Censorship by Contractual Agreement?

©2018 Concerned Citizens of Western Montana

Of Liberty And Tyrrany… | THE WAKING GIANTI am sure that most of us agree with Thomas Jefferson, but what happens if you are silenced due to the actions of others, up to and including self censorship through “political correctness”?

In our neck of the woods, expecting our local media to truthfully report on issues, or to allow honest public discourse in the opinion pages of their “newspapers,” has become the very definition of insanity.

How many local folks have had their letters to the editor blacklisted, or the content of your letters revised because an editor thought it to be “offensive?”

Comments on internet news are also becoming a thing of the past, disabled so that readers don’t know what others think about any given issue.

And yet it seems that the other side of an editorially determined “sensitive” issue gets unfettered access to local opinion pages.

Is this simply a new kind of  ” hear no evil, see no evil” journalism, “agenda and biased driven journalism” or is it more of a “leaving the masses ignorant” editorial philosophy?

Pick your poison.  One is just as repugnant as the other.

CENSORSHIP OF DISSENT

In 2014, we posted an article entitled A Glimpse Into Our Future with a Unitary Management Ordinance.  The post included this video excerpt related to tribal retribution against those who speak out against the CSKT or their agenda:

 

The tribal blacklisting of and retribution against businesses and people who rankle the sensibilities of the tribal elite, or cast doubt on their agenda is well known to those of us living within the exterior boundaries of the reservation.

Rest assured, for as bad as all of that is, individual tribal members often get worse treatment by their government, because it is the price they must pay for membership into the tribe’s special interest corporation and a $1,200 annual per capita payment.  Contractual or implied, it is a condition of membership.

Remember the People’s Voice and the wringer the tribe put them through a few years back?

CENSORSHIP BY VENUE

As to the subject of censorship, while state open meeting laws require certain standards with respect to public participation, it is much easier to stifle public comment in a tribal venue.

And that is exactly what happened at the February 2018 county commissioner meeting in Pablo.  The tribe not only refused to allow any recording of the meeting, they also squelched all public comment.

Aside from the fact that the tribal council should not be part of the county decision making process, their past and current violations of Montana’s open meeting laws dictate that at a minimum, the commissioners not meet at tribal council headquarters.

CENSORSHIP BY SUBVERTING OUR REPRESENTATION

We’ve documented some of the escapades of state legislators and agencies that have become little more than lobbyists for the tribes:

Bruce Tutvedt: CSKT Lobbyist or Legislator?

Anatomy of the CSKT Water Compact

FARM, Grassroots, Astroturf, or Something Else?

How to Subvert House Rules and the Montana Constitution in 40 Minutes

The legislators whose actions have been documented in these articles are an embarrassment to the people they represent, but nonetheless, they have been tasked by the tribe to do much of the heavy legislative lifting for the advancement of a tribal agenda.  It is amazing to see how far a little bit of taxpayer funded tribal money can go.

But let’s not talk about legislators who already drank the kool-aid, and focus instead on elected officials who haven’t taken the tribal advocate leap.

CENSORSHIP BY”AGREEMENT”

We are now seeing the undercurrent of another form of censorship that is far more insidious that many may not be aware of, the notion of censorship of local government  representatives by agreement. 

LAKE COUNTY MONTANA

Faced with a significant shortfall of tax revenue because of the tribe’s takeover of Kerr Dam, our Lake County Commissioners have been looking into many of the issues that brought us to such a dire situation:  Public Law 280, Fee to Trust land conversions, and the Growth Density Map,  and various other important issues.

As you can imagine, none of this sits well with the CSKT tribal government.  Issues such as these are supposed to be ignored by county government, as they have been for decades.

In February 2018, the Lake County Commissioners attended a kinda sorta public meeting in Pablo.  The meeting was intended to be an ambush of county commissioner Gale Decker, and that is exactly what it was.

As a resident of Lake County, it was embarrassing to watch our three commissioners, seated before an “all powerful tribal government”, their backs to the public, being berated for daring to speak out publicly and to the media about serious issues that involve the tribe.

During that meeting one of the commissioners mentioned a proposed 2016 agreement between the tribe and the county that the three current commissioners had previously been unaware of.

In June, we now have some context concerning that agreement.  In a letter to CSKT tribal council members in October 2017, Gale Decker made the following comment:

On a side note, Mr. Rushe did not shy away from advocating for a clause in a failed mediation agreement between CSKT and Lake County in the fall of 2016 that would have taken away the Constitutional first amendment rights of the Commissioners.

The clause read, “The County, and its Commissioners in their official or individual (my emphasis) capacity, will refrain from taking any adverse positions to the Tribes in the media, in any litigation, or for the purpose of influencing any legislative body pertaining to the following….” Rushe then lists the water rights debate, and the NBR (National Bison Range) Transfer draft bill.

Suggestion of such a restriction on any individual’s right to free speech is repugnant.

For the record, Mr. Rusche is an attorney for the CSKT, and the drafter of Jon Tester’s S. 3013.

A copy of the complete letter written by Commissioner Decker can be found here.

Can you imagine the public outcry if this situation were reversed and Lake County attempted to get the CSKT Tribal Council to agree to sit down and shut up about anything?  We can.

COULD OTHER SIMILAR AGREEMENTS EXIST?

It is an interesting thought, but a reasonable person cannot help but wonder if the CSKT have made or attempted to make any other similar agreements, and if so, with whom?

Perhaps with the media in exchange for advertising, or with state agencies and appointed or elected officials in Montana. How about our United States Congressional delegation?  Denny Rehberg went the dark money route, but how about Jon Tester who gladly introduced S.3013, written by tribal attorneys?

But alas, it is more likely that drinking the tribal sovereignty kool-aid makes such agreements unnecessary for the most part.

After all, it is a reservation, and this is how the tribe does things “on the reservation.”

Just ask tribal attorneys Rhonda Swaney, and Ryan Rusche.

NOTE: If anyone has a copy, we would very much like to track down a copy of the proposed “mediation agreement” mentioned by Gale Decker in his memo.

 

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1912 Clairmont v United States

Note:  We are posting this legal opinion thanks to a good friend, who has, and continues to point us to this 1912 decision by the U.S. Supreme Court related specifically to the Flathead Indian Reservation.  It is not a long read, and if you are interested in the issues related to the CSKT Water Compact, you will find it quite interesting and IMPORTANT.  One can’t help but read this decision and wonder if why the state of Montana went “off the reservation” and failed the people of the state of Montana by ceding vast amounts of water both on and off the reservation to the tribe, or why Jon Tester overreached  to benefit one tribal corporation far more than ever should be allowed.  Most importantly, this decision raises serious questions about the state giving the federal government / CSKT ownership of all the water flowing on, under and through what is the diminished former Flathead Indian Reservation. Thanks Mike.

Update:  As Mike points out in the comments below, look past the issue of alcohol and focus on the discussion of “Indian Country” and the surrender of Indian Title as per the Treaty of Hellgate, signed in 1855 and ratified in 1859.

225 U.S. 551 (1912)

CLAIRMONT v. UNITED STATES.

No. 239.  Supreme Court of United States.

Submitted May 1, 1912.    Decided June 10, 1912.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MONTANA.

552*552 Mr. N.W. McConnell and Mr. O.W. McConnell for plaintiff in error.

Mr. Assistant Attorney General Denison, with whom Mr. Louis G. Bissell, Attorney, was on the brief, for the United States.

553*553 MR. JUSTICE HUGHES delivered the opinion of the court.

The plaintiff in error was indicted by the grand jury of the United States for the District of Montana for introducing intoxicating liquor into the Flathead Indian Reservation. It appeared upon the trial in the District Court that he lived on the reservation and at the time of the alleged offense was returning to his home from Missoula on a train of the Northern Pacific Railway Company, intending to leave the train at Ravalli. A special officer of the Interior Department boarded the train at Arlee, and, finding a pint of whisky on the person of the plaintiff in error, at once arrested him and took him back to Missoula. Both Arlee and Ravalli are points within the exterior limits of the reservation, which is crossed by the right of way of the railway company.

The jury rendered a verdict of guilty, whereupon it was urged by motion in arrest of judgment that the court was without jurisdiction. The motion was denied and the defendant was sentenced to imprisonment for sixty 554*554 days and to the payment of a fine of $100. The case comes here on writ of error, the District Judge certifying the question of jurisdiction. The conviction was had under the act of January 30, 1897, c. 109,[1] 29 Stat. 506, which provides:

“That any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever . . . to any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian a ward of the Government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, which term shall include any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be punished by imprisonment for not less than sixty days, and by a fine of not less than one hundred dollars for the first offense and not less than two hundred dollars for each offense thereafter: Provided however, That the person convicted shall be committed until fine and costs are paid.”

We are not here concerned with that portion of the statute which penalizes selling or giving intoxicating liquors to the Indians described or with the authority of Congress to protect the Indian wards of the Nation. 555*555 The indictment charged that the plaintiff in error “did, then and there, wrongfully and unlawfully introduce” a quantity of intoxicating liquor “into the Flathead Indian Reservation, in the State and District of Montana,” the said reservation “being an Indian country.” The offense alleged was the introduction of the liquor into the reservation, and not “attempting to introduce.”

The Flathead Indian Reservation was established by the treaty of July 16, 1855, between the United States and the confederated tribes of the Flathead, Kootenay and Upper Pend d’Oreilles Indians. 12 Stat. 975. It comprised a district now included within the boundaries of the State of Montana. The Enabling Act of 1889, under which the State was formed, required the adoption of an ordinance, irrevocable in the absence of the consent of the United States, providing: “That the people inhabiting” the proposed State “do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.” Act of February 22, 1889, c. 180, 25 Stat. 676, 677.

By the act of July 2, 1864, c. 217, § 2, 13 Stat. 365, 367, Congress granted a right of way through the public lands to the Northern Pacific Railroad Company for the construction of a railroad and telegraph as proposed, “to the extent of two hundred feet in width on each side of said railroad,” including all necessary ground for station buildings, workshops, etc. It was provided that the United States should “extinguish, as rapidly as may be consistent with public policy and the welfare of the said 556*556 Indians, the Indian titles to all lands falling under the operation of this act, and acquired in the donation to the road named in this bill.” On July 5, 1882, the railroad company filed a map of definite location showing its line of railroad across the southwestern part of the Flathead reservation. Thereupon on September 2, 1882, the confederated tribes above mentioned entered into an agreement with the United States by which, after reciting the grant by Congress of the right of way, the treaties with the Indians, and the filing of the map of definite location, the Indians surrendered and relinquished to the United States “all the right, title and interest which they now have under and by virtue of the aforesaid treaty of July sixteenth, eighteen hundred and fifty-five, in and to all that part of the Jocko (or Flathead) Reservation situate in the Territory of Montana and described as follows, namely: A strip of land not exceeding two hundred feet in width, that is to say, one hundred feet on each side of the line laid down on the map of definite location hereinbefore mentioned wherever said line runs through said reservation.” In consideration of the “surrender and relinquishment of lands as aforesaid,” amounting in the aggregate to 1430 acres, the United States agreed to pay to the Indians the sum of $16,000. (Ex. Doc. No. 15, 48th Cong. 1st sess.)

Thus, by the grant of Congress the railroad company obtained the fee in the land constituting the “right of way” (Buttz v. Northern Pacific R.R. Co., 119 U.S. 55, 56, 66; Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 271), and by virtue of the agreement between the United States and the Indians this land was freed from the Indian right of occupancy. As the Government states in its brief: “Beyond question the Indian land title in this strip had been entirely extinguished.”

The question then is whether a person having intoxicating liquor in his possession on a railroad train running 557*557 on this strip can be deemed to have introduced the liquor “into the Indian country” within the meaning of the act of 1897. Was the strip “Indian country” so that the District Court of the United States can be said to have had jurisdiction of the alleged offense?

The act of June 30, 1834, c. 161, 4 Stat. 729, thus defined “the Indian country”:

“That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country.”

This portion of the act of 1834 was not reenacted in the Revised Statutes, though other parts of the statute were, and hence was repealed by § 5596 of the revision. But, as has frequently been stated by this court, the definition may still “be referred to in connection with the provisions of its original context which remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country where it is spoken of in the statutes.” Ex parte Crow Dog, 109 U.S. 556, 561; United States v. LeBris, 121 U.S. 278, 280.

The proper criterion to be applied was considered in Bates v. Clark, 95 U.S. 204, where Mr. Justice Miller, delivering the opinion of the court, said (id., pp. 207, 208): “Notwithstanding the immense changes which have since taken place in the vast region covered by the act of 1834, by the extinguishment of Indian titles, the creation of States and the formation of territorial governments, Congress has not thought it necessary to make any new definition of Indian country. Yet during all this time a large body of laws has been in existence, 558*558 whose operation was confined to the Indian country, whatever that may be. . . .

“The simple criterion is that as to all the lands thus described it was Indian country whenever the Indian title had not been extinguished, and it continued to be Indian country so long as the Indians had title to it, and no longer. As soon as they parted with the title, it ceased to be Indian country, without any further act of Congress, unless by the treaty by which the Indians parted with their title, or by some act of Congress, a different rule was made applicable to the case.”

It must be assumed that, in the act of 1897, Congress used the words “Indian country” in the accepted sense. And this is confirmed by the provision bearing witness to the policy which had been adopted looking to the dissolution of tribal relations and the distribution of tribal property in separate allotments. Thus, the act provides that the term Indian country “shall include any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States.” United States v. Sutton, 215 U.S. 291; Hallowell v. United States, 221 U.S. 317, 323, 324.

That the effect of a cession by the Indians might be qualified by a stipulation in the treaty that the ceded territory, although within the boundaries of a State, should retain its original status of Indian country so far as the introduction into it of intoxicating liquors was concerned was decided in United States v. Forty-three Gallons of Whiskey, &c., 93 U.S. 188; 108 U.S. 491. But, as was pointed out in Bates v. Clark, supra, that decision proceeded upon the hypothesis that “when the Indian title is extinguished it ceases to be Indian country, unless some such reservation takes it out of the rule.” The same principle of decision was recognized in Dick v. 559*559 United States, 208 U.S. 340. There, the plaintiff in error had been convicted of introducing intoxicating liquor into the Nez Perce Indian Reservation within the State of Idaho. The offense was committed, if at all, in the village of Culdesac, which, although within the boundaries of the reservation as established before Idaho was admitted into the Union, was at the time specified in the indictment an organized village of that State. The lands upon which the village was located were part of those ceded to the United States by an agreement with the Indians in which it was stipulated that the ceded lands, as well as those retained, should be subject for the period of twenty-five years to all Federal laws prohibiting the introduction of intoxicants into the Indian country. It was held that this was a valid stipulation based upon the treaty-making power of the United States and upon the power of Congress to regulate commerce with the Indians, and was “not inconsistent, in any substantial sense, with the constitutional principle that a new State comes into the Union upon entire equality with the original States” (p. 359). Upon this ground the judgment of conviction was affirmed.

While the Dick Case was thus found, owing to the stipulation in the agreement, to be within the exception, the court explicitly recognized the rule which governs in the absence of a different provision by treaty or by act of Congress. The court said (p. 352): “If this case depended alone upon the Federal liquor stature forbidding the introduction of intoxicating drinks into the Indian country, we should feel obliged to adjudge that the trial court erred in not directing a verdict for the defendant; for that statute, when enacted, did not intend by the words `Indian country’ to embrace any body of territory in which, at the time, the Indian title had been extinguished, and over which and over the inhabitants of which (as was the case of Culdesac) the jurisdiction 560*560 of the State, for all purposes of government, was full and complete. Bates v. Clark, 95 U.S. 204; Ex parte Crow Dog, 109 U.S. 556, 561.”

In the present case there was no provision, either in the treaty with the Indians, or by act of Congress, which limited the effect of the surrender of the Indian title. We have been referred to certain statements made by the representative of the United States in the course of the negotiations with the Indians which preceded their agreement, but these were of an informal character and cannot be regarded as qualifying the agreement that was actually made. The Indian title or right of occupation was extinguished, without reservation; and the relinquished strip came under the jurisdiction of the then Territory and later under that of the State of Montana. It was not “unappropriated public land,” or land “owned or held by any Indian or Indian tribe.” (Enabling Act, supra.)

To repeat, the plaintiff in error was not charged with “attempting to introduce” the liquor into Indian country, but with the actual introduction. If having the liquor in his possession on the train on this right of way did not constitute such introduction, it is immaterial so far as the charge is concerned whether or not he intended to take it elsewhere. Nor is it important that the plaintiff in error was an Indian. The statute makes it an offense for “any person” to introduce liquor into Indian country.

Our conclusion must be that the right of way had been completely withdrawn from the reservation by the surrender of the Indian title and that in accordance with the repeated rulings of this court it was not Indian country. The District Court therefore had no jurisdiction of the offense charged and the judgment must be reversed.

The judgment is reversed and the cause remanded with directions to quash the indictment and discharge the defendant.

[1] This repealed, so far as it was inconsistent, the act of July 23, 1892, c. 234, 27 Stat. 260, which amended § 2139 of the Revised Statutes.

A PDF copy of this decision can be found at this link.

 

 

 

Part 3 of 3: Why Are Indian Tribes Still Suing Over Ancient Treaties?

Note:  Our thanks to the Citizens Equal Rights Alliance CERA for permission to publish this article.  What follows is the first in a 3 part series that discusses the congressional intent of the Indian Claims Commission toward the final resolution of Indian grievances against the United States, compared to the actual result.  While it was written in 2001, it is just appropriate now as it was 20 years ago, perhaps even more so.  CERA’s website can be found at this link.

50 YEARS PAST THE DEADLINE – Part III of III

Why Are Indian Tribes Still Suing Over Ancient Treaties?

By: Randy V. Thompson, Esq. and Brandon Thompson of Stapleton, Nolan, MacGregor & Thompson, St Paul MN co-authored this article on behalf of Proper Economic Resource Management, Inc.(PERM), a Minnesota non-profit corporation whose mission is the preservation and management of natural resources for all persons.

Whether or not these amounts were adequate will be forever debated. These awards were certainly substantial, however, especially when one considers that much of the $1.3 billion awarded represented additional compensation over the $800 million tribes had originally received for their land. Even though the Commission awarded over a billion dollars to hundreds of tribes, broke new legal ground for Indian claims, and was extended six times as long as originally intended in order to ensure that all tribes got their day in court, the ICCA has been beset by criticism since its inception. It is true that the government, through the Department of Justice, fought Indian claims with vigor. That is the way the American adversarial system of justice works. The plaintiffs (Indian tribes) had attorneys advocating for them. Indian tribes did not get everything that they wanted. If all the damages that the Indian tribes claimed would have been granted, they would have amounted to over $14 billion, or one-third of the federal budget at the time of the petitions.

The bottom line is that American Indian tribes got their “day in court” and the tribes succeeded in winning awards in the majority of claims. The Indian Claims Commission Act was designed to create an atmosphere in which the negative actions of the past could be rectified. The passage of the ICCA was a remarkable development in a process designed to hear all claims, and then forever close the door on that chapter of history. Even the tribes themselves, for the most part, agree that they received a fair hearing. As the Commission itself wrote at its conclusion in 1978:

The last question that needs an answer is did the Indians gain their “day in court”? The answer is yes. The Commission was a court, complete with appelate [sic] review. And it was unique among courts in its jurisdiction over “moral claims” and having no statute of limitations except the requirement that the claims must have accrued prior to [August 13 of 1946]. The tribes, represented by some of the best legal talent in the country, litigated more than 500 claims and won awards on over 60 percent of them.

A Final Resolution

When cultures collide, as they have for centuries, problems will inevitably result. Sometimes the resolution of these problems takes on a military form – one culture becomes the conqueror, and the other the conquered. Sometimes the dominant culture overwhelms and assimilates or eliminates its less powerful rival. Words like “fairness” and “just compensation” rarely are addressed in these situations. As historian Imre Sutton points out, “recognition of the right of an indigenous people to sue a government over the misdeeds of its predecessors is a consideration that few conquerors have ever accorded a subjugated people.” Instead, the conquered culture is swallowed by the conqueror. Certainly, it would not have been difficult for the United States government to allow the Indian cultures to go this same route. From the infancy of the American republic, however, the government decided to deal with the collision of cultures through treaty making, Congressional action and, in 1946, judicial intervention.

That judicial intervention was the creation of the Indian Claims Commission, which provided a unique judicial forum for what are traditionally military or political issues – one of the few instances in which a “subjugated” people were allowed to sue their “conquerors.” Congress waived the statute of limitations, allowed for the consideration of moral claims, and gave the Commission as much time as it needed in order to fully consider the claims. The trade-off for the tribes, however, was that they had five years during which to file their claims. Congress made it quite clear that “all claims arising before 1946 must be files within five years of the date of the Act. Such claims that were not files would be barred.”

Ever since the Indian Claims Commission ended in 1978, attorneys on behalf of Indian tribes have sought new ways to file lawsuits over old claims to circumvent the closure intended by Congress in passing the ICCA. For example, because the Act bars all claims against the United States Government, tribes have brought suits against states and even private citizens for claims over the taking of land, trespass, and loss of hunting and fishing rights. Because these claims invariably involve, at their heart, actions or wrongs by the United States, these claims are also barred by the Act. Indeed, tribes often asserted these very same claims before the Commission, but whether filed or not, if the claim existed before August 13, 1946, it is forever barred.

The Act was unique because it created both a statute of limitations of five years to file claims by August 13, 1951, and a prohibition or jurisdictional bar to the courts ever hearing the tribal lawsuit.

[N]o claim existing before such date but not presented within such period may thereafter be submitted to any court or administrative agency for consideration…

Some courts have applied the law as written and dismissed these lawsuits. Other courts have ignored or forgotten the Act. In this 21st century, fifty years after the statute of limitations expired, courts need to remember and respect the 20th century’s unique judicial process to hear and forever decide all tribal claims originating from the 18th, 19th and early 20th centuries.

There are simply no legal issues today as to whether the tribes were “fully compensated,” or even whether the federal government should have paid tribes interest on the money they held in trust, or that land should have been valued higher, or that more compensation should be given for other losses. Though these are all important questions, they are once again political questions. Congress defined the role of the special commission to decide American Indian claims and further judicial intervention has been foreclosed. To day, the doors of the courthouse are simply closed to claims that arose between 1776 and 1946. The Indian Claims Commission Act was embraced by tribes, by the government, and by the public because it was a way to adjudicate with finality any and all claims between the government and the Indian tribes. It is time that its purpose, an end to costly and divisive lawsuits, is finally realized.

1946 Indian Claims Commission Act
1978 Amendment to Indian Claims Commission Act

Why Are Indian Tribes Still Suing Over Ancient Treaties?

Part 1 of 3
Part 2 of 3

Part 2 of 3: Why Are Indian Tribes Still Suing Over Ancient Treaties?

Note:  Our thanks to the Citizens Equal Rights Alliance CERA for permission to publish this article.  What follows is the first in a 3 part series that discusses the congressional intent of the Indian Claims Commission toward the final resolution of Indian grievances against the United States, compared to the actual result.  While it was written about 2001, it is just appropriate now as it was 20 years ago, perhaps even more so.  CERA’s website can be found at this link.

50 YEARS PAST THE DEADLINE – Part II of III

Why Are Indian Tribes Still Suing Over Ancient Treaties?

By: Randy V. Thompson, Esq. and Brandon Thompson of Stapleton, Nolan, MacGregor & Thompson, St Paul MN co-authored this article on behalf of Proper Economic Resource Management, Inc. (PERM), a Minnesota non-profit corporation whose mission is the preservation and management of natural resources for all persons.

Tribal attorneys filed claims demanding compensation for every wrong they could think of, realizing that Congress had barred all claims after the five year period.

The period during which tribes were permitted to file their claims saw a wide and interesting variety of petitions. Of course, the ICCA could not have been considered a success if tribes were unaware of its existence or unable to file claims. This was not a problem, however, as all 176 federally recognized Indian tribes were notified of the Commission and its purpose shortly after its inception in 1946 and 370 different petitions were filed during the first five years of the Commission’s existence. Indeed, nearly every existing tribe in the nation filed claims under the ICCA. The tribes were ably represented by very accomplished lawyers, many of whom spent the majority of their professional careers trying cases before the Commission. These attorneys were by and large successful in obtaining awards for their clients – at least as successful, if not more so, as any trial attorney could hope to be as the Taos, wanted to have sacred land returned to them. This and similar claims proved difficult to grant – after all, much of the land that tribes had lost or sold was now in the hands of private individuals, people who had nothing to do with the original transactions. The Commission recognized that the return of land would only create an entirely new group of people that would be wronged, necessitating more lawsuits, not a closure of these claims. Due to these concerns, the Commission decided early on that monetary awards were highly preferable to the return of land. Though there were rare cases, such as with the Taos, in which the sacred land was still held by the government and thus could be returned, the Commission was understandably reluctant to grant such demands and awarded money instead.

While a few tribes sought the return of land, other tribes wanted to have the government held accountable for the way tribal money was spent. More so than others, these petitions were frequently successful. The relationship between the government and the American Indians often involved the government acting as a trustee for the tribes. As trustee, the Department of the Interior and later the Bureau of Indian Affairs were in charge of overseeing and, in many cases, designing programs on reservations. Earlier courts had agreed that the government needed to account for any expenditures, and that the expenditures had to fulfill the congressional purpose of acting as a trustee for the tribes. The Commission even ordered the government’s General Accounting Office to prepare reports listing transactions that involved any Indian funds for a period of almost an entire century. But the cases brought before the Commission went further. The attorneys for the tribes insisted not only that the government must account for all expended funds, but also that they must pay interest on any funds that were not spent. In 1970, the Commission heard the claim of the Mescalero Apaches and the Te-Moak Bands of Western Shoshone on this issue.

This question of paying interest to Indian tribes on money that was held in trust is one of the most complicated the Commission faced. The government had generated hundreds of millions of dollars for tribes over the years by overseeing the usage by non-Indians of Indian land. This money was deposited in a trust account, and was then used to fund various Indian programs. The United States Government asserted that no interest was due on the funds, since the money was constantly being spent for the benefit of the tribes. Tribal attorneys countered this by pointing to a statute, passed over a century earlier in 1841, that required funds held in trust by the United States to be invested in bonds bearing at least five percent interest. Although the statute had not mentioned any funds belonging to the tribes, the Commission again sided with the Indian tribes.

Then, in an even more radical step, the Commission awarded the tribes the interest not at a simple interest rate, but at a compound rate. This was a huge difference, due to the time that had elapsed between the wrong and the Commission’s decision. At simple interest, what is typically awarded in such cases, $1 million dollars would have turned into $5 million after eighty years. The compound interest that the Commission awarded, however, would have turned it into 10 times that much. The Department of Justice, who represented the government before the Commission, appealed the case to the Court of Claims. The Court of Claims reversed the decision, determining that the tribes were not entitled to interest, a decision that has been hotly contested by advocates of increased tribal awards.

Most of the cases brought before the Commission did not deal with the return of land or accounting issues, however. By far the most prevalent of all cases were those dealing with compensation for taken aboriginal lands. Before the arrival of Europeans, the concept of owning land was foreign to most American Indians. As Tecumseh put it, “Sell a country! Why not sell the air, the clouds and the great sea, as well as the earth? Did not the Great Spirit make them all for the use of his children?” Indian tribes did not own the land in the American or European sense, because the land could not be owned.

When the ICCA became law, however, Indian tribes understandably demanded that they be fully compensated for any land that was ‘taken’ from them. Determining what land could be considered as belonging to tribes was an extremely complicated process. Many tribes had not consistently remained in a single area, making it impossible to draw distinct lines around an inhabited land. Furthermore, many tribes had been dislocated over the previous centuries by the settlement patterns of whites. The Commission had to balance accounts from different anthropological experts, determining the extent to which land had been used by a tribe in order to decide whether they had gained ownership over periods of time. The Commission was very lenient with tribes on this issue, requiring little proof linking the tribes to the land they claimed. For example, the Commission in 1957 determined that the Pawnee tribe had aboriginal title to 23 million acres of land in Nebraska and Kansas, despite the fact that the tribe’s own expert witness admitted that number was arbitrary and that many of the 23 million acres were actually “common hunting ground among several tribes.” This sort of limited information was enough, however, for many tribes to convince the Commissioners that they deserved compensation for the loss of ‘their’ land.

Once the Commission had determined that a tribe held title to land that had been taken from them, the only thing that remained was for damages to be awarded. In order to do so, the value of the land needed to be determined. This was often just as difficult, however, as determining the ownership of Indian land. As Edgar Witt, the first Chief Commissioner, remarked to Congress, “it is very difficult to determine what these lands were worth in 1814 or in 1865 before they were really occupied by white citizens of the United States.” Should the Commission value the land at what it would be worth with improvements, as the Indians wanted? Or should the land be valued at the use the tribes had for the land, as the Department of Justice wanted? The Commission always chose a number somewhere in between. Tribes seldom recovered all they demanded, which even included claims that they should be compensated for the ‘trespass’ of miners on their property or the loss of their hunting and fishing rights, in addition to the value of the land for its highest and best use. The Commissioners rejected this approach, finding that payment for highest and best use included compensation for lesser included rights like hunting and fishing privileges. At the same time, tribes always received more than the government’s valuation of the land. Overall, the Commission awarded damages in 341 cases, or over 62% of the claims that were adjudicated. At an average of nearly $2.4 million per case, the Indian Claims Commission awarded about $1.3 billion during its 32-year life.

1946 Indian Claims Commission Act
1978 Amendment to Indian Claims Commission Act

Why Are Indian Tribes Still Suing Over Ancient Treaties?

Part 1 of 3
Part 3 of 3

Part 1 of 3: Why Are Indian Tribes Still Suing Over Ancient Treaties?

Note:  Our thanks to the Citizens Equal Rights Alliance CERA for permission to publish this article.  What follows is the first in a 3 part series that discusses the congressional intent of the Indian Claims Commission toward the final resolution of Indian grievances against the United States, compared to the actual result.  While it was written about 2001, it is just appropriate now as it was 20 years ago, perhaps even more so.  CERA’s website can be found at this link.

50 Years Past the Deadline – Part I of III

Why Are Indian Tribes Still Suing Over Ancient Treaties?

By: Randy V. Thompson, Esq. and Brandon Thompson of Stapleton, Nolan,  MacGregor & Thompson, St Paul MN co-authored this article on behalf of Proper Economic Resource Management, Inc. (PERM), a Minnesota non-profit corporation whose mission is the preservation and management of natural resources for all persons.

Indian Claims Commission – As Congress itself pointed out, the purpose of the Act was to “bring this practice to an end and to settle once and for all every claim (Indian tribes) could possibly have under the categories set forth in the law.

A Goal Unrealized

This past August 13th marked the 50th anniversary of the deadline set by Congress for Indian tribes to sue the United States for grievances arising prior to 1946. Nevertheless, Indian tribes continue to file claims for loss of their treaty rights, loss of land, and other claimed injustices. The special law that allowed Indian tribes to file all claims and then closed the chapter on this part of America’s history is now largely forgotten by the courts and the public.

On August 13th, 1946, President Harry S. Truman signed into law the Indian Claims Commission Act.  Perhaps one of the most unique tools for judicial intervention in history, this Act created a special judicial body before which American Indian tribes could file claims of all kinds against the United States government. Any claim that any Indian tribe had against the United States, extending back to the American Revolution, could be brought before the Commission. In order to be valid, however, the claims had to be brought within five years of the passage of the Act. Any claims not brought before August 13th, 1951 would be forever barred by the statute. Despite the passage of the deadline, claims that arose from events prior to 1946 continue to be brought by Indian tribes. Congress passed the ICCA in order to allow Indian tribes the opportunity to “have their day in court,” but that day has long since passed. The important goal of the Indian Claims Commission has been largely forgotten or ignored, as courts persist in allowing tribal suits. As Congress itself pointed out, the purpose of the Act was to “bring this practice to an end and to settle once and for all every claim [Indian tribes] could possibly have under the categories set forth in the law.” Today, a half-century later, the Act’s purpose still stands unrealized.

The Largest Real Estate Transaction in History

In order to fully understand the ICCA, an examination of the shifting relationship between the United States and the American Indian tribes should first be conducted. Even before the Revolution, Indians were under pressure to allow settlers to purchase tracts of land tribes had been using, and at times land was taken from the Indians by force. Back in the eighteenth century, however, huge amounts of available land usually allowed settlers and natives to coexist in relative peace.  As the years passed, and the United States continued to expand, Congress realized that this cohabitation would not be able to last forever. The United States made treaties with tribes, at first affording them treatment of a somewhat similar nature to that given European nations. This soon gave way to the “removal” policy of President Andrew Jackson, which resulted in Indians from the Eastern states being “removed” to west of the Mississippi River. Rapid settlement in the West, fueled by both the railroads and the California gold rush, put an end to removal, however, and the government began to purchase land from the tribes and settle them on reservations.  Tribes were eventually concentrated on land designated as “Indian Territory,” (now Oklahoma) or moved to reservations on or near the land where they had once lived.

By the 1870s, nearly all tribal land had been acquired from the tribes, with the American government turning a blind eye to many injustices and actively assisting in some of the Indian’s oppression. In 1871, Congress ended treaty making, stating that tribes would no longer be recognized as independent nations or powers. Without a doubt, the shifting policies of the federal government played the primary role in the transfer, with varying degrees of consent, of nearly all tribal land, and in the degradation and even destruction of American Indian culture and way of life. As President Harry S. Truman pointed out, the United States had been dealing with Indian land claims since the country’s inception:

“Instead of confiscating Indian lands, we have purchased from the tribes that once owned this continent more than 90% of our public domain, paying them approximately 800 million dollars in the process. It would be a miracle if in the course of these dealings – the largest real estate transaction in history – we had not made some mistakes and occasionally failed to live up to the precise terms of our treaties and agreements with some 200 tribes. But we stand ready to submit all such controversies to the judgment of impartial tribunals. We stand ready to correct any mistakes we have made.”

Adjudication Of All Tribal Claims

As Truman spoke those words, he was preparing to pen his signature on the Indian Claims Commission Act, signing it into law. The federal government, along with most other Americans, realized that wrongs had been committed in dealings with the Indian people. Until after World War II, however, few attempts were made to right the wrongs that had been done. What had happened between the United States and Indians were considered political, even military, matters over which the courts had no jurisdiction. As a result, tribes could not sue in court for damages, and Congress had to pass special acts for each claim in order to allow courts to hear cases or award any compensation to Indian tribes. This system was extremely complicated and time-consuming, which made it difficult for many tribes to successfully receive compensation. This was unacceptable to everyone involved with the issue and a better solution was sought. During the mid-1930s, the idea of allowing Indian tribes to recover for past wrongs in a specially designed body was put forth by John Collier, then Commissioner of Indian Affairs. It took a decade before Congress was able to agree on a bill that would garner enough support to pass both houses and be signed into law, but the Indian Claims Commission Act was finalized on August 13th, 1946.

Both the federal government and Indian tribes welcomed the creation of the Commission, realizing that it would be a means by which to decide all claims outstanding. The tribes embraced the Commission because it gave them the right to file all claims and gave much more latitude than the special jurisdictional acts, while the United States government appreciated the Commission as a way to allow all cases to be heard, decided and forever closed by a single judicial body. It was agreed that the Indian Claims Commission would be a positive development in the relationship between the tribes and the government.

The logistics of the Commission were a bit complex, since never before had such sweeping resolution of Indian claims been attempted. Though the Commissioners were required to be lawyers, typical legal concepts were not always applicable in these types of cases. For example, in most legal disputes, a statute of limitations forces claims to be brought within a certain time of the wrong being committed. American Indian claims, however, had been repeatedly thwarted by government action. In order to be fair, any claims originating after 1776 were heard by the Commission, regardless of how long they had been pending.

The cases brought before the Commission also differed from typical legal disputes in the types of arguments that could be made. Generally, lawsuits must be based on purely legalistic principles, but Congress gave the Commission authority to also hear claims that were moral in nature. Therefore, tribes could bring cases claiming that the federal government had coerced them into signing treaties, or misrepresented agreements, or acted in other ways that could be characterized as violating notions of “fair and honorable dealings that are not recognized by any existing rule of law or equity.”

Of equal importance was Congress’ understanding that no one should be allowed to litigate a claim forever. In return for the elimination of any statute of limitations on claims filed under the Act, tribes understood that the ICCA would provide complete, final closure to their complaints. If a claim existed by an Indian tribe prior to passage of the Act, that claim was forever barred if not filed by August 13, 1951. As long as the claim was filed before that date, however, virtually any interaction between the government and Indian tribes was subject to question before the Indian Claims Commission. In this way Congress “provide[d] for a final adjudication of all tribal claims.”

Their Day In Court

Though the Commission was created to deal with the difficult questions arising from nearly 200 years of shifting federal policies and conflicting relationships, no one was quite sure how to go about answering the questions that had arisen.  In order to deal with the uncertainties that lay ahead, Congress gave the commissioners only general guidelines, allowing them to set their own standards for dealing with claims.  These individuals came from different backgrounds, different political parties, and different areas of the country. They had a common understanding of the place of the legal world, however, and this allowed them to gradually shape the Commission into a viable judicial body. The commissioners heard evidence from both the tribes and the government, determined which side had the stronger case, and passed judgment. In short, the Indian Claims Commission provided a prolific and effective forum for Indian tribes to have their “day in court.”

1946 Indian Claims Commission Act
1978 Amendment to Indian Claims Commission Act

Why Are Indian Tribes Still Suing Over Ancient Treaties?

Part 2 of 3
Part 3 of 3

A $2.4 Billion Dollar Distraction?

© 2018 Concerned Citizens of Western Montana

In 2013, we asked if the Irrigator Water Use Agreement in the water compact was a Red Herring, used to get irrigators fighting for their water while ignoring the dangers of the water compact in its entirety.

Five years later, we know so much more than we did then, including the contents of the Federal Water Compact Settlement bill S.3013 designed by and for the CSKT to gift to themselves so much more than all of the irrigator’s water.  Heck that was just a drop in the bucket.

It would seem that the latest distraction is the $2.4 billion dollars of settlement money included in S.3013.  It equates to a whopping $467,000  per tribal member, but with the stipulation that “No portion of the Fund shall be distributed on a per capita basis to any member of the Tribes.” 

While the money itself is an egregious pilfering of the federal treasury, the language in this bill literally attempts to give away the farms:

The Water Compact (neatly inserted into S.3013) provides for:

  • The federalization / tribalization of most if not all of the water, both on and off the reservation in western Montana
  • Montana’s relinquishment of its constitutionally mandated jurisdiction over every drop of water within reservation boundaries to a tribally controlled board that will be unaccountable to the state, or the federal government, and immune from suit.
  • Tribal ownership of 100% of irrigation project water and reducing water deliveries to irrigators by 40-70%.  It literally turns largest irrigation project in Montana into a fish farm allocating 11% of project water for irrigation, 89% for fish.

Wrapped around the water compact package, is the Jon Tester federal “settlement”, heaping on even more goodies:

  • $2.4 billion in settlement funds “earmarked” for various purposes.
  • Tribal ownership and complete control over the Flathead Irrigation Project despite the fact that 90% of the lands it serves are privately owned
  • The ability to build massive new Bureau of Reclamation dam infrastructure on tribal lands along the Flathead River, free of charge to the CSKT Inc.

What began as an exercise to summarize what the Tester bill proposes to spend the $2.4 billion on, ended with the realization that words really do matter, and it is the language of the bill itself that you can see where the real agenda is hidden.

In other words, while the $2.4 billion dollars in and of itself is astounding, it pales in comparison to the value of the water resources and the “non-monetary settlement” infrastructure assets that Jon Tester proposes to award to the Confederated Salish and Kootenai Tribes under the pretense of a “federal reserved water rights settlement.”

(A recap of the monetary and non-monetoary portions of the settlement can be found at this link):  S3013 CSKT Settlement Summary

The water compact was merely a means to an end:  the federalization of our clean abundant water, and giving one tribe the monetary and infrastructure assets necessary to achieve their stated goal of restoring all lands on the reservation to tribal ownership:

By sponsoring and introducing a bill that provides for such massive federal and tribal overreach,  Jon Tester makes it clear that he has chosen to represent a more complete federalization of western Montana through the advancement of the agenda of the CSKT Special Interest and federally chartered Tribal Corporation.  He has not represented the interests of western Montana or the rest of the state.  Instead he chose to represent the federal government and the thriving Montana Swamp.

It’s unfortunate that Montana’s “leadership” gave the tribes and federal government the water compact vehicle necessary to extort vast riches from the federal treasury to the detriment of so many, including the tribe’s own membership.

The roadmap has been carefully laid out and it is being revealed, one document, one bill, one lawsuit at a time.

We would be remiss if we didn’t mention that if this bad water compact is ever ratified by Congress, all of the tribe’s other claims, including the 10,000 claims filed over 2/3 of the state of Montana and other related lawsuits will be dismissed “without prejudice.”  No doubt this will be the springboard for generations of more litigation by what will by then be a very wealthy tribal corporation entity that trumps all else.

Page 62 of the compact dated 01/12/2015 says:

“the United States, the Tribes, and the State shall execute and file joint motions pursuant to Rule 41(a), Fed.R.Civ.P., to dismiss without prejudice any and all claims of the Tribes, Tribal members, and Allottees and any and all claims made by the United States for the benefit of the Tribes, Tribal members, and Allottees in United States v. Abell, No. CIV-79-33-M (filed April 5, 1979). The case may only be resumed if either the State or the Tribes exercise the rights each holds under Article VII.A;”

What a joke.  This compact has been bad news from the start, and is a final settlement of nothing.

In its wake will be a federal special interest tribal corporation flush with federal taxpayer money, the ruin of our agricultural economy, and a cloud forever hanging over the water and property rights of 2/3 of the state of Montana.

 

What Goes Around……(Update)

Note:  this article was originally posted on May 17th.  As of last week, 06/21/18. S&K paid the back property taxes mentioned in this article to Lake County, but did so under protest.

© 2018 Concerned Citizens of Western Montana

……. might just be starting to come around.

Just this week the Montana Department of Revenue sent the Confederated Salish and Kootenai Tribes a $172,000 tax bill for 10 years of back taxes owed on the S&K Technology property located on Highway 93 in St. Ignatius, Montana.  The tribe now has 30 days to pay their bill.

This action is the result of many months of research and effort by Lake County to review property holdings of the CSKT that are exempt from the property tax rolls.

While Montana Statutes  (15-6-201) provide for property tax exemptions related to some tribal properties, this one should never have been classified as exempt by the Montana Department of Revenue:

Governmental, Charitable, And Educational Categories — Exempt Property

“…..federally recognized Indian tribes in the state if the property is located entirely within the exterior boundaries of the reservation of the tribe that owns the property and the property is used exclusively by the tribe for essential government services. Essential government services are tribal government administration, fire, police, public health, education, recreation, sewer, water, pollution control, public transit, and public parks and recreational facilities……”

The statute related to Tribal Property tax exemptions go on to say:

“the property subject to exemption may not be:

…..operated for gain or profit; held under contract to operate, lease, or sell by a taxable individual;  used or possessed exclusively by a taxable individual or entity; or held by a tribal corporation except for educational purposes…..”

It seems that Montana statutes DO NOT provide for a property tax exemption of the S & K Technology property, and hence the action of mailing a tax bill to the tribes.

In 2003 the CSKT purchased this property and it was placed in exempt status by the Montana Department of Revenue at the time.

So with this recent turn of events, a reasonable person might want to ask a few questions:

  • This property was in exempt status for 15 years.  Why did the Montana Department of Revenue only bill them for 10 years of back taxes and not 15?
  • How many other similar CSKT owned properties in Lake County have been “exempted” from tax and how much is owed on them?
  • In 1984 the CSKT promised by tribal resolution to pay the taxes on Kerr Dam, however reneged on that promise AFTER their acquisition of the dam in 2015. Will Lake County be able to recover back taxes on Kerr Dam too?
  • How did these properties receive an exemption in the first place? Is there a flaw in the Montana Department of Revenue procedures that allowed this to happen?
  • Are there similar issues related to CSKT owned properties in Sanders, Flathead and Missoula counties?
  • Will all of these counties take the steps necessary for reimbursement of any back taxes and to ensure this problem cannot rear its ugly head on these properties and / or others in the future?
  • Could this be the tip of a big fat property tax iceberg?

This is very good news for the people living in Lake County who are aware of the never ending stream of tribal property acquisitions and wondering about its implications to our own property taxes and negative consequences to local county governance.

We certainly hope that this shines a massive amount of sunshine on the impact of these land acquisitions and the way at least some of them have been treated by the state causing financial harm to local governance and the taxpayers footing the bills.

The property tax implications of this one issue alone could be astounding.

The greatest of thanks to our Lake County Commissioners and their staff who  successfully pushed this issue toward the issuance of a long overdue tax bill.

The ball is now in the tribe’s  court.

Will they choose to do the right thing and pay the bill?

We’ll be sure to let you know.

The Epitome of Disrespect

© 2018 Concerned Citizens of Western Montana

It’s hard to believe it has been nearly four years since we said goodbye to our dear friend and fellow water warrior Lloyd Ingraham.  There is no doubt by those of us who knew him, that his legacy will be his efforts to increase awareness of the aggressive agenda of tribal corporations, and to thwart and rectify the impacts of a failed federal Indian policy on the people of western Montana.

A wonderful blustery old attorney with a twinkle in his eye, Lloyd was not one for political correctness.  He said exactly what he thought, including telling then candidate for Lake County Sheriff Don Bell in very colorful language, why he could not vote for anyone who held dear to the vestiges of membership in a tribal corporation.

Lloyd knew that if he were to be elected, Mr. Bell would be responsible to uphold laws that as a tribal member he is not held accountable to.  How can someone who chooses by their blood quantum to belong to an entity that constantly strives to be exempt from the laws and constitution of the state of Montana, swear an oath to uphold and protect them?

Lloyd also was involved in several actions to defeat the CSKT water compact, a so-called “settlement” that he knew would bring uncertainty, division and further erode local governance and the rule of law in our community.

His memorial service was a great tribute to a man of courage and honor.  He will always stand tall to those of us who worked with him and loved him because of his character and selfless desire to solve the cancerous problems that both Montana and the federal government have allowed to fester for more than 100 years.

Sadly this is where it seems to end, at least for those who approved allowing the campaign signs of these two particular individuals (Russ Fagg and Don Bell) to be displayed in front of Lloyd’s old law office in Ronan.

Shame on them.  It this isn’t the epitome of disrespect to a great man,  we’re not sure what is.

Try as they might, they will never be able to rewrite history, nor will they erase the legacy of a great and selfless man.

Rest in peace dear Lloyd with the knowledge that the battle you fought is still being waged, and each day more and more people are awakened to the knowledge that something is horribly wrong in our country, our state, and in our community.

Is it something in the water?

 

 

 

The Art of the Scam

© 2018 Concerned Citizens of Western Montana

You’ve heard about Donald Trump’s Art of the Deal, and that strategy is turning out to be good news because it is helping to eliminate lopsided federal trade deals and other international agreements that have gutted manufacturing industries and sent our jobs to other countries while hanging average citizens out to dry.

But here in the Montana swamp it’s business as usual.  Western Montana is instead on the losing end of something we call  the Art of the (Environmental Mitigation) Scam.

In February our Lake County Commissioners met with the CSKT Tribal Council in Pablo, Montana (another story for another day).  Prior to the “commissioner grilling” that took place at that meeting, there was an agenda item related to the possibility that fish populations may have been negatively impacted by the Smurfit Stone superfund site in Frenchtown.  Two CSKT attorneys gave a presentation to the council concerning their efforts thus far to lay the foundation for what could very well be the tribe’s next mitigation extortion scam.

Over the years the CSKT have fine tuned their ability to bilk whatever financial benefit they can through mitigation “settlements” with ARCO, Bonneville Power and others. A few examples:

In 1991, the Fisheries Mitigation Plan for Losses Attributable to the Construction and Operation of Hungry Horse Dam (Mitigation Plan) was prepared by MT FWP and CSKT.

In 1998 Atlantic Richfield (ARCO) agreed to pay CSKT $18.3 M to restore, replace, or acquire equivalent of Tribal treaty- protected resources injured by release of hazardous substances in Clark Fork River by mining in Butte, Anaconda. CSKT agreed to spend $6.4 M in wetlands restoration, and $1.5 M to restore bull trout populations and habitat. Balance compensation for damage from mining.

In 2005, the Bonneville Power Administration and the Confederated Salish-Kootenai Tribes reached an agreement that provides the tribes with $3.49 million for conservation land purchases to mitigate for damages caused by construction of Hungry Horse Dam.  Visit this link to see the Bonneville Power Administration (BPA) announcements for CSKT and other tribal “land acquisitions” as part of this program.

So it would seem that after litigation (wink wink), these organizations ultimately end up “settling” the case by agreeing to use their deep pockets to purchase lands along “waterways” throughout western Montana for the ownership and management of the CSKT corporation.  Note, that these payments do not benefit individual tribal members, but result instead in the enrichment, empowerment and further aggressive overreach of the CSKT Incorporated against their own members and others.

These land acquisitions serve to diminish the local property tax base causing further erosion of local government services to the community.

Adding insult to injury CSKT corporation attorneys have become quite adept at never letting any good opportunity go to waste.  They are constantly on the look out for ways to increase tribal jurisdiction over non-Indian lands both on and off the reservation through litigation, or advancing bad legislation to uninformed legislators.  And they have been quite successful.

And now it appears the tribe’s “environmental legacy” will be continued with yet one more shakedown to acquire whatever lands or monies they will be able to squeeze out of the Smurfit issue.

Ownership of the lands along waterways is only part of the picture

Unfortunately for Montana securing lands along the waterways throughout western Montana is not the endgame, it is simply just the beginning.  Tribal “ownership” of all of this land courtesy of the federal government is also used to leverage additional funds to “manage” the lands and waterways they “control or govern”.

The CSKT tribal council minutes demonstrate that they have figured out how to use their environmental “stewardship” of these lands to garner an even larger opportunity to squeeze unknown amounts of money out of the federal government to manage the lands they received free of charge courtesy of these mitigation scams and ultimately the federal taxpayer.  Here is just one example from 2010:

Germaine White and Tom McDonald, Natural Resources Department, presented for approval a resolution strongly urging the American Clean Energy and Security Act (ACESA) to provide funding to American Indian tribes based on the land and water resources that tribes manage. Germaine and Whisper Camel will attend a Tribal fly-in March 22-23 in Washington, DC. It is hosted by the National Wildlife Federation. This is an opportunity to increase awareness among Senators about the inequitable funding for fish and wildlife management for Tribes and consider improvements in legislation. The proposed action is part of the annual departmental work plan and goals and would not require a modification to the plan. James Steele, Jr. is attending by the request of the National Wildlife Federation, who is paying his expenses.

MOTION by Reuben Mathias to approve the resolution strongly urging the American Clean Energy and Security Act (ACESA) to provide funding to American Indian tribes based on the land and water resources that tribes manage. Seconded by Terry Pitts. Carried, 8 for; 0 opposed; 0 not voting.

March 18, 2010 RESOLUTION 10-145

BE IT RESOLVED BY THE TRIBAL COUNCIL OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES THAT:

WHEREAS, both the Flathead Indian Reservation and surrounding aboriginal territories are important parts of the homelands of the Confederated Salish and Kootenai tribes, and contain many traditional hunting and fishing, camping, and plant resources of great natural and cultural meaning to the tribes; and

WHEREAS, the protection of these important wildlife, fish, and native plants that exist here is essential to the protection and well-being of Salish, Pend d’Oreille, and Kootenai nations as a whole; and

WHEREAS, for thousands of years, the Salish, Pend d’Oreille and Kootenai people respected and cared for the fish and wildlife of the Flathead Indian Reservation and aboriginal territories, living in ways that helped ensure the health, purity, and vitality of these places; and

WHEREAS, parts of those aboriginal territories, including the area now encompassed by the Flathead Indian Reservation, were designated in the Treaty of Hellgate of 1855 as a reservation to be set aside for the exclusive use and benefit of the Salish, Pend d’ Oreille, and Kootenai nations; and

WHEREAS, in the Hellgate Treaty the Tribes also showed their high valuation of the resources of their territories by reserving the right to continue hunting, fishing, gathering plants, and grazing on open and unclaimed parts of their ceded territories; and

WHEREAS, the Flathead Indian Reservation encompasses over 1.2 million acres of some of the best bird and fish habitat in the nation, including over four hundred miles of fishing streams, seventy thousand acres of lakes, over a quarter million acres of uplands and wetlands, ninety-two thousand acres of tribal wilderness, and over thirty thousand acres of tribal, federal and state wildlife preserves; and

WHEREAS, members of the Confederated Salish and Kootenai Tribes have a long well-documented record of providing recreational opportunities for tribal members and non-tribal members alike through proactive fish, wildlife and other resource management, including the establishment of the Mission Mountains Tribal Wilderness, the first tribal wilderness in the United States; and

WHEREAS, the Confederated Salish and Kootenai Tribes also have a long record of working in good faith with federal, state, and local agencies to develop professional working relationships, register concerns and recommendations on a broad range of issues, and ensure protection of natural resources guaranteed to the Tribes in the Hellgate Treaty; and

WHEREAS, tribal lands and waters as well as tribal license holders contribute through the US Fish and Wildlife Service’s formula for allocating to the states and territories Pittman-Robertson and/or Dingell-Johnson monies, amounting to hundreds of millions of dollars annually (over $740 million in 2009 alone, and $18 million to the state of Montana in 2008-2009); and

WHEREAS, under current Fish and Wildlife Service practice, American Indian tribes do not qualify for either Federal Aid funding (Pittman-Robertson or Dingell-Johnson monies) or Land And Water Conservation Funds; and

WHEREAS, Tribes do not receive any funding through Section 6 of the Endangered Species Act (some $67 million in 2009 to states and U.S. territories), the Multi-State Conservation Grant program ($6 million in 2009), or State Wildlife Grant Programs ($9 million in 2009); and

WHEREAS, Tribes also do not receive any funding through the Clean Vessel Act ($14.6 million in 2009) or Boating Infrastructure Grants ($2.5 million in 2009), although the Confederated Salish and Kootenai Tribes put considerable resources into the management of waterways and boating activities;

NOW, THEREFORE, BE IT RESOLVED that the Tribal Council of the Confederated Salish and Kootenai Tribes strongly urges the American Clean Energy and Security Act (ACESA) to provide funding to American Indian tribes based on the land and water resources that tribes manage. We further urge that funding be provided in a permanent, non-competitive annual base funding source to develop and maintain natural resource management programs or departments; and

BE IT FURTHER RESOLVED that the Tribal Council of the Confederated Salish and Kootenai Tribes strongly urges an audit by the U. S. Government Accountability Office to examine the longstanding environmental injustice of the omission of tribes in the distribution of federal funding for fish and wildlife management.

Be watchful of anything related to the CSKT and Smurfit, as it very likely will be the next environmental mitigation stepping stone that this tribe will use to extort ownership and control of even more land and money.

One parcel of property at at time, rest assured that the federal government via a tribal government agenda hopes to restore back to the CSKT and other Northwestern tribes the entirety of their “aboriginal ceded (and already paid for) lands” to the detriment of all other citizens and property owners that stand in their way.

And the worst thing?  This has nothing to do with culture, the tribal corporation contributes very little to the management of the resources, and it is little more than a vehicle used to control others or guilt them into “more mitigation”.  We are not fooled by this scam, but yes, the CSKT have perfected it quite well.

Let’s see how long they can continue this under the light of informed citizens.

 

Tester Fumbles the Ball

©2018 Concerned Citizens of Western Montana

Senator Tester's Official Portrait

What is that saying about “hoisting yourself on your own petard”?

Until this week Senator Jon “I’m Just a Farmer” Tester, vying for re-election in November, has been minding his P’s and Q’s in an attempt to be seen as the most conservative Democrat that ever existed.

Heck he almost seems like an everyday guy in the ads currently plastered all over the media.   While his voting record against all things related to a “Trump agenda” belies his newly found “inner conservative democrat” , he portrays himself as an advocate for farmers, veterans, and protector of our public lands.   In other words, if he thinks Montanan’s like it, Jon will embrace it.  At the same time,  Jon relies on the fact that the folks back home won’t pay attention to his votes against tax cuts, the repeal of Obama Care and Trump nominations to fill important positions in the administration.

We know how the game is played.  The goal is to fly under the radar and get re-elected to the Senate in November.  But unfortunately for Jon, Admiral Jackson, Donald Trump’s pick to run the Department of Veteran’s Affairs got in the way.  Jon felt it was his “duty” to weigh in on Admiral Jackson’s nomination in a most vicious and negative way.  After all Jon is a ranking member of the Veteran’s Affairs Committee, and political ads tell us he’s the greatest veteran’s advocate since sliced bread.

Was it his hubris, or did the Democrat elite require him to step up and take one for the team?  Either way, his decision to destroy a man’s reputation for political gain has the potential to result in his ouster from the senate in November.

Ronny Jackson Allegations / Tester

While we cannot be sure what prompted Tester’s participation in the take down of Trump’s nominee to lead the Veteran’s Administration, we are pleased to see Tester being called out for his despicable actions.

Early this morning Donald Trump called for Tester’s resignation.

Allegations made by Senator Jon Tester against Admiral/Doctor Ron Jackson are proving false. The Secret Service is unable to confirm (in fact they deny) any of the phony Democrat charges which have absolutely devastated the wonderful Jackson family. Tester should resign. The…..

….great people of Montana will not stand for this kind of slander when talking of a great human being. Admiral Jackson is the kind of man that those in Montana would most respect and admire, and now, for no reason whatsoever, his reputation has been shattered. Not fair, Tester!

WILL THIS TURN OF TESTER EVENTS IMPACT THE  CSKT WATER COMPACT?

What might all of this mean in the context of the Flathead Water Compact?

In previous posts, we’ve discussed some of the big problems with the Jon Tester CSKT water compact bill S3013 introduced into committee in 2016.

After listening to a conference call with Tester’s Indian Affairs staffers and Lake County Commissioners earlier this week, it is abundantly clear that Tester did not write the bill, nor did he read it.  And neither did his staff.  Instead of answering important questions about the bill, they stepped all over themselves. They didn’t even attempt to respond when asked one very simple question:  Who wrote the bill?

While they hemmed and hawed, and never did answer the question, the fact that it was a rhetorical question never occurred to them.  We already knew the answer:  CSKT attorneys, lobbyists and consultants wrote the bill.

To Jon, there must have been no need to read a bill that he proudly sponsored and put his name on.  If it’s good enough for the CSKT, why should he care about it’s impacts to 360,000 other western Montanans, or the other western states where tribes are located?

So what happens if Jon Tester has now stepped into a pile of political manure that he cannot recover from, and is unable to carry the water compact ball forward for the benefit of the CSKT tribal corporation?

What will happen, “heaven forbid”, should a Republican prevail in his place?

Not to worry.  Rest assured that the bases are well covered.  The CSKT are far too smart to put all of their eggs in the Jon Tester basket alone.

In fact, experience shows it would be quite beneficial to tribal interests if a “republican” were willing to save the day.  After all, it worked quite well in the Montana legislature in 2015.

FARM:  Grassroots, Astroturf or Something Else?

Anatomy of the CSKT Water Compact

Bruce Tutvedt:  CSKT Lobbyist or Legislator?

Our best guess for a possible heir apparent?  Russell Fagg, a current GOP candidate for U.S. Senate could likely be the tribe’s first draft pick.  He openly supports the water compact, his genealogical chart is properly aligned, and some of our local bully compact proponents are already shouting their Fagg support from their Ronan rooftops.

But not to worry, other candidates are also eligible for the draft.  In fact, any other candidate or current republican congressional will do just as well, if they can be properly “convinced” as to the wonders of the Flathead Water Compact.

Stay tuned as we report on how this all plays out.