by Elaine Willman

When did the political winds shift? 

RE:       Montana v. U.S. 450 U.S. 544

             In a landmark U.S. Supreme Court ruling on March 24, 1981 the State of Montana prevailed over an extensive litigation when the federal government as fiduciary for Crow Tribe sued the State of Montana on October 9^th, 1985. This was a six-year costly legal battle that illustrated how seriously the State was willing to defend its State authorities over its lands and people.  The State prevailed in the lower federal district court, but lost at the appellate (9^th Circuit) court. The State then appealed to the U.S. Supreme Court, and won the case for not only the State of Montana, but many very grateful States across the country that host Indian tribes and reservations.

The nutshell of the ruling asserted that tribal governments have authority over tribal members and tribal properties, but do not have authority over non-tribal persons and properties, with two exceptions: 

1. If a party consents to be governed by a tribal government
2. If the issue threatens or has a direct effect upon tribal government’s "political integrity, economic security, and health or welfare.

A critical component of the ruling is the requirement of consent in order for a tribal government to govern a non-tribal person or property. Not even the CSKT Tribal Constitution of October 28, 1935 authorizes governance over non-tribal persons or properties. And consent is the critical component in the proposed CSKT Water Compact.  What happened to Montana in thirty-three years between the 1981 victory for Montana and all States and 2014, today?

When did a majority of State legislators decide that the hard-fought 1981 Montana ruling is now meaningless, and that it is perfectly fine for State legislators to consent to abdicate its protections and jurisdiction over thousands of Montana citizens in 11 counties to a small domestic government that has no duty to Montana’s non-tribal population (93.5% of the State population)?  The consequence of such thinking by any state elected official is large, long and egregiously foreboding to the future constitutional protections of citizens statewide.

Exacerbating the State’s unrestrained consent, is the absence of a waiver of tribal sovereign immunity incorporated within the proposed Compact and specific to all contents of the compact. This combination of State consent and no tribal sovereignty waiver is so toxic that it renders Montana water rights owners, users and citizens absolutely helpless and vulnerable to a domestic tribe that has no duty to them – a tribe that may not be sued when harm occurs to anyone in the future. 

Additional serious concerns, any combination of which could actually defeat the Compact: 

1. 1.      WAIVER:  A full waiver of limited tribal sovereign immunity must be incorporated into the compact; a waiver that is specific only to all of the contents of the compact. This waiver must be signed by officials of the CSKT, the Secretary of Interior and the Department of Justice.
   1. 2.       COURT: A specifically identified COURT - either state or federal, but federal is the better one. Absent an identified court, disagreements begin in tribal court and years can go by (and a lot of money) "exhausting tribal court remedies" before one can move into a state or federal.
   2. 3.       THREE CONSTITUTIONS: The proposed Water Compact includes clear and numerous violations of three Constitutions: Federal, State of Montana, and CSKT's Tribal Constitution. Please note that the primary governing document of the Confederated Tribes of the Salish-Kootenai is their Tribal Constitution, approved by the Secretary of Interior and ratified on October 28, 1935. This document should be included as a guiding document in the proposed compact.  
   3. 4.       FOREVER/PERPETUITY: This language included in a compact was ruled unconstitutional in Wisconsin not so long ago.  When Wisconsin’s former Governor Jim Doyle executed Class III Gaming Compacts with Gaming Tribes in Wisconsin, the Wisconsin State Legislature sued the Governor.  The Court ruled in favor of the State Legislature, ruling, among other things, the “perpetuity/forever” handcuffs the voice of future elected officials and citizens as well.
   4. 5.       UMO:  The structure of the UMO implementing an approved Water Compact severely removes Montana constitutional protections and jurisdiction for thousands of Montana residents in at least 11 of the 56 counties of the State. Transferring jurisdictional authority of Montana’s non-tribal citizens to a small domestic government that has no duty to non-tribal citizens must not occur.
   5. 6.       U.S. SUPREME COURT: The proposed Water Compact violates a very recent landmark water law ruling of the U.S. Supreme Court ruling of June 2013:  Tarrant v. Herrmann.  This is a unanimous (9-0) ruling of the U.S. Supreme Court that rules:  "States have the absolute right to the waters and soils beneath them for lands ceded to the State upon their statehood."  Article IX of Montana’s Constitution provides the state full authority to manage is waters, and to negotiate with corporations, federal agencies and tribal governments, without the loss of Montana’s control over its waters.
   6. 7.       FRAMEWORK & STRUCTURE OF THE COMPACT: The basic framework or structure for this compact/contract is, in my opinion, a serious concern regarding fundamental contract law.  In “private” sector agreements are called contracts; in “public” sector agreements among governments are generally called compacts, but they are one and the same, and the fundamental elements that are required for this kind of compact (transferring water) should include the following elements: 1) offer; 2) acceptance; 3) consideration. Granted, governmental compacts may lack “consideration” when parties merely agree to do or not do something, without actual “consideration.” In the proposed Water Compact, however, there is “consideration,” provided by the State ($55 million) and the federal funding included.
   7. 8.       TIME IMMEMORIAL. If this phrase had any legal validity, the United States Constitution and the laws of Congress would be entirely irrelevant for any matter deemed valid through “time immemorial." Granted, there are a couple of lower court rulings made by appeasing judges, but this time immemorial concept is not the law of the land, nor would it likely survive the U.S. Supreme Court. So often in the absence of a written history, tribal legends and folklore upon incessant repetition can appear legal in basis. I fully revere and respect American Indian history, as it is the history of my husband (Shoshone-Lemhi) and me (Cherokee).  That said, I make clear distinctions between tribal culture and government decision-making. Culture is not government; government is not culture. I speak to any government decision that impacts me as a citizen or my property or business, whether the decision is federal, state, tribal or local.

Basically does the Governor or any elected official have the legal authority to . . .

1.  Remove my Montana Constitutional protections?
2.  Remove water rights attached to my land patent, much less without compensation? 

The answer is a hard NO, but these two conditions are built in to the proposed Water Compact.

The operating word in these questions is "authority." WHERE is the State of Montana getting its authority to accomplish these two issues?   

Elaine D. Willman, MPA

Author, Going to Pieces…the dismantling of the United States of America.