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.

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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?

 

 

Self-Determination: A Federal Experiment Gone Awry

Note:  What follows is a guest post sent from a member of the public who has been digging into the issue of federal and tribal fraud, waste and abuse.  They asked that their identity be withheld.   We’ve invited them to be a guest author on the blog to discuss some of the results of their research.

Thank God for the internet.  As much as traditional media outlets have tried to quiet stories on the perversion of our country’s intelligence agencies,  the news is still getting out to those who seek the truth and are able to understand the implications of a possible large scale surveillance of American citizens.

It ALMOST makes the problems in western Montana seem small in comparison,  however we cannot ignore that there is in fact a HUGE problem, an INDIAN SELF DETERMINATION monster, created by the federal government and fed by state and federal taxpayer funds.  Keep in mind that self determination tribes are little more than special interest federal corporations.

INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT (ISDEAA)
Signed into law on 4 January 1975, this legislation completed a fifteen-year period of policy reform with regard to American Indian tribes. Passage of this law made self-determination, rather than termination, the focus of government action, reversing a thirty-year effort to sever treaty relationships with and obligations to Indian tribes. (Source: Encyclopedia.com)

The purpose of the ISDEAA is to allow tribes to contract federal functions that are created for the tribe because of their special status as tribes.  For example, the Indian Health Service was created for Tribes, so they can contract that federal function.  But the Tribes cannot “contract” projects that are built for everyone, like the Flathead Irrigation and Power Project.  The Tribes tried to “contract” the FIPP but were denied it by the Department of the Interior.

The Tribes have perverted this concept of self -determination into a notion of “sovereignty”, by which they claim to be able to control the affairs of others.

Under the guise of Indian Self Determination, tribes around the country are being awarded vast amounts of grant, financial assistance and contract monies.  A large portion of this money is used to hire attorneys, grant writers and lobbyists for the purpose of gaining control and jurisdiction over non-members and their property, to acquire ownership of infrastructure and natural resources within their “aboriginal ceded lands”, and to seek creative new ways to plunder additional resources out of taxpayers pockets.

As a friend likes to say:  self determination as intended by the federal government is SELF determination for the tribes to make their own path.  It does not mean Indian determination over the future of everyone else.  Unfortunately western Montana has become the poster child for what was a well intended program that has gone seriously wrong.

To paint a very small picture of this problem, over the last 9 years tribal governments in the United States have received more than $18 billion in Department of Defense Contracts:

usaspending print screen

Note that this is not the total amount of the contracts awarded to tribes, it is simply payments that have been made to tribal governments against those contracts.

Getting on the Department of Defense bandwagon, Montana’s tribes have received $1.5 billion of those funds, 86% of which went to the Confederated Salish and Kootenai tribes.  Adding to that, last November the CSKT was awarded an additional $4 billion dollar Department of Defense contract.

This begs many questions, but here are a few that quickly come to mind:

  • Do tribes have the “expertise” necessary to fulfill Department of Defense contracts, or do they perform a lesser administrative type role?
  • Have the tribe’s “partnered” with others concerning these contracts?
  • Are contracts being awarded because the use of a tribal partner gives a contractor a “minority” preference advantage of some kind during bidding?
  • Does the award of these contracts have anything to do with the tribe’s special exemptions from certain laws?
  • Is there some kind of tax benefit for this kind of arrangement?
  • Does the award of these contracts in any way shield the funds from special scrutiny that other government contractors might be held accountable to?
  • Do individual tribal members benefit from these contracts, or is the profit from them used for other purposes?

Department of Defense contracts are just the tip of the iceberg when it comes to taxpayer largess for all things tribal.

Stay tuned for more.

Note to readers:  For the record, this is not just a western Montana problem.  Over the years, this blog has been contacted by people in many different states expressing similar concerns about the overreach of tribes in their area.

Here We Go Again: HB605

©2017 Concerned Citizens of Western Montana

Why is it that representatives seemingly start out with the best of intentions, but when solving a problem they often end up creating new problems with their solution to the first problem?  Why is it that the “solution” chosen does not get at the core of the problem?

We saw this happen with Steve Daine’s bill S.3014, proposing to fix the “environmental lawsuit” problem (created by Congress) by turning management of our public lands over to tribes.

So we have to ask, is Representative Greg Hertz ( R-HD12) fixing any problems with his latest proposed legislation?  HB605, scheduled for a hearing in the House Taxation Committee on 03/23/17  proposes:

A BILL FOR AN ACT ENTITLED: “AN ACT PROVIDING FINANCIAL BENEFITS TO CERTAIN BUSINESSES; PROVIDING TAX BENEFITS TO A NEW OR EXPANDED BUSINESS ON OR ADJACENT TO A MONTANA INDIAN RESERVATION; PROVIDING A TAX CREDIT FOR A PORTION OF GROSS WAGES PAID BY A NEW OR EXPANDED BUSINESS ON OR ADJACENT TO A MONTANA INDIAN RESERVATION, WITH AN INCREASED AMOUNT FOR EMPLOYING AN ENROLLED MEMBER OF A TRIBE OR A VETERAN; PROVIDING FOR A SMALL BUSINESS INVESTMENT TAX CREDIT; REVISING THE BIG SKY ECONOMIC DEVELOPMENT PROGRAM; PROVIDING RULEMAKING AUTHORITY; AMENDING SECTIONS 90-1-201 AND 90-1-204, MCA; AND PROVIDING AN APPLICABILITY DATE AND A TERMINATION DATE.”

A pdf version of the complete bill can be found at this link.

When queried about this bill, Representative Hertz confirmed that his goal was to help individual tribal members and take the burden off of county governments by encouraging new business in the community.  While noble in intent, it does nothing to fix the PROBLEM.

There is no doubt that many areas of Montana are suffering economically, and tribal unemployment rates throughout the state are at horrific levels.  The easy answer is to throw money at the problem, without ever fixing the problem itself.

So what is the problem?

Let us begin by telling what isn’t the problem.  The problem is not lack of money.

Why are individual tribal members suffering at all?  Seven Montana tribes, through more than 80 different “tribal” corporations, received a combined total of $4 billion dollars in federal money over the past 8 1/2 years. Source:  USAspending.gov

The almost uniform failure of Tribal governments—their tribal councils–to actually address the needs of their tribal members, lifting them out of poverty, encouraging land stewardship, private enterprise, and financial independence, is a testament to the failure of “throwing money” at the Tribes and trusting them to actually take care of their own tribal members.

Montana is also on the “feed the tribal corporations” bandwagon.  Over a three to four year period, Montana paid 8 tribes, including the Little Shell band which is not even a federally recognized tribe, a combined total of $212 million or nearly 1/4 of a billion dollars, mostly for social programs such as health, housing and education. Source:  http://transparency.mt.gov/

More than $30 million of Montana expenditures to tribes consisted of “revenue sharing agreements”, agreements where the state acts as the taxation arm for the tribal corporations and then forwards the money to them:

Amount Revenue Sharing Agreement (2014-2016)
$  1,474,000 Alcohol
$14,714,000 Tobacco
$12,379,000 Gasoline
$  1,826,000 TERO (Tribal Employment Rights Ordinance)
$30,393,000 Total MT Revenue Sharing Agreements with Tribes

Source:  http://tribalnations.mt.gov/trreports

Tribal unemployment rates and other indicators absolutely show that individual tribal members don’t benefit from the federal and state government largess that is heaped upon Montana’s “tribal corporations.”

So let’s ask the question:  Exactly what are the tribal elite doing with all that money, and why isn’t it helping their people? Instead it appears simply to be expanding the wealth of “tribal corporations,” and enabling the hefty contribution of bribes money to federal and state lawmakers for the purpose of acquiring even more money and expanding tribal jurisdiction over non-members.

Do state or federal officials ever audit or verify that the funds provided to the tribes are spent for the purposes intended, or to see if such expenditures effectively address the problems the money was intended to solve, or is all of this money just going into an endless tribal government black hole?

So where IS all of that money going?

In HB605, local representative Greg Hertz attempts to fix a problem without taking a serious look at what is really going on with Montana tribes.  In other words, tax credits are not the answer to unemployment, drug abuse, or poverty.  How about our federal and state representatives consider shedding light onto what Montana tribal corporations are doing with all their money before throwing more at them? Might this daylight actually help individual tribal members as well as the taxpayers of the state of Montana?

Here is the reality and gravity of our situation in western Montana:

The pages of this blog are full of factual examples of the aggression of our local “tribal” corporation and the state’s willingness to cede its water, the rights of its citizens, and the laws and constitutional frameworks upon which citizens rely.  Why in the world would any business that has done its own due diligence want to open a business anywhere near Pablo Montana?  And by what authority, law, or legal rule does state give taxpayer money to Tribes or businesses that hire tribal members off the reservation?

While the “goal” of this bill might have been to “initiate discussion” about the issues, we should be “happy” that the state has no additional money right now, especially for more tax credits benefiting Tribal members at the expense of other state citizens. Because in a “flush” year, this bill would pass no questions asked, which again underscores our representatives’ obtuse attitude to knowing how to craft solutions that actually work instead of kicking the can down the road at the expense of Montana taxpayers.

Proposing bills to start a conversation is not a proper way to provide representation for Montanans.  This mechanism relies on emotional arguments that can be used to “guilt” other uninformed legislators to fund everything tribal, regardless of reality and the law.

Bills such as this mean we must forever be vigilant in our efforts to expose what is going on with legislation related to tribes in the state of Montana, particularly bills that serve to enrich “tribal corporations” while their members languish under the weight of bloated tribal governments along with the rest of us.

State and Federal leaders can begin to solve these problems by taking an honest look at the flawed system and Indian policies that have created them in the first place.

Instead of throwing more money at the problem, someone needs to follow the money that’s already out there!

Implications of the Wyoming and WOTUS Rulings for the CSKT Compact

©2017 Montana Land and Water Alliance

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

As we have reported in these pages, the CSKT Compact was never about settling the federal reserved rights of the Tribes, protecting culture, or protecting a fishery.  Instead, the compact represented a vast and obscene federal water grab disguised as an Indian water settlement.  Recall that the CSKT compact claims tens of millions of acre feet of water in western Montana on and off the reservation on lands that the Tribe ceded to the United States. The CSKT also claimed water rights on so-called “subsistence territory” in eastern Montana in which the CSKT were barred by the Judith River treaty and inter-tribal warfare from having a permanent presence.

Bear in mind that the extensive CSKT water grab was enabled by the state of Montana executive—specifically Governor Bullock and Attorney General Tim Fox–who took it upon themselves to reinterpret the Treaty of Hellgate and to ignore the legal “rules of the road” for federal reserved water rights quantification. This allowed the state, via Attorney General Fox,  to assert that the CSKT had more rights than regular Montana citizens who own land in fee and more rights than even the federal government had ever given Tribes.

Timing of EPA Aggression and CSKT Compact Not a Coincidence

Therefore, it was no coincidence that the CSKT Compact was introduced to the Montana legislature at the very same time that the Environmental Protection Agency (EPA) was expanding federal jurisdiction over water and land through aggressive Tribal “grant” programs like in Wyoming, and the issuance of the Waters of the United States (WOTUS) rule.   These federal actions in other states would have given the unlawful CSKT-federal water grab in Montana the illusion of “federal law” backing this compact, just like the CSKT Compact endorsement by the Attorney General gave the compact the illusion of  “state constitutionality”.  In fact Mr. Fox went so far as to say the private landowner’s Constitutional rights were diminished because they lived within the “exterior boundaries of the reservation”.

The WOTUS rule was thankfully negated by President Trump in an Executive Order, noting that federal agencies do not make law. The practical result of this action is that the states still retain their authority over the waters within their boundaries and the mandate to protect individual state water rights.

In the Wyoming matter, an air quality grant to the Wind River Tribes led to the assertion of jurisdiction over all activities on certain lands that were ceded to the United States and allotted under the various homestead and reclamation laws.    The Wyoming Farm Bureau—representing irrigators on those lands—had the legal standing to file suit and did so, eventually winning the case.   The Court said:

“We also find the Wyoming Farm Bureau has standing to sue on behalf of its members…..  In this case, some Farm Bureau members own farms within the disputed area and face the costs of complying with a new regulatory regime following the EPA’s decision…. Therefore, we find the Farm Bureau has standing to sue on behalf of its members.”

According to the Mountain States Legal Foundation press release, “exactly what kinds of problems did Wyoming farmers face?  Nothing short of the possibility that non-Indians would be sued in tribal courts that, under the Constitution, have no jurisdiction over non-Indians.  And the possibility that those convicted of crimes in Wyoming courts would be set free because of claims that the case should have been tried in tribal court.”

These very same problems are those now faced by thousands of Montana citizens affected by the CSKT Compact.  The vehicle for this assault on Montana citizens is the Compact’s proposed “Law of Administration”, wherein the state unnecessarily gave up its constitutionally mandated authority to protect and administer the water rights of its citizens and crippled the ability of Montanans to use both the state district and Supreme Court to seek remedies. In contrast to the Wyoming Farm Bureau, the Montana Farm Bureau also failed to recognize this reality and threw western Montana irrigators under the bus by supporting the CSKT compact.

Cede Means Cede—Title is Extinguished

The Wyoming Farm Bureau’s victory in defeating EPA’s land grab has implications for Montana and the CSKT Compact.  The Tribes—supported by the state of Montana—claimed not only that they had water rights on lands they ceded to the United States, but claimed ownership of water rights on private lands within the exterior boundaries of the reservation that were purchased and settled by homesteaders and others.  The CSKT have been compensated over and over again for these same lands, and after the allotment of lands through Article VI of the Hellgate Treaty and in 1904, the aboriginal title to those lands has been extinguished.  The court found in the Wyoming case that the word “cede” actually means “cede”:

“Our task is not to divine why Congress may have chosen certain synonyms over others in this particular Act.  We believe Congress’s use of the word “cede” can only mean one thing—a diminished reservation.  A review of several dictionaries from the turn of the twentieth century confirms that adding the words “sell” or “convey” would not materially change the intent Congress evinced in the 1905 Act.  And in any event, Article II of the 1905 Act includes the word “conveyed”.

Article I of the Hellgate Treaty confirms that the CSKT forever ceded and relinquished all title, rights, and interest in and to their aboriginal territory in western Montana to the United States.  But the first two recitals of the CSKT Compact completely negate this actual history, claiming water rights, fishery rights, and co-management rights for water on all those lands they ceded and were paid for. Remember that the CSKT threatened to file “10,000 additional claims” in eastern Montana if the compact was not approved by the legislature…and when it was allegedly approved, the CSKT filed the claims anyway.

Explanation Needed

Would it surprise you to know that at the same time the Montana Attorney General was pushing the CSKT water compact, he was also filing briefs in support of the Wyoming Farm Bureau  litigation and the states challenging the WOTUS rule?

In fact, on the very same day in February 2015 that the CSKT Compact was being heard before  the MT Senate Judiciary Committee and citizens were begging the legislature to protect their water rights, AG Fox was testifying before Congress that his job was “to protect the water rights of the state and the citizens of Montana”.

How can the Attorney General reconcile his actions against the federal overreach of WOTUS and in Wyoming with his unwavering support of the federal water grab represented by the  CSKT Compact?

Protecting Culture, Water, Sacred Sites?

©2017 Concerned Citizens of Western Montana

The months-long occupation protesting the Dakota Access Pipeline (DAPL) was supposedly about protecting water, Indian sacred sites, and culture…or so they told us.  Despite the Standing Rock Tribal Council’s approval of the project, thousands turned out to “protect” the water.

The result?

They left taxpayers with a $1 million dollar price tab for cleaning up the mess.

Reminds me of the yelling about the CSKT Compact—how it is about protecting culture, water, and sacred sites.  Gee, and how you were a “racist” if you didn’t support it.

the fact is the CSKT Compact has nothing to do with water rights, Indians, culture, fish, or the environment.  It is all about money for a small group of tribal elite and state officials who covet more power, political positions, and power over others. It seeks revenge for spite.

  • Why would the state abandon its citizens?
  • Why would your neighbors want to give away your water rights?
  • Why would compact proponents insist on being hostile, accusatory, and emotional about the Compact?
  • Why would the United States want to destroy its own federal irrigation project, and why would Jon Tester go further in enabling the complete destruction of the agricultural economy in the Mission Valley by the Tribes?
  • Why would the state, knowing it has absolutely no authority in a federal irrigation project, continue to hoodwink the FJBC that “it will be around forever” and that in order to find out what’s going on, they have to be at the table?  As we indicated in an earlier post, read Appendix 3.5 to find out exactly how the state intends to destroy the Flathead Irrigation Project in favor of some “fishery” that doesn’t exist.

This compact has nothing to do with fish.

The blind supporters of the CSKT Compact—we know who they are–simply chose to believe a big fat lie. And after the hostility of our local representatives, it is even more apparent that they lack the intellectual capacity and moral foundation to understand theft when it bites them in the tail.

And why do people believe the BIG LIE, but have trouble with the small ones?

It is how evil works.

 

Wyoming Farm Bureau Defeats EPA Wyoming Land Grab (Wind River Reservation)

Wyoming Farm Bureau Defeats EPA Wyoming Land Grab

Feb 22, 2017 | by William Perry Pendley

DENVER, CO.  The Wyoming Farm Bureau today celebrated the 2-1 ruling of a three-judge panel of a Denver-based federal appeals court that struck down an edict from the U.S. Environmental Protection Agency (EPA) that the Northern Arapahoe Tribe and the Eastern Shoshone Tribe—of the Wind River Indian Reservation in Fremont and Hot Springs Counties in west central Wyoming—have jurisdiction over 1.48 million acres of Wyoming.  In early 2014, the group petitioned the U.S. Court of Appeals for the Tenth Circuit contesting the EPA’s December of 2013 decision to grant “Tribe-as-State” status under the federal Clean Air Act.  The Farm Bureau, some of whose members live, work, and own property in and near Riverton, argues that the EPA’s decision ignores more than one hundred years of actions by Congress, Wyoming, the Tribes, and various rulings by a host of federal and state courts including the Supreme Court of the United States.  During arguments in November of 2015 the parties were asked to file supplement briefs on whether the withholding of Clean Air Act funds by the EPA mooted the lawsuit, which the Farm Bureau filed on December 1, 2015.

“We are thrilled with the ruling by the panel that 1.48 million acres of Wyoming are no longer considered ‘Indian country’ and therefore the subject of controversy and conflict over whether the Tribes have jurisdiction over non-Indians and non-reservation lands,” said William Perry Pendley of Mountain States Legal Foundation, which represents the Farm Bureau.

In December 2008, both Tribes sought Tribe-as-State status under §301(d)(2) of the Clean Air Act, which provides an “express congressional delegation” to tribes of the EPA’s authority to regulate air quality on fee lands located within the exterior boundaries of a reservation.  The tribes expended 82 of their 87-page application arguing that they possessed jurisdiction over Riverton.  Because their application ignored a host of federal statutes and federal and state court rulings, in 2009, the State of Wyoming, the Wyoming Farm Bureau, and other entities filed comments opposing the application.

The Reservation, which is shared by the Tribes, was established in 1868.  In 1904, the Tribes signed an agreement with the federal government ceding 1,480,000 acres of land, which were to be opened for sale under the homestead, townsite, coal, and mineral land laws, which was entered into with the United States Indian Inspector in exchange for per capita payments to tribal members and capital improvement projects inside “the diminished reserve” or Reservation.  In 1905, Congress ratified the 1904 agreement.

In 1906, the ceded lands were opened for settlement by a Presidential Proclamation and allotments were sold to non-Indians in an area that today makes up Riverton.  In 1939, some unsold ceded lands were restored to the Reservation, but a significant portion was not.  Riverton is located wholly on lands ceded in the 1904 agreement and never restored to the Tribes.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation 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.

Note:  This case has HUGE implications for our state, federal, and tribal government’s overreach problems in western Montana.  For those of you who might be interested in seeing the briefs and historic documents submitted in this case, reference the State of Wyoming’s Attorney General’s website at this linkScroll about 1/2 way down the page for links to the documents.

Here are a few additional comments from Perry Pendley concerning this issue:

A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit in Denver ruled 2-1 that the EPA had no right to ruled that 1.48 million acres of Wyoming did not belong to Wyoming—my home state—but was instead “Indian country” and subject to the jurisdiction of the two American Indian tribes that reside on the Wind River Indian Reservation in west central Wyoming.

The question before the panel was simple, as Judge Tymkovich who wrote the opinion for the majority, put it:  “This case requires us to determine whether Congress diminished the boundaries of the Wind River Reservation in Wyoming in l905. We find that it did.”  As a result, the Tenth Circuit rejected the arguments of the Obama administration that Congress did NOT reduce the size of the reservation and that the 1.48 million acres remained “Indian country,” even though the tribes had been provided compensation for the land, even though the land was opened for homesteading, even though some of that land was occupied by the town of Riverton (population 10,000), and even though the Wyoming Supreme Court and other courts, including the Supreme Court of the United States in a related case, had upheld the reduction of the reservation.

In reaching its opinion, the panel did what court should do.  It looked at the words Congress used to accomplish its objective:

  • [O]ur task is not to divine why Congress may have chosen certain synonyms over others in this particular Act.  We believe Congress’s use of the word “cede” can only mean one thing—a diminished reservation.  A review of several dictionaries from the turn of the twentieth century confirms that adding the words “sell” or “convey” would not materially change the intent Congress evinced in the 1905 Act.  And in any event, Article II of the 1905 Act includes the word “conveyed”[.]

The panel also ruled that MSLF’s client, the Wyoming Farm Bureau Federation had the right to file its lawsuit (“standing”):

  • We also find the Wyoming Farm Bureau has standing to sue on behalf of its members…..  In this case, some Farm Bureau members own farms within the disputed area and face the costs of complying with a new regulatory regime following the EPA’s decision…. Therefore, we find the Farm Bureau has standing to sue on behalf of its members.

Exactly what kinds of problems did MSLF’s clients face?  Nothing short of the possibility that non-Indians would be sued in tribal courts that, under the Constitution, have no jurisdiction over non-Indians.  And the possibility that those convicted of crimes in Wyoming courts would be set free because of claims that the case should have been tried in tribal court.  I wrote about these problems here and here.

This case had many important elements, including:  (1) the utter lawlessness of the Department of the Interior Solicitor’s opinion (on which the EPA relied), (2) the involvement of an out-of-control EPA, (3) the jurisdictional muddle into which rural westerners were thrown, that is, not knowing whether they (like the Riverton Memorial Hospital) might be hauled into tribal courts, and (4) MSLF standing alone with its client the Wyoming Farm Bureau Federation alongside the State of Wyoming.

Thank you for your support of MSLF’s battle in this hugely important case.  You may renew your support for MSLF’s battles for freedom here.

Best, Perry

William Perry Pendley, Esq.
President
Mountain States Legal Foundation
2596 S. Lewis Way
Lakewood, CO 80227
303-292-2021; FAX 303-292-1980

mountainstateslegal.org