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

 

More Siphoning of State Funds……

© 2017 Concerned Citizens of Western Montana

In our last post, we discussed Representative Greg Hertz’s bill HB375, proposing to fund TRIBALLY CONTROLLED SCHOOLS, which as we noted, is not a state responsibility or obligation.

Today we’d like to focus on yet another bill along the same vein, HB185 introduced by Democrats Shane Morigeau, John Fleming, and Dan Salomon, among others:

“AN ACT ESTABLISHING A GRANT PROGRAM TO REDUCE OR ELIMINATE TUITION COSTS FOR CERTAIN POST SECONDARY PROGRAMS; AUTHORIZING THE BOARD OF  REGENTS TO ADMINISTER THE PROGRAM; PROVIDING PROGRAM REQUIREMENTS INCLUDING STUDENT ELIGIBILITY; PROVIDING AN APPROPRIATION; AND PROVIDING AN EFFECTIVE DATE.”

At the risk of sounding like a broken record, while Lake County struggles to stay financially afloat, and the state of Montana is in the midst of a budget crisis, these local representatives and others are proposing to spend $2 million, make that $1 per year to:

“increase college affordability and attainment for and decrease the amount of college debt incurred by Montana residents who utilize community and tribal colleges and 2-year institutions of the Montana university system.”

Tribal Colleges are tribally-controlled and federally funded, and each reservation in Montana has one.  As stated in our previous article, the Montana Constitution prohibits expenditures to “private corporations not under the control of the state.

Here are some conservative FEDERAL FUNDING figures for tribal colleges over a 9 year period (source usaspending.gov):

$78 million     Blackfeet Community College
$42 million     Crow – Little Big Horn College
$46 million     Fort Belknap – Aaniiih Nakoda College
$47 million     Fort Peck Community College
$36 million     Northern Cheyenne Chief Dull Knife College
$59 million     Rocky Boy Stone Child College
$130 million   Salish and Kootenai College

Folks this stuff is just the tip of the iceberg……..

This information begs the question, does Montana already provide any funds to these colleges, and if so how much annually,  and for what purposes?

HB185 also adds a special notification section to the bill leaving no doubt as to whom the major beneficiaries of the state’s largess will likely be:

“NEW SECTION. Section 5. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations and to the Little Shell Chippewa tribe.”

Did we miss the section in the bill that “required” Secretary of State notification of all of the other 2 year colleges in Montana?  Nope.

The fiscal note for the bill currently shows that the expenditures for this bill would be $8,000,000 over the next four years, however the sponsor of the bill, Shane Morigeau, has submitted a rebuttal to the fiscal note, instead preferring to think that this legislation would have a minimal effect on the state’s general fund ($1) per year.

If that is the case, why is a bill necessary at all?

It doesn’t take a brain surgeon to understand that it is more likely that the goal of minimizing the financial impact while passing the bill is to cement this proposal into law, and in a convoluted way, bind future legislatures to funding it.

Take a look yourself, and then decide.

HB 185
HB 185 Fiscal Note
HB 185 Fiscal Note Rebuttal by Sponsor

To add insult to injury, Section 1 of the New Act specifies:

Short title.  [Sections 1 through 3] may be cited as the “Montana Promise Act”.

While this legislation is wrapped up in “warm and fuzzy”, “cultural”,  feel good language, the only “promise” is that it will drain Montana taxpayers of their hard earned money while promising to be the “act that keeps on giving”, especially if upward college tuition trends continue.

Remember also that once the Tribes get a hold of state money, there is no requirement that they be accountable to the state for the expenditure of state funds.

Note:  This bill passed handily in the house, but it is not too late to stop it in the Senate. Please contact the Senate Education and Cultural Resources Committee to let them know what you think.  Chairman of the committee?  Dan Salomon. 

 

Tribal Siphoning of State Funds?

©2017 Concerned Citizens of Western Montana

This article focuses on House Bill 375, sponsored and introduced by representative Greg Hertz (R), Polson, on 02/02/2017, and is titled:

“AN ACT PROVIDING FUNDING FOR ACCREDITED TRIBALLY CONTROLLED SCHOOLS; REVISING THE QUALITY EDUCATOR PAYMENT, THE INDIAN EDUCATION FOR ALL PAYMENT, AND THE AMERICAN INDIAN ACHIEVEMENT GAP PAYMENT; PROVIDING DEFINITIONS; AMENDING SECTIONS 20-1-101, 20-9-327, 20-9-329, AND 20-9-330, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.”

While Lake County struggles to stay financially afloat, and the state of Montana is in the midst of a budget crisis, Representative Hertz has proposed to increase state funding to TRIBALLY CONTROLLED SCHOOLS.  His bill defines TRIBALLY CONTROLLED SCHOOLS as “an elementary or secondary school ESTABLISHED AND CONTROLLED BY AN INDIAN TRIBE PURSUANT TO THE LAWS OF AN INDIAN TRIBE or federal law.

Contrast the term “Tribally Controlled School” with Article V Section 11 (5) of the Montana Constitution, which declares that: 

No appropriation shall be made for religious, charitable, industrial, educational, or benevolent purposes to any private individual, private association, or private corporation not under the control of the state.

Also contrast it against Article II Section 6 of the Montana Constitution:

AID PROHIBITED TO SECTARIAN SCHOOLS (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

It appears Hertz’s bill calling to fund TRIBALLY CONTROLLED entities and programs contradicts what plainly was intended in the constitution.  The Confederated Salish and Kootenai Tribes are a private “federal” corporation created under the Indian Reorganization Act of 1934.  A copy of their corporate charter can be found at this link.  It is also a “politically” created group or sect.

Plain and simple, Hertz’s bill violates the Montana Constitution.

WHY IS MONTANA FUNDING TRIBAL EDUCATION OR ANY OTHER “INDIAN SPECIFIC” PROGRAM?

This is one of many such bills that have passed in the legislature over the years.   To the best of our knowledge, there is no easy way to accurately determine how much money Montana disperses to the seven Indian Tribes residing within the state, however we do know that as citizens of the state of Montana, all tribal members have the right to participate in the same programs as any other Montanan.

So why the additional need for “tribe specific” funding?  Why are we seeing a trend of state funding for such things as tribal languages, cultural programs, tribal history, education and other social programs, when these are clearly FEDERAL responsibilities?  What is the point of all of this “separate funding”, and is it possible that there is double dipping with both federal and state funds?

When the state spends funds for its many various social programs, including education, it is for the benefit for EVERY CITIZEN, including the 40,000 or so Indians living in Montana. When Montana spends funds on private corporations, in this case tribal corporations, can anyone honestly say that non-tribal members or Montana taxpayers benefit in any significant way?

Over the past nine years, the seven tribes in the state of Montana combined have received an average of nearly $500,000,000 per year from the Federal Government, flowing through a myriad of different tribal corporations.  One half of that amount, or an average of $235,000,000 per year is disbursed to the CSKT through 14 different corporations.  Federal funds disbursed to the CSKT in 2016  included at least $22 million of taxpayer funds designated for a significant number of EDUCATION K-12 and Tribal College programs.

While the numbers are stunning, these figures are far from being “all inclusive”. For example they do not include other sources of revenue to the tribes including any state of Montana expenditures (that are likely significant), private or corporate donations, state partnerships with the tribes on infrastructure and other projects, state revenue sharing contracts with tribes, receipts from Kerr Dam, or Bonneville land purchases for the tribe under the auspices of “habitat restoration and  mitigation”.

Contrast these CSKT figures with the Lake County annual expenditures of $25 million, which is 1/10th of that amount, yet the county serves approximately 28,000 Montanans which includes the 4,000 tribal members residing in the county.

Is it any wonder that Lake County is struggling under the weight of an over bloated tribal government, which includes a cadre of attorneys, grant writers and lobbyists that seemingly work to achieve the sole purpose of eroding local and state governance throughout western Montana?

BACK TO HB375

So with this all said and done, what in the world is Representative Hertz thinking?  As sponsor of this bill, here are a few questions that he should be able to answer:

  • Can Hertz provide a chart showing how much state money was paid to each tribe and the purpose of each category of funding, for each of the last 10 years?
  • Specifically how do state expenditures to tribal corporations benefit the citizens and taxpayers of Montana?
  • Who is accountable to ensure that funds given directly to tribal corporations are in fact spent on the programs they were intended for? Is this information freely available to the public?
  • Has Hertz, or will Hertz be proposing any programs such as Homesteader Education for All, Montana’s Unbiased History, or Property Rights Education for All?
  • Did legislative services flag HB375 as having legal or constitutional issues? If not, why not?
  • Has Hertz read the Montana Constitution and how does he personally reconcile his bill with Article V Section 11 (5) or Article II Section 6?

Contact Hertz through this legislative link and  let him know what you think about his bill.

Let the “rationalizations” begin.

God Bless America

While many of us have longed for a much needed course correction in our state and country, we must never forget that the citizens of this great country are responsible to ensure that our pathway stays rooted in the constitution and the principles upon which our Republic was founded.

May God bless us all with the wisdom, strength and courage necessary for the tremendous amount of work that lies ahead. May our efforts, and those of President Trump first and foremost follow a good and righteous path.

We wonder if Montana’s “leadership” is paying attention. Especially Governor Bullock, Attorney General Tim Fox, the Montana Reserved Water Rights Compact Commission, the Lake County Commissioners, the Montana Judicial System and state legislators who through their sheer ignorance and corruption have worked overtime to try to force an unconstitutional and illegal water compact upon the citizens of Montana.

It won’t take long for Montana to catch up to the rest of the country. We absolutely look forward to the draining of our disgusting, putrid MONTANA SWAMP!

 

 

Compact Sleights of Hand

© 2017 Concerned Citizens of Western Montana

Once again, we would like to shine light on an obvious and notable trend concerning the CSKT water compact and the flawed processes that have brought us to where we are today.

Twenty to thirty years ago Montana loudly pronounced that the demands of the CSKT for ownership and management of all reservation water, and for off reservation water, were non-starters.  State officials said as much in the numerous newspaper articles of the day.

By all appearances, the 1990’s Montana understood its responsibility to protect its citizens from overreach of the federal government with respect to its very important and valuable water resources.  People read these articles and were led to believe that the state was diligently working for a fair and reasonable agreement, and as such, they stepped back and allowed the state to do its job.

Unfortunately with the election of Brian Schweitzer as governor, and unbeknownst to the public, a huge policy shift began to take foothold in the state, and it has grown like cancer.  One part of the shift, was a new and improved 2010 Montana that quietly caved in to the tribes’ “non-negotiable” demands, giving the citizens of western Montana no hope for a reasonable settlement.

While ceding to the US / CSKT demands may have taken a decade or two, it didn’t take long for the state to then turn its attention to rationalizing their capitulation and pulling out all the stops necessary to sell it to the citizens of the state of Montana.  Attorneys and other “experts” were hired for the purpose of creating a false narrative that the state had no choice but to accept the cession of its ownership and sovereignty over water.  After all the CSKT are a Steven’s Treaty tribe and their situation is unlike all others (not).

Most of us were none the wiser.  After all, we thought the 1990’s Montana was still in the drivers seat.

A similar scenario played out with the Flathead Joint Board of Control for the Flathead Irrigation Project. The 1993 Alan Mikkelsen,  executive director of the FJBC wrote this editorial in a local newspaper:

Tribal power grab threatens basic constitutional rights

BY ALAN MIKKELSEN
09/30/1993

The Flathead Indian Reservation is once again embroiled in controversy over the another claim by the Confederated Salish and Kootenai Tribes that they have jurisdiction and regulatory authority over non-tribal member’s activities on privately owned land.  The tribes are now attempting to gain authority to be treated as a state government in order to develop water quality standards and a water quality permitting process on the reservation.

To the uninformed, this may be most logical and understandable.   After all, aren’t we talking about an Indian reservation here?  Surprisingly the answer to that question from the Supreme Court of the United States is no.   On June 14, the Supreme Court issued its latest and most important decision (South Dakota vs. Bourland) in a modern trilogy of cases involving tribal civil jurisdiction over non-members. In the Bourland case, Montana vs. United States (1982) and Brendale vs. Yakima Nation (1989), the court has spoken directly to the issue of whether Indian tribes have any civil jurisdiction over non-Indian activities on private, fee-owned land.

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.

Land use and water use regulation involves the most fundamental principles on which the U.S. Constitution rests and which the Montana Constitution accords even greater protection.   It involves not only the exercise of police power, but also affects property rights, civil rights and political rights.   Some people view these rights and the arguments aimed at protecting them as merely a cloak for what are racist views. This is an easy charge to make, and an extremely difficult charge to disprove, and it is extremely unfair to force people to be put to this test.

It is undoubtedly true that some people do have racist motivations for their opposition to the tribal government’s control. They are few in number.   It is also true, however, that even these odious people enjoy all the protections our laws provide. Among the most basic and fundamental of these protections are those involving property rights, political rights and civil rights.  This is a legal fact applicable to all – no matter what their motivation.   Any implication that opposition to tribal controls is rooted in racism is to be expressly rejected.   These are fundamental principles involved in this debate that are enshrined in our Constitution.   The legitimate opposition to tribal authority over non-member fee land, which includes the majority of reservation residents, will not accept capitulation to the tribes’ incessant and (under the controlling federal law) extreme demands for power over their lives as the proper means to avert a conflict.

The Flathead Reservation is a homeland of the Indian people.   Although many tribal advocates will refuse to acknowledge it, this area is also a homeland for non-Indian people. Whether you were born here or moved here, if you have an emotional, cultural, or ancestral attachment to this area, it is your homeland. That it may be a tragedy to Indian people that this now a shared homeland cannot be debated.   However, the wrongs that were visited upon the Indian people yesterday cannot be corrected by visiting more wrongs on the non-Indian people today.   Until an acknowledgement is made of the need for self-rule for all people, non-Indian as well as Indian, the situation here will only continue to drift into greater conflict and extremism from elements of both sides.

The state of Montana needs to maintain a strong presence on the Flathead Reservation, in order to assure that the rights on non-tribal members to participate in the government that controls their activities be preserved.

This article clearly shows that the 1993 Alan Mikkelsen understood the issues here on the reservation, and the constitutional conflicts they presented.  It was this 1993 Mikkelsen that irrigators believed was negotiating to protect their interests and water rights as a well paid consultant for the Joint Board of Control.

Unfortunately sometime between 1993 and 2012, Mr. Mikkelsen was personally “enlightened” as to the futility of standing up against federal and tribal over reach on the reservation.  (During this period, Mikkelsen had also completed a stint in Washington DC working for Denny Rehberg, former Representative of Montana and the brains behind Farmers and Ranchers for Montana, funded by the tribe, who lobbied aggressively for the compact in 2015 under the guise of being a grassroots entitiy of farmers).  It was this new 2012 Alan Mikkelsen who presented to the Joint Board a water use agreement that significantly reduced water deliveries and proposed that:

… the United States and the FJBC agree to withdraw and cease prosecution or defense of all claims to federal reserved water rights, state‐based claims, permits or exempt water rights for water held in their names in the Montana General Stream Adjudication for use on lands served by the FIIP.

We were at the May of 2012 Joint Board of Control meeting when Mikkelsen unveiled this horrendous agreement (subsequently ruled to be an unconstitutional taking)  and told the board that these things were “non-negotiable” by the tribes and this agreement was “the best deal that irrigators are going to get.”

How sad this situation is for so many living in our valley that placed a tremendous amount of faith in the efforts of one man.  This example demonstrates just how important it is for irrigators and other citizens to be alert, vigilant, and to do their own homework.

For yet unknown reasons this water compact is being pushed by deep pockets, Montana cronyism and a significant amount of corruption and deceit.  We may never know why the state of Montana was willing to sacrifice the rights of its citizens, its most valuable natural resources, and its constitutional mandates concerning water for the sake of an unsound, unconstitutional, and in our opinion, illegal compact.

It is incumbent upon each of us to pay very close attention to the parties that continue to push it, and to call them out for what they are doing.

Let’s not allow our property rights, civil rights and constitutional protections become mere “collateral damage” for the sake of finalizing the “adjudication” of water rights in Montana.

 

Next Steps on the CSKT Compact Vote Case

©2017 Concerned Citizens of Western Montana

Under Montana law, the proper remedy is to declare SB 262 void in its entirety. Marshall v. State ex. rel Cooney 1.999 MT 33 293 Mont. 274 975 P.2d 325 (p. 29 FJBC brief)

We reported on the mixed decision rendered by Judge Manley in the FJBC v. Montana lawsuit in July 2016 regarding the constitutionality of the vote on SB 262, the CSKT Compact.  That mixed decision has been appealed to the Montana Supreme Court, and you can read the opening brief here.

On the one hand, Judge Manley ruled that the legislature’s vote was unconstitutional because of  Compact’s grant of immunity to the state for damages, costs, and attorney’s fees, a clear victory for the FJBC.  On the other hand, he legislated “ruled” that the severance clause in the compact-created Unitary Management Ordinance (UMO, or Law of Administration) allowed him to sever the immunity language and “rule” that the “Compact still stands”.

The FJBC case is narrow for a reason—to address a limited state issue on which there is clear evidence of violation of the  Constitution.  It really had nothing to do with the CSKT but the Tribes’ intervention–designed to muddy the waters–dragged the UMO into the case.

The Tribes’ intervention may have been a strategic error for the Tribes and State as the legal arguments on both sides exposed the unworkable, unlawful UMO where all citizens are deprived of their due process and other rights guaranteed by the constitution.  The Court was forced to note that even if the immunity language was  severed, it would not cure the defect in the Compact.

A helpful analysis contained in the FJBC brief notes the following:

  • The Compact in which the immunity clause is found does not have a severability clause.
  • The Compact creates the Unitary Management Ordinance (UMO), which does not go into effect until after the Congress and Tribe have ratified the Compact.
  • The UMO also grants immunity to the state and its employees but, in contrast to the Compact, has a severability clause which states that within the UMO, clauses found to be unconstitutional could be severed and not effect the UMO.
  • The legislature’s clear intent was to give the state immunity from suit given its refusal to alter the language of the Compact when given an opportunity.

Thus the Compact’s immunity language, which was the major subject of the initial complaint, is not buffered by an immunity clause.  As the brief noted in the beginning of this post, the entire Compact should be ruled void.

Multiple Outcomes Possible

Who would have thought that the lower court would “split the baby” and rule for both sides in what appears to be a contradictory ruling?

What we do know are the facts of the case, the Montana Constitution, and Montana case law on point to this issue of a legislature’s vote.  Perhaps there will be a ruling in the first quarter of 2017.

screen-shot-small-boat-cartoon-sinkingTester’s bill 3013 is dead in the water and the compact, even if the court legislates from the bench, is not the same compact as was “passed” in the legislature. Is it a legitimate compact amenable to consideration by congress? There are serious doubts.

Remember also Tester’s bill adds considerably more damaging provisions to the compact, and another billion to the price tag.  His bill will have to be reintroduced but we’re not sure if it will survive that giant sucking sound of draining the swamp.

Stay tuned.

 

Time for a Divorce

© 2016 Concerned Citizens of Western Montana

With Donald Trump’s upcoming presidency, the people of Montana have been given a golden opportunity for the serious course correction it needs.

One area that could make a huge difference to our future is to petition congress to remove Montana out from under the jurisdiction of the 9th circuit court of appeals and placing it under the 10th district court of appeals instead.

The sad truth is that the 9th Circuit Court has long been bad news for Montana and our water and property rights.  It was this court that gave us the bad decision in the Namen cases during the 70’s and 80’s ruling that the CSKT own the banks and bed of the south half of Flathead Lake, contrary to federal statutes and policy indicating otherwise and contradicting other high court decisions on the same issue.  The 9th circuit court also gave the CSKT “time immemorial” priority date to significant amounts of water on the Flathead Irrigation project for fisheries in the 1980’s.  Leveraging off of that decision, the tribe is now proposing through the water compact to own 100% of the project water, 90% of it for fish and only 10% earmarked for irrigation.  In other words the 9th circuit court of appeals gave the tribe a foot in the door to turn a federal irrigation project that is supposed to be accountable to irrigators, into a fishery that is accountable to the tribes.

The CSKT often uses these bad decisions, repeating out of context sentences and using them to incrementally advance their aggressive agenda to gain jurisdiction and control over non-members and their property using whatever means necessary.  We must never forget that the tribe’s mission statement says: “we will strive to regain control of all lands within our reservation boundaries…”  Keep in mind their definition of their reservation boundaries includes all land, even land that is privately owned.

Unfortunately for Montana, when these important decisions come down from the 9th circuit court, it is difficult to get it heard in the United States Supreme Court.  Petitions for a Writ of Certiorari requesting the Supreme Court to review a lower court’s ruling are denied more often than not. The denial of a Petition for Certiorari by the Supreme Court in a federal case means the decision of the Court of Appeals stands as the final decision.  That is exactly what happened in the cases we’ve mentioned.

9th Circuit Court of Appeals Facts

Did you know that the 9th Circuit Court of Appeals is the most overturned of the Courts of Appeal in the United States?

From Wikipedia:

Headquartered in San Francisco, California, the Ninth Circuit is by far the largest of the thirteen courts of appeals.  In 2010, the population under jurisdiction of this court was 61.7 million people, or 19.74% of the United States Population.  States and territories falling under the 9th Circuit Court include:

Alaska, Arizona, California, Guam, Hawaii, North Mariana Islands, Idaho, Montana, Nevada, Oregon, and Washington

What are the odds that a San Francisco based court would share or advocate for any of the same values as Montanans?

Based on 2010 United States Census figures, the population residing in each circuit is as follows.

Circuit Population Percentage of US population
D.C. Circuit 601,723 0.19
1st Circuit 13,970,816 4.47
2nd Circuit 23,577,940 7.54
3rd Circuit 22,498,612 7.19
4th Circuit 29,788,417 9.52
5th Circuit 32,646,230 10.44
6th Circuit 32,105,616 10.26
7th Circuit 25,001,420 7.99
8th Circuit 20,568,237 6.58
9th Circuit 61,742,908 19.74
10th Circuit 17,020,355 5.44
11th Circuit 33,268,699 10.64

It is this California based 9th circuit court whose just plain bad decisions have eroded the Constitution and diminished the  property rights of many in Montana for the benefit of a few.

So What can we do?

With a Donald Trump presidency and control over the house and senate, now is the time to make sure that action is taken.  We may never get another opportunity to divorce our state from the 9th Circuit Court of Appeals.

Montana Legislators have been asked to draft a resolution to get Montana out of the 9th Circuit Court, and to send that request to Congress.  We ask you to support that effort and when the time comes, to put pressure on our Congressional delegation to do the right thing.

In addition to working with the legislature on this issue, a petition has been started (12/28/2016) to urge Congress to act and get Montana OUT of the 9th Circuit Court of Appeals and into the 10th Circuit Court.

Please sign this petition TODAY and send it to everyone on your email list who lives in Montana.  It can be found at this link:

https://petitions.whitehouse.gov/petition/get-montana-out-9th-circuit-court-and-put-us-under-jurisdiction-10th-circuit-court

Note:  To sign the petition, you must enter your NAME AND EMAIL ADDRESS.  Look carefully because there is a checkbox right below that information that says:  President Obama and the White House may send me emails about this and other issues.  If you’d like to receive email from the white house, leave it checked.  If you prefer to NOT receive email from the White House, you can remove the check mark by clicking on it.

Please sign the petition and pass it along to everyone on your email list.  Let us make sure our voices are heard loud and clear on this issue.

Thanks to all of you for your help.

More Information:  Arizona seeks a divorce from the 9th Circuit Court