federal contracts on the basis of the race of the business owners and operators is unconstitutional.  Its brief was filed as a friend of the court in the federal lawsuit brought by Rothe Development, Inc., a Texas corporation that bids on and performs contracts for computer systems and programming services.  In 1995, MSLF prevailed in a similar case at the Supreme Court of the United States in the landmark racial preference lawsuit, Adarand Constructors v. Peña, that Time called “a legal earthquake.”  Over a strong dissent, a three-judge panel ruled the provision was not race-based.  MSLF now represents Rothe Development, Inc.“We ask the Supreme Court to declare what all involved in this case know, which is that the statute in question provides for a racial set-aside or quota, and thus must face judicial application of strict, and usually fatal, scrutiny,” said William Perry Pendley, president of MSLF.Rothe often bids for contracts with government agencies, including the U.S. Department of Defense (DOD) and branches of the military, to service computer systems.  In 1998, Rothe lost a bid for a DOD contract to another company, despite being the low bidder, because the contract was awarded pursuant to a race-based program.  In 2008, the United States Court of Appeals for the Federal Circuit ruled that the race-based program, on its face, as reenacted in 2006, violates the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution.

Unfortunately, the DOD continues to award contracts on the basis of race-base through use of Section 8(a) of the Small Business Act, which sets a “government wide goal” that “not less than 5 percent of the total value of all prime [federal] contract and subcontract awards for each fiscal year” be awarded to socially and economically disadvantaged small business concerns.  The Small Business Administration (SBA) is authorized to contract with DOD to provide goods and services and then to subcontract that work to qualifying businesses, either on a “sole source” or on a “competitive” basis; most of the DOD Section 8(a) contracts are sole source.  To participate in the program, a firm must be 51 percent owned and controlled by socially and economically disadvantaged individuals, defined to include “Black[,] Hispanic[,] Native[,] [and] Asian Pacific Americans  . . . and other minorities”).

Mountain States Legal Foundation, created in 1977, is a nonprofit, public interest law firm dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

Help protect constitutional liberties and private property rights, and promote limited and ethical government and the free enterprise system:

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Zinke Halts Transfer of National Bison Range to Tribe

@2017 Concerned Citizens of Western Montana

From a Missoulian article:

“Interior Secretary Ryan Zinke has reversed course on plans to hand management of the National Bison Range to the Bureau of Indian Affairs…”

In the article Zinke is quoted as saying:

“I took a hard look at the current proposal suggesting a new direction for the National Bison Range and assessed what this would mean for Montana and the nation,” Zinke said in an email to the Missoulian. “As Secretary, my job is to look 100 years forward at all of Interior’s resources. I recognize the Bison Range is a critical part of our past, present and future, which is why I have changed course.”

The CSKT response:

We understood that President (Donald) Trump and Secretary Zinke himself had promised about not selling off public lands, but from my perspective, that isn’t what this is,” Finley said Wednesday. “It’s more of a restoration of reservation land, which is different than selling public land. That was the understanding with the previous secretary of interior. We’ll have to speak with the secretary and the (CSKT Tribal) Council, and look at what our possible options are going forward.”

We disagree with the tribe’s assessment.  It is not a restoration, it should instead be called exactly what it is:  a proposed transfer of wealth to a tribal corporation by taking public lands, and transferring that to the Tribes. Had the plan been approved, it would have resulted in a transfer of public lands to a special interest federal corporation at the expense of every citizen of this country.  And access to that Bison Range would have been used as more extortion of the public.

Note to Chairman Finley: What ever land has been restored to the reservation was completed in 1934 with the Indian Reorganization Act.  Now its time to be productive citizens, not living on the public dime.

It also is one more avenue toward the undermining of our local government, and once again pushes the envelope of attempting to establish precedent for returning ceded lands back to tribes, not through the will of Congress, but through the will of an appointed bureaucrat.

Keep in mind that the tribes were compensated for their ceded lands, including the Bison Range and title to them was extinguished at that time.  Payments to the CSKT were awarded through various congressional actions as well as Indian Claims Commission and Court of Claims complaints that the tribes took against the United States many decades ago, and these actions were intended to be final resolutions of the tribe’s complaints.  The Tribes complaints and legal claims are now stale claims that were settled long ago.

Do you recall the term “Groundhog Day”?  Why is it that through the decades we continue to deal with the same issues over and over and over again?

The bold movement proposed in this latest Bison Range go around, to transfer what are public lands to the CSKT, very much reminds us of a 2012 request by the United Nations to “restore” Indian lands back to the tribes.

For more information on Zinke’s Bison range decision, including the uninformed and politically correct responses of our “congressional delegation”, please see the Missoulian article at this link.

As far as options being considered by the tribe, we frankly wouldn’t be surprised if the CSKT attempt to use their congressional lapdogs, particularly Jon Tester,  to present legislation to achieve the tribe’s objective to own the Bison Range once again.

This tired old game has now been completely exposed and will not stand. the Tribes are self-determined and do not get to exercise jurisdiction over public lands or the private resources of others.

Montana Common Core “Sovereign Math”

©2017 Concerned Citizens of Western Montana

We recently mentioned the revenue sharing agreements that the state of Montana has with each of the seven tribes located within its boundaries.  Since 2006, the tribes have received more than $100 million in revenue from the state of Montana for these various agreements.  This information has proudly been reported by the Montana Governor’s Office of Indian Affairs annual reports.  Here is a one page summary of the revenue sharing agreement monies paid to Montana tribes since 2006.

While we cannot speak to all of the agreements, we would like to briefly look at one, the gasoline tax sharing agreement between the state of Montana and the CSKT.

Below is information pertaining to the amounts paid out by the state of Montana for 2016 (the numbers in red come from the state of Montana Department of Revenue office):

DESCRIPTION NON- TRIBAL TRIBAL TOTAL
Lake County Population * 23,410 5,340 28,750
Lake Co Gas Tax Revenue remitted to state by distributors $2,800,000
Gas Tax Revenue remitted to the CSKT  $611,000 $611,000
Gas Tax Revenue Remitted to Lake County ** $145,000 $33,000 $178,000
Total Gas Tax Benefit $145,000 $644,000 $789,000
Per Capita $6.19 $120.60 $27.44

*   Population figures are estimates from federal census and state information. 

** This chart assumes that Lake County gas tax receipts are distributed evenly between all citizens the county serves.

How is this kind of disproportionate distribution even close to acceptable, and why is Montana collecting and remitting any tax monies to the tribes?

HOW DID REVENUE SHARING AGREEMENTS COME ABOUT?

In a 2015 memo to the State Tribal Relations Committee, Andy Huff, counsel for the governor’s office conveyed the following:

Because the increasing complexity of jurisdictional questions within reservations, the State of Montana passed State-Tribal Cooperative Agreements Act in 1981. The authorizes to enter into cooperative agreements the provision services on for other reasons, including law Act, as originally passed 1981, contained no provisions specific to tax agreements. HB 25, 309, L. 1981. The language of the bill, however, was broad enough to encompass tax the history the bill indicates that taxes were contemplated as an area covered by the bill.

He then goes on to say:

By 1990’s there were U.S. Supreme Court decisions involving taxation motor fuel, alcohol, cigarettes, and oil and gas on Indian Reservation’s…….

…… The 1993 state legislature took the Supreme Court up on its suggestion of cooperative tax agreements, amending State-Tribal Cooperative Agreements to explicitly provide for such agreements.  Both the Montana Departments of Revenue and Justice supported amendment of the Act to explicitly authorize tax agreements and revenue sharing….As stated in the Act, “It is the goal of the legislature to prevent the possibility of dual taxation by governments while promoting local, and tribal economic development.” § 18-11-10 1 (3), Mont. Ann….

…. The Act allows a public agency to enter into an agreement with a tribal government to “assess and collect or refund any tax or license or permit fee lawfully imposts by the state or a public agency and a tribal government and ot share or refund the revenue from the assessment and collection.” § 18-11-103 (1)(b), Mont. Code Ann.

For reference, in 1993 Marc Racicot (R) was governor and Joseph Mazurek (D) was the attorney general.  It was also in 1993 that Marc Racicot signed a proclamation setting the state on the pathway to establishing sovereign “government to government” relations with the tribes.

IS A COURSE CORRECTION REQUIRED?

How is it that the CSKT get more than 4 times the money, when the county has 5 times more population to support, and most of the roads to maintain?

Do such actions by the state of Montana serve to undermine local governance through their tribal government deference policies?

Does the same disproportionate situation exist for the other local governments located in the same county as the other six Montana tribes?

Why should the state of Montana collect and remit tax revenue to any tribe?

Gasoline tax was intended to be for road maintenance, and the CSKT is clearly the recipient of the lion’s share of the gasoline road tax funds for the county.   Is this inequity the reason that our roads are in such bad shape?

What is the CSKT spending their windfall on?

Can or will this PANDORA’S BOX be used to expand tribal tax windfalls to things such as agriculture property or property tax?  How about our state income tax?

What, if anything, can or should be done to correct this problem?

It appears, at least in this case, that such tribal revenue sharing agreements have succeeded in their stated goal of expanding “tribal council economic development”.  But this boon for the CSKT Corporation treasury has clearly been to the detriment of of our local county government and the services they are able to provide.

We cannot help but wonder which administrative idiot, working for the state of Montana, “negotiated” such a ridiculous, one sided, and lopsided contract with the CSKT?

Perhaps it was someone from the Montana Reserved Water Rights Compact Commission.

 

 

Chief Water Court Judgeship Vacancy

This post is for general information purposes.  Please reference the press release below concerning the expiration of term for the Chief Montana Water Court Judge:

FOR IMMEDIATE RELEASE:  JUDICIAL NOMINATION COMMISSION SOLICITS APPLICATIONS FOR  CHIEF WATER JUDGE

Chief Justice Mike McGrath has notified the Judicial Nomination Commission that the term of office for the Hon. Russell McElyea, Chief Water Judge, expires July 31, 2017.

The Commission is now accepting applications from any lawyer in good standing who has the qualifications set forth by law for holding the position of Chief Water Judge.  The application form is available electronically at http://courts.mt.gov. Applications must be submitted electronically as well as in hard copy. The deadline for submitting applications is 5:00 p.m., Thursday, May 4, 2017. The Commission will announce the names of the applicants thereafter.

The public is encouraged to contact Commission members regarding the applicants during the public comment period, which will begin Friday, May 5, 2017, and close Monday, June 5, 2017.

The Commission will forward the names of three to five nominees to the Chief Justice for appointment after reviewing the applications, receiving public comment, and interviewing the applicants if necessary.  The person appointed by the Chief Justice will serve a four-year term subject to Senate confirmation at the next special or regular legislative session. The annual salary for the position will be $132,567.

Judicial Nomination Commission members are District Judge Richard Simonton of Glendive; Janice Bishop of Missoula, Karl Englund of Missoula, Elizabeth Halverson of Billings; Hal Harper of Helena; Lane Larson of Billings; and Nancy Zadick of Great Falls.

Here is the public information currently on the state website.  Updates including the lists of applicants can be found at this link.

CHIEF WATER JUDGESHIP VACANCY

  1. Notice of vacancy from Chief Justice
  2. Nomination and appointment schedule
  3. News release soliciting applications
  4. Application form
  5. Applications and writing samples:

To date, the only application posted for this position was from William Russell McElyea, the current Chief Water Court Judge.

Here is the timeline of events related to filling the vacancy:

Event Date
Receipt of notice of vacancy from Chief Justice Monday, April 3, 2017
Public notice of vacancy and solicitation of applications – (Within 10 days of receipt of notice of vacancy – 3-1-1007 (1)(b), MCA Tuesday, April 4, 2017
Deadline for receipt of applications (Application period must be at least 30 days – 3-1-1007(1)(c), MCA) Thursday, May 4, 2017
Notice to public and start of public comment period Friday, May 5, 2017
Public comment period ends (Comment period must be at least 30 days – 3-1-1007(1)(d), MCA) Monday, June 5, 2017
JNC selects interviewees (conference call) Wednesday, June 7, 2017
Interviewees notified of interview date (At least 10 days before interview date —  JNC Rule 5.2) Wednesday, June 7, 2017
JNC conducts interviews in Bozeman (if necessary) Monday, June 26, 2017
Deadline for JNC to submit names to Chief Justice  (Within 90 days from receipt of notice of vacancy –  30101007(3), MCA Sunday, July 2, 2017
Chief Justice (Montana Supreme Court) makes appointment No deadline

 

Tribal Governance: Self-Determination or Sovereignty?

©2017 Montana Land and Water Alliance

On the heels of the very important previous guest post, we begin a series of posts that address the issue of what the Tribes call “Tribal Sovereignty” and examine what that really means legally, as opposed to wishful thinking and myth-making.

The reason this discussion is important right now is because the uninformed view of Tribal governance and sovereignty has improperly allowed our state government and some legislators to violate the constitution and civil rights of Montanans, to give away their property rights, and to destroy the state-based judicial remedies for Montana citizens. Otherwise known as, the CSKT Compact.

Here are some basic questions that we all have, but are almost afraid to ask because any question of the Tribes is met with the accusation of  being a “racist” or anti-Indian.  Our state officials and some legislators have used these very terms to describe all opposition to the CSKT Compact, all the while claiming that somehow the tribes are “super-citizens” whose authorities trump state and local governments.

  • Are Tribes really a “nation within a nation”, or something else?
  • Does a tribe and tribal government have the same sovereign powers as a state, the citizens of the United States, and the United States?  That is, do Tribes have governmental power over non-Indians?
  • What is the source of “Tribal governance”?

The fundamental problem that has arisen is that the Tribes, and federal agencies, have advanced the political notion that tribal governments have the same legal power as the state and federal governments over everyone–counties, non-Indian citizens, the states, and in our case, the federal government.  The Tribes have set themselves up as possessing more rights and more “sovereignty” than the rest of us.  Hence their assertion of “ownership and control” over all natural resources, for example.

Source of Governing Power–the Constitution

The basic framework for “governance” in the United States originates with the Constitution and Bill of Rights.  These documents were written by the people of the independent but united sovereign states of America which prescribed a limited role for the federal government and self governance of the states and people within those states.  The Tenth Amendment to the Constitution enshrined the self governance of the people and the states:

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.

This enshrines the “self determination” of the states and their people, a principle fought for during the Revolutionary war and now embedded in our Constitution.

Do you see the words “Tribal governments” or “Tribes” in either the constitution or the Tenth Amendment?

Let’s look a little further.  The Constitution established three branches of government–the Executive, the Legislative, and the Judiciary.  The Executive is responsible for enforcing the laws of the land and is empowered to make Treaties by Article II, Section II of the Constitution:

He shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties

Importantly, the President can make Treaties only with the advice and consent of the Senate, and the general purposes of Treaty-making are to protect the citizens of the United States.

Thus the Treaty making power with the Indians is derived from the Constitution, and is vested in the President with consent of the Senate.  That is why every treaty is actually a federal statute–a federal law.  For example, the Treaty of Hellgate was negotiated under the auspices and by the authority of the U.S. Constitution and is actually a federal statute:

Treaty of Hellgate 12 Stat. 975

Although negotiated in 1855, it was not ratified by the Senate until 1859.  So the actual date of the Treaty of Hellgate is 1859.

Before the American revolution, the Colonies, Great Britain, France, and other “owners” of the land that is now within the territorial jurisdiction of the United States had an early recognition of the separateness of the various Indian tribes and their right of territorial occupation. In recognition of this separateness the Article I Clause 8 gave Congress the:

To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.

Regulate, according to a contemporary dictionary at the time, meant “to make regular”.  Commerce is regulated with foreign Nations, AND among the several states, AND with the Indian Tribes.  Notice that “foreign Nations” are not the same as “the Indian Tribes”.

As the United States expanded its territory through the Louisiana Purchase, the Treaty with Great Britain, and the Alaska Purchase, it became necessary to make Treaties with the Indians so as to protect the people of the United States.  Therefore, pursuant to the authority granted to the President under Article II of the U.S. Constitution, treaties were negotiated with the Indians and such treaty only became effective through Senate consent.  All Treaties with the Indians are therefore federal statutes, and originate from the authority of the U.S. Constitution and are vested in the Executive.

Article II Section 10 prohibits the states from entering into any Treaty—they do not have the authority. thus the State of Montana has no authority to renegotiate, create, change, alter, or apply new significance to Treaty of Hellgate as they did in the CSKT Compact.

The Treaties are not superior to the Constitution because they are authorized by the Constitution and are federal law.  The so-called “supremacy clause” of the Constitution actually sets up the  Constitution as the supreme law of the land, not the federal government or the Treaties. Per Article VI of the Constitution:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Emphasis added.

Although one can argue what the true purpose of the Indian reservations were at the time they were created, the Treaties and further federal law granted to the Tribes the power to govern themselves and to arrange their own internal affairs.  Notice that the original notion of the Constitution–self governance–was similarly afforded to the Tribes by the United States.

Thus the source of the Treaties, Tribal governance, and tribal “sovereignty” is the United States Constitution.  The Tribes’  claims of “inherent tribal sovereignty” ARE its rights to govern its own people and to arrange its own affairs…NOT the affairs of others.

The CSKT Compact Context

So, how did the Tribes gain control over the water resources, lands and activities of non-Indians living on private land within the Flathead Indian Reservation?  And how did they gain water rights to fulfill an access right to fish in lands they ceded to the United States?  In the context of our discussion above, here are a few possibilities:

  • The Tribes were successful in creating a new definition of “tribal sovereignty” and its powers as a “nation” to convince state lawmakers and regular citizens that they had the same sovereign powers as the state of Montana, who is authorized by its constitution to manage, own and administer the water resources of the state for the benefit of its citizens.
  • The state of Montana accepted this flawed, unconstitutional, and legally incorrect notion and gave up its citizens’ rights to the CSKT
  • The state of Montana, without any constitutional or legal authority, reinterpreted the Treaty of Hellgate, particularly Article III, to grant to the CSKT more rights than the U.S. Constitution allowed it to give.  Remember the states have no authority to enter into or reinterpret any treaty made under the laws and Constitution of the United States.

The state, Tribes, and United States counted on the lack of knowledge of these issues by the Montana public and its citizen legislators.  Thus they were able to throw the words “racist”, “anti Indian”, and “anti-government” around like candy, intending to intimidate anyone who questioned the legal, property, and moral assaults on the citizenry brought forward by the Compact.

Intentional?