Against the CSKT water compact

By Elaine D. Willman, MPA

There was a time when the Montana legislature was at the forefront of environmental policy, state sovereign authority and diligent protection of the rights of Montana citizens.  Look at this interesting time line of events from 1970 through 1981 when Montana legislators were taking excellent care of their State and citizens:

1970  National Environmental Policy Act (NEPA). This federal mandate requires assessment and analysis for all significant projects affecting the environment, across the country.

1971  Montana Environmental Policy Act (MEPA). Farsighted legislators passed, 99-0, a state mandate, MEPA,  requiring assessment and analysis for all significant projects affecting the environment. MEPA stepped up the “spirit” and strength of the federal act, NEPA, and significantly expanded the public right to participate in government decisions. Perhaps now we better understand why both of these environmental mandates have been avoided at all costs. The proposed CSKT Compact is in direct violation of NEPA, MEPA, and the Administrative Procedures Act of 1946, requiring due process and a remedy for grievances against government decisions. MEPA was preparatory to the development of a new Constitution for the State of Montana, adopted in 1973.

1973 Montana State Constitution. Legislators adopted a Constitution that incorporated the intent of MEPA into Article IX of the new Constitution, and additionally provided Montanans with 35 enumerated rights in Article II, including popular sovereignty, the right of participation,  and the right of self-government.

1975  Indian Education and Self-Determination Act (Public Law 93-638) provided tribes with the right to self-government and management of their own federal funds through contracted services.  Unfortunately, many tribes ignored the critical word prefix self in self-determination and took actions toward  asserting tribal government authorities to tax and govern non-tribal persons and properties.

1981  Montana v. U.S. 450 U.S. 544.  In 1973 the Crow Tribe attempted to assert its jurisdictional authority over non-tribal lands and persons. The State of Montana argued valiantly for many years to protect Montana citizens, and obtained the ruling in Montana v. U.S. that continues to be a landmark Supreme Court case protecting citizens in Montana and across the country from tribal governance over non tribal persons and lands.

Throughout the 1970s and into the 1980s the Montana governors and state legislators were diligently protecting state sovereign authority, state natural resources and the individual rights of Montanans. So what happened between 1981 and 2015?

The emerging coalition of a powerful triumvirate: 1) federal Executive branch over-reaching; 2) tribal government political influence and tribal government over-reaching; 3) coalitions of environmental extremists; the trendy aboriginal and United Nations movement, and the globalists promoting Agenda 21. All of these folks are on the same page, singing from the same hymnal and absolutely dedicated to the demise of State sovereignty, citizen and property rights. This cumulative political and financial power has had oppressive and intimidating success among elected officials at every level of state government and academia in Montana. The 2015 Montana State Legislature does not remotely resemble the Montana Legislature of the 1970s, when the State was acting like a State and damn proud of it.

What will be the end result of the CSKT Compact if Montana’s legislators breathe life into this legislative Beast?  Look again at the policies and laws noted in the time line above.  The CSKT Compact will render irrelevant the U.S. Constitution, the Montana Constitution, the National Environmental Policy Act, the Montana Environmental Policy Act, and this is just openers. Current state legislators passing the Compact will ensure their ongoing and future irrelevancy as elected officials of a state intentionally enfeebled by the CSKT Compact. Oaths of office and the Pledge of Allegiance are now just meaningless, irrelevant rituals. One of the finest State Constitutions in the country, Montana’s 1973 Constitution becomes toilet paper.

Another irony:  Passage of the Compact will also overturn hard-fought protections from tribal governance over non-members in 1981 Supreme Court case of Montana v. U.S. for Montana citizens; however,  the rest of the country will remain protected by this Landmark ruling of the High Court because the ruling protects citizens from tribal governance absent their individual consent.  The Compact legislatively removes individual citizen consent for some 350,000 Montana citizens in 11 counties that will be subject to tribal government control of their water, their water rates, and water-dependent land use.

The Compact is not just about water. It is now about the Rule of Law as well. Our federal and state Constitutions matter, or they don’t. Our federal and state environmental mandates matter, or they don’t. Supreme Court rulings matter or they don’t. Exactly what does matter to current legislators and an entire cadre of well-paid Montana state attorneys? It certainly does not seem to be to uphold the Rule of Law in the State of Montana. The once youthful and muscle-bound State of Montana is voluntarily surrendering its Statehood to Assisted Living in perpetuity, to be governed by tribes, the federal government and International organizations intent on destroying State authorities, property rights and the rights of the Popular Sovereignty of each and every citizen. Montana is already buckling at the knees; the proposed CSKT Compact begins the process of turning off the State’s life support as a State. The battle then goes to all of the other Western States.

One more sad irony: There is within the rule of law the Doctrine of Parens Patriae. This is a legal doctrine wherein a State within its sovereign capacity may provide protection, and may even sue on behalf of, citizens unable to care for themselves. The proposed Compact will render tribal and non-tribal landowners, 11 counties and their municipalities, and some 350,000 Montanans needing water for the homes and businesses, hard pressed to pay high water rates, or take care of themselves in the future. Do you suppose your current or future Governors and State Legislator will step in to help them?

A victorious CSKT Compact opens the door for the federal government, tribal governments and globalists to fundamentally transform Montana to something unlike the proud State that existed in the 1970s. Montana legislators passing this Compact may just as well turn off the lights in the Helena Capitol because the CSKT Compact is a fatal, self-inflicted injury to State sovereignty and all of Montana’s waters. Legislators voting for the Proposed CSKT Compact are assuring their future as useful idiots to federal, tribal and international influence.

Elaine D. Willman, MPA