CSKT Water Compact throws thousands of Montanans “under the bus”

By: Senator Debby Barrett
 
As a rancher with deep roots on a family place in southwest Montana, I know something about the importance of history—and water rights.  I also understand negotiation and compromise.  That’s why I have served on the state’s Reserved Water Rights Compact Commission since 2011 and voted for some compacts. However, during my time on the reserved water rights commission, I’ve voted “no” to provisions within this compact on seven occasions.  Here is why I will not support the proposed CSKT Compact. 
 
The Legislature’s role is to examine a proposed compact and decide whether or not to enact it into Montana law.  The Legislature’s responsibility and authority includes amending proposals if necessary, and approving all state costs associated with a compact such as this one. (The price tag of the state’s share on the CSKT compact is $55 million total).  But at an informational meeting held by proponents, the Legislature was warned that it cannot amend the proposal.  It’s a “take it or leave it” deal. 
 
That insult to the constitutional role of the Legislature is enough for me to want to leave it. Other proposed compacts have not been thrust on us, the Legislature, with such arrogance and disrespect for Legislators.  But there are other good reasons, too.
 
The 2013 Legislature refused to ratify the last CSKT Water Right Compact, for many good reasons concerning its legality and equal treatment of this state’s citizens, both on and off the reservation.  In fact, the primary proponents of the Compact this time concede that the previous version was very flawed and needed to be rejected.
 
Now, it has been re-introduced, but not much changed or improved.  While one portion of it was somewhat re-negotiated during the interim between the 2013 and the 2015 Legislative Sessions, the result did not improve that portion enough to protect local individual water users, both tribal members and nonmembers, and failed completely to address legal and policy shortcomings, on and off reservation, in the original proposal. 
 
Off the Flathead reservation, these failures include more than a dozen permanent surrenders of the Legislature’s authority over water in Montana, allowing the CSKT to choose whether to obey legislative enactments or not and giving them complete immunity from compliance with important aspects of Montana water and environmental law, including the Montana Environmental Policy Act (MEPA).  It also requires the State to give partial ownership of some of its water rights and its contracts for water to the CSKT and to manage those assets for the Tribes’ benefit, rather than all citizens of the State.  In essence, this proposed Compact requires the State to limit its legal authority off the reservation by sharing it with the CSKT--permanently. 
 
On reservation, it gives the CSKT the water right to 110,000 acres of irrigated land owned by individuals, whose irrigation districts have filed on that same water right.  It also reduces irrigation water to many if not all these irrigators, who are tribal members and nonmembers, and it establishes a unique water administration code and governing body, with the State of Montana again compromising its constitutional authority over water rights.   
 
I recognize there are powerful supporters of SB 262, including some elected officials who managed to negotiate changes to the proposals, protecting their constituents at home.  Having heard the evidence as a member of the Compact Commission, I believe the off-reservation in stream flow water rights the Compact gives are not scientifically based or well-grounded in law or history.  But I also recognize that the CSKT and their public relations people have artfully threatened much of the state with water right filings for in stream flows if the Legislature doesn't simply accept this “take it or leave it” deal. 
 
As a rancher and a Senator who values little ahead of private property rights, I think I know when to call a bluff, and when to stand my ground no matter what.  This is such a time.  Not all values and principles should be compromised away.  I do not believe my fellow ranchers and farmers really want to turn their backs on the thousands of Montanans whose property, including water rights, will be devastated by this proposal. 
 
The proposed CSKT compact is the perfect example of overreaching in negotiations, causing their failure.  The CSKT and federal government on their behalf demanded too much, and the Compact Commission negotiators surrendered too much.  As a state we tried for years to negotiate a deal good for all.  In this compact alone, that has proven to be impossible.  So, it’s time to recognize that this compact is not going to work, and we must prepare to protect the State’s rights, interests,  and sovereignty.  This compact is not just poor policy, sacrificing the rights of thousands of Montanans to protect the rest of the state is the worst policy possible.
 
Senator Debby Barrett, R-Dillon, is an eight-term lawmaker representing Senate District 36 in the Montana Legislature.  She serves as Senate President for the 64th legislative session.

"What are they not telling you about the Article V convention?"

Don't miss this opportunity to hear Robert Brown speak.

Wednesday, January 28th, in room 303 at noon in the Capitol 

"What are they not telling you about the Article V convention?"

Please help spread the word. Wednesday, January 28th, in room 303 at noon in the Capitol, join Robert for "What are they not telling you about the Article V convention?"

He is knowledgeable and studied on this topic and featured in the Constitution study lecture series, Constitution is the Solution. The Constitution is a topic that all 'laymen' can be knowledgeable by simply opening the Constitution and reading it. Language is clear and straight forward. No hidden 'intent' or 'custom' between the lines.

Please attend, and bring someone who needs to hear it!

You'll be glad you did!

ROB NATELSON PERVERTS THE NECESSARY & PROPER CLAUSE AND THINKS IN CIRCLES

http://www.newswithviews.com/Publius/huldah132.htm

By Publius Huldah
January 12, 2015
NewsWithViews.com

In former law professor Rob Natelson’s recent paper, “No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention” [read it HERE or HERE], he makes several untrue statements and commits the gross fallacy of making a circular argument which begs the question.

Natelson is the intellectual guru of those pushing for an Article V convention. Among the false claims they make is that a convention will be controlled by the States, and Congress has nothing to do with it.[1]

That false claim rests on Natelson’s (1) fanciful theory of “customs”,(2) his tortured interpretation of the necessary and proper clause, (3) his misrepresentations of Supreme Court cases, and (4) his crimes against the Laws of Logic.

I’ll show you.

What Does Article V Say?

Article V provides two methods of proposing amendments to our Constitution. Congress proposes amendments and submits them to the States for ratification; or Congress “calls” a convention if 2/3 of the States apply to Congress for a convention.

All our existing 27 amendments were proposed using the first method. We have never had a convention under Article V – for good reason.[2]

What does the Necessary and Proper Clause Say?

Article I, §8, last clause says:

“The Congress shall have Power”… “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department[3]or Officer thereof.” [boldface mine]

The Federalist Papers confirm the plain language of the Constitution: §8 delegates to Congress the power to make laws for executing the powers delegated to each branch of the federal government.[4]

How Does the Necessary and Proper Clause Apply to Article V?

Article V delegates to Congress the power to “call” the convention. The necessary and proper clause delegates to Congress the power to make all laws necessary and proper to carry out its power to “call” the convention.

The April 11, 2014 Report of the Congressional Research Service[5] shows that Congress claims exclusive authority over both methods of amending the Constitution, and that Congress claims the power to organize & set up a convention.

But Natelson – mind, he is their “cutting edge intellectual” –insists that the necessary and proper clause does NOT delegate to Congress power to organize& set up an Article V convention.

Well, well! Let’s look at Natelson’s four arguments:

(1) Natelson’s Fanciful Theory of “Customs”

A convention called under Article V of our Constitution is governed by provisions in our Constitution: Article V and Article I, §8, last clause - the “necessary and proper” clause.

But Natelson has long insisted that customs followed at conventions during our “Founding Era” determine how a convention called under Article V will be organized & set up. He says in his paper:

“… An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.”

“Founding Era” customs supersede our Constitution? And where does Article V say a convention called under Article V is an “interstate” convention?

(2) Natelson’s Tortured Interpretation of the Necessary and Proper Clause

Natelson says the necessary and proper clause:

“…is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. …” [emphasis mine]

A “rule of interpretation”? As authority for this claim, Natelson cites a book co-authored by his own illustrious self which you can buy for $34.99.

So! While Hamilton and Madison said in The Federalist Papers[4] that the necessary and proper clause was a “grant of power to Congress” to make the laws to execute the powers delegated;

And Madison and Thomas Jefferson said The Federalist Papers were:

“an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it's genuine meaning”[6]

Natelson says the clause is a “rule of interpretation” instead of a “grant of power”, and his $34.99 book is authoritative instead of The Federalist Papers.

(3) Natelson’s Misrepresentations of Supreme Court Cases[7]

Natelson next asserts “the Necessary and Proper Clause does not extend to the amendment process” because when Congress acts on Article V, it is not a Department or Branch of the federal government. Instead, it is an “ad hoc assembly”.

Congress is sometimes not a branch of the federal government? It is sometimes an ad hoc assembly? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that!

But Natelson says he “knows” this from the “Founding Era record”, from subsequent history, and from decisions of the U.S. Supreme Court, such asU.S. v. Sprague (1931).

Of course, Natelson doesn’t show where the “Founding Era record” says this; he doesn’t show why assemblies which met during our “Founding Era” are relevant to a convention called under Article V; he doesn’t show where “subsequent history” says this; and he doesn’t tell the truth about the holding in U.S. v. Sprague.

The issue in U.S. v. Sprague was whether the 18th Amendment (Prohibition) should have been ratified by conventions in each State instead of by State Legislatures. The Supreme Court held that Article V “is a grant of authority by the people to Congress” and that the people “deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments”. Accordingly, Congress had authority to select ratification of the proposed Amendment by State Legislatures instead of by conventions in each State.

U.S. v. Sprague has nothing to do with what Natelson claims it says!

Yet, Natelson goes on to say he “knows” that Congress can’t pass laws structuring the Convention because a “long list of 20th century cases” holds that “ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).”

Congress can’t pass laws organizing a convention under Article V? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that!And the Supreme Court case Natelson cited doesn’t say it either!

Of course, Natelson doesn’t provide this “long list of 20th century cases”; and the one case he did cite, Leser v. Garnett, has nothing to do with Congress’ law making powers.

The issue in Leser v. Garnett was whether States – whose State Constitutions restricted voting to men– could ratify an Amendment to the federal Constitution which allowed women to vote. The Supreme Court held that when State Legislatures ratify proposed amendments to the federal Constitution, they are performing a federal function derived from the federal Constitution and it transcends any limitations imposed by State Constitutions. So! Provisions in State Constitutions restricting voting to men did not prevent State Legislatures from ratifying an amendment to the federal Constitution which would have supremacy over a contrary provision in the State Constitution.

(4) Natelson’s Fallacious Circular Argument Begs The Question (Petitio Principii) [8]

Nowlet’s look at Natelson’s crimes against the Laws of Logic.

The fallacy of begging the question is committed when one assumes as true the conclusion he seeks to prove. An argument is circular when one seeks to prove the premise from the conclusion.

Natelson was supposed to prove that the necessary and proper clause does not give Congress power to make laws to organize & set up a convention under Article V.

St. Maries Idaho - meets with USFS

Transfer of Public Lands presentation by Montana State Senator Jennifer Fielder

Published on Dec 12, 2014

Montana Senator Jennifer Fielder's presentation on the American Lands Council proposed transfer of public lands. This video talks about the history of how the founding fathers designed transfer of lands to the states and the current need as well as reasons for state's to manage our Federal lands

...Dung in America’s Elections by Elaine Willman

Of Elephants, Donkeys and Hippos…

The Dung in America’s Elections.

What do you get with cross-corruption of the elephants and donkeys? A massive Hippopotamus to squash your vote and mine.

How can this happen? Congress intentionally set up a system to better finance and control elections. Let me explain the congressional mechanics of the system that will flourish in the 2014 and 2016 elections unless voters take it down, in the same manner that voters dismantled the Comprehensive Immigration Reform Act, which was to be a more manageable new voter pool for the donkeys and elephants.

The financial instrument was sired by Senator John McCain who sponsored the Indian Gaming Regulatory Act of 1988 to create a separate, tax-exempt monopoly that would soon pump billions back into both political parties. The current annual honeypot to play with here is over $20 billion. To ensure that the flow of money gets back to Congress the Federal Election Commission determined in May 2005 that tribal governments are not governments, and therefore could freely participate in and contribute funds to political parties, incumbents or candidates. No other governments may write a check to a political party or candidate, but hey—Congress who giveth the monopoly to tribal governments must benefit from the profits.

To ensure that such funds are undisclosed, Senator McCain, also the sire of the infamous 2002 McCain-Feingold Campaign Finance Reform Act diligently, even belligerently refused to require that tribal governments disclose, as must all other contributors, financial contributions to political parties or election candidates. Pretty neat. Create the separate tax-exempt monopoly, spread it across hundreds of private tribal governments who are not answerable to American voters, and then permit them, as the only governments allowed to participate in America’s elections without transparency…and Voila! In California alone, tribal political influence has overtaken even the labor unions. I am not speaking of the full and necessary right of every individual American Indians citizen to vote. I am speaking only of the unregulated participation of separate tribal governments in America’s elections.

More recently, the U.S. Supreme Court partially improved the First Amendment playing field for campaign activities when it ruled in a 2010 case, Citizens United v. Federal Election Commission, that the First Amendment prohibits the government from restricting independent political expenditures by non-profit organizations. The principles articulated by the Supreme Court in the case have also been extended to corporations, labor unions and other associations. The Citizens United case opened a larger voice for countering the giant tribal monies flowing into federal and state elections.  The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office. No one’s wild about the Citizens United case, but the result at least lessened the national power of tribal government participation in America’s elections.

So that’s the financial pathway, but at least we each still have our own vote, right? Wrong.

Remember that tribal governments existed long before the Voting Rights Act of 1965, but tribal government conduct in elections is not addressed in the Voting Rights Act designed to assist minority voters, nor has tribal government conduct in elections been addressed in any subsequent federal legislation respecting minority voters. Why is this a problem? The need of better access for minority voters is worthy and not the issue here. But when a separate government controls one minority, and its individual minority (Native American) voters can be coerced into bloc voting, that minority becomes a renegade “swing” vote. And the “swing” goes to the party most cooperative in close elections across the country.

There is an additional worry. In many, if not most states that host Indian reservations, a tribal identification card is the sole identification needed for a tribal member to register to vote. This would be fine if tribal governments were also required to provide accurate lists of their enrolled members to Secretaries of States or county officials that regulate and enforce elections. Tribes are not required to do so, and states have absolutely no legal way to verify or authenticate a tribal identification card used for voter registration. Why is this is a problem? States can verify state driver’s licenses, and other state identification sources. But what if tribal governments were to issue to a single voting tribal member, an identification card in an Indian name, an English name, and perhaps a maiden name as well? If I am a registered voter, and I have one vote, but my tribal neighbor may have more than one vote, and then votes in accordance with tribal government instruction, what does that do to my vote? It is part of the Hippopotamus that squelches my vote and yours.

This system has been in serious play in evenly divided states for more than two decades already, and is becoming even the more severe in terms of financial and voting political outcomes. Need some examples? How about the very close election that transferred a Senate seat from Slade Gorton to Maria Cantwell? Or the 130-vote difference on a third recount that provided Washington State with Governor Gregoire instead of Dino Rossi? The State Capitol of Olympia has been Santa Claus for 31 tribal governments for years now. Property and business tax losses and state revenue flowing to these tribes must be offset by the rest of Washington taxpayers.

Another egregious example exists in Montana. Before the November 2006 elections, the Crow Indian tribe passed a tribal legislative directive, endorsing a slate of tribal candidates for county government offices, and announced, “We’re taking over Big Horn County government.” The tribal legislation was full-page advertisement in newspapers on and off the reservation, and mandatory tribal employee “feasts” were held with shiny new tribal ID cards issued to tribal members up to and through Election Day.

At two polling precincts within the Crow Indian reservation, ballot boxes were left unlocked all day, a non-tribal poll watcher ordered to leave, and at final count, all tribal candidates handily won. It was a stunning and literal governmental coup. As a result of the Big Horn County election in November 2006 enrolled tribal members hold the county government seats of commissioners, the county attorney, the county sheriff, the county judge, and the county clerk/recorder (oddly, the one in charge of elections in Big Horn County). These tribal members now regulate and conduct county government actions of land use, taxation, and law enforcement that do not apply to tribal members within their reservation boundary. Unfortunately, the Secretary of State of Montana has no enforcement authority over polling precincts within Indian reservations. There are over 75 such polling precincts in Montana alone. But this shenanigan in Big Horn County had national consequence as well.

The ballots in unlocked ballot boxes on the Crow Indian Reservation provided over 800 votes to Senator John Tester, along with an additional 1,100 votes from other polling precincts within Montana Indian reservations. Senator Tester’s election shifted the power of the entire Senate, contributed to Congress’s attitudinal shift about the War in Iraq, and caused Senator Ben Nighthorse-Campbell to boast with such comments as:

“And I think too you know, and I tell them literally every place I give talks on Indians now, I think in one respect Indians can claim victory on the control of the United States Senate. Because it worked like this [in the 2006 mid-term elections last November]: they were down to the wire. The last senator whose votes were counted was Jon Tester of Montana. They had the numbers up there and they know it was Indians put him over the top. And Jon told me that too, he knows it too, Indian people got him elected.

Well, when you have the leadership and all the committee chairmanships and all the stuff change because one senator got elected [putting Democrats in the majority] - if Jon had not won that race, wouldn't have had a new president of the Senate, wouldn't have had a new chairman of the different committees and all that, right? So in a sense Indians can say that we got that man elected and he's the one that tipped the scales, so we won the Senate.” [Ben Nighthorse-Campbell, Indian Country Today, June 15, 2007]

Minnesota, Montana, New Mexico, South Dakota, Washington, and many other states across our election landscape are very evenly divided between elephants and donkeys. Representing less than 1% of America’s population, the Hippopotami (tribal governments) politically rule today, with financial and voting power that is silent, secret, orchestrated by private tribal governments and further corrupts the elephants and donkeys, neither of whom call the shots any more. Does this help explain why both parties are now pandering to illegal immigration fans for a fresh and more manageable voting population?

One would think that all the perks obtained for over twenty years for tribes by Senator McCain would buy a little loyalty. But having attempted even a mild limit to off-reservation casinos, McCain has fallen from the tribal industry grace. Even BIA Assistant Secretary Kevin Washburn finds no problem with verbally disrespecting Senator McCain in public hearings. Wealthy tribal governments require that elephants and donkeys remain loyal beasts of burden or they are immediately relegated to the tribal glue factory. Just ask former Senators Conrad Burns, Slade Gorton, Tom Daschle, or current Senator McCain. Senators such as Jon Tester know exactly where their bread is buttered and behave accordingly.

The congressionally created Hippopotamus has tamed its masters, and the cost to you and me is the last precious thing we have: our vote.  One man; one vote. This foundational principle must be unimpeded by out-of-control tribal governments acting as a silent but controlling Third Political Party in America’s elections.

What can you and I do about this? Track the funding behind incumbents, candidates and current elected officials. Be certain that elected representatives adhere to their Oath of Office and abandon their Stockholm Syndrome behavior toward tribal governments. Demand that not a single ballot box or polling precinct be located on land that lacks full and forceful authority and enforcement of the Secretary of State. And these actions must be done quickly and constantly to bring One Person – One Vote back to reality in this country.

Elaine Willman

Elaine Willman, MPA, is Board Member of Citizens Equal Rights Alliance (CERA) an organization of community education groups and citizens in 25 states who reside within or near federally recognized Indian reservations.  Ms. Willman is author of Going To Pieces...The Dismantling of the United States of America, a non-fiction reflection of the voices on and near 17 Indian reservations in the United States.. 

Revealed; The Men Who Own and Run the U S Government