Compact opponents’ case is “Going to Pieces”

by Dr. Ed Berry

Going to Pieces” Author Elaine Willman wrote a letter yesterday. Clarice forwarded Willman’s letter. Kirk MacKenzie from California forwarded Clarice’s forward. That’s the Tea-Party at work.

Willmans letter proves Compact opponents are driven by their conspiracy theories, not facts. Further, Willman’s case against the Compact is so pathetic it should be a wake-up call to all opponents that their case is founded on fundamentalist delusions.

Willman plays lawyer and fails. She can’t connect the Compact to her conspiracy theories. Her letter is hyperventilation and nothing more. It’s a dire verdict on Montana’s Tea-Party Republicans that they continue to believe this crap.

Willman believes the Compact violates:

  1. 1970 National Environmental Policy Act (NEPA) and 1971 Montana Environmental Policy Act (MEPA)
  2. 1973 Montana State Constitution, Article IX and Article II
  3. 1975 Indian Education and Self-Determination Act (Public Law 93-638)
  4. 1981 Montana v. U.S. 450 U.S. 544

But Willman is wrong because:

  1. The CSKT Compact does NOT violate MEPA or NEPA.

MEPA and NEPA do not apply to legislative actions. They only apply to actions by government agencies. Northern Plains Res. Council v. Mont. Bd. of Land Commrs., 366 Mont. 399, 288 P.3d 169 (2012).

Use common sense. If MEPA applied to the legislative actions then for all bills related to the environment the legislative session would be over before MEPA could complete its study. This would not work with Montana’s 4-month biannual legislative sessions.

  1. The CSKT Compact does not violate the Montana Constitution.

The Compact does not violate Article IX, Section 3, of the Montana Constitution, which states Montana owns all water in Montana. The Compact does not give State water to the Tribes.

Instead, the Compact is a negotiated settlement of water use. In it, the State must follow federal law and recognize the Tribes have superior off-reservation water rights. The Compact balances Tribal and non-Tribal interests in water use and it limits the Tribe’s ability to call junior water rights.

The Compact conforms to the requirements of Article IX, Section 3 to administer, control, and regulate water rights and to enter all changes in water rights into DNRC’s “system of centralized records.”

Mr. Simms made this claim and Hertha Lund quickly took it down. Compact opponents who keep bringing up their failed claims show their case is nothing but the boom, boom, boom of the non-thinking Energizer Bunny.

  1. The Compact does not violate 1975 Indian Education and Self-Determination Act

Even opponent attorney Simms did not claim the Compact violated this Act because he knows better. Willman is playing lawyer and does not list any factual claims to support her opinion or to show this Act is related to the Compact.

The basis for taxation in Indian country usually depends on financial relationships Indians and non-Indians may have, services provided, etc.  The CSKT have never tried to implement a tax program.

  1. The Compact does not violate 1981 Montana v. US.

Nor did opponent attorney Simms claim the Compact violated this US Supreme Court decision because he knows better. Willman is generally correct that this US Supreme Court decision applies to how Tribes can regulate non-member activity on fee-owned land, but Montana is notable for its exceptions to this rule.

Willman did not present any evidence the Compact violates this decision. She has only stated her opinion, and opinions do not justify rejecting the Compact.

Willman grandstands her Indian policy interests into the Compact debate. But the Compact is not about Indian policy. The compact is about quantifying water rights. Willman has only a hammer, so everything to her looks like a nail.

All Compact opponent legal claims have failed.

Opponent attorney Simms took his best shot. He included in his letter every legal claim opponents might have, or more appropriately, had. He lost. Attorney Hertha Lund took apart all the Simms claims and opponents have no valid legal claims left. Attempts by non-lawyers to produce valid claims are a waste of everyone’s time.

Elaine Willman does not think rationally.

All of her so-called legal claims against the Compact fail. But she makes much bigger mistakes than her legal errors.

First, she does not identify the question before the jury. The proper question is:

Will Montana be better off if Montana approves the Compact or rejects the Compact?

The only way to answer this question is to compare expected results of the two alternatives, YES or NO. I have done this in my articles. Water Compact attorneys have done this. But Compact opponents have not done this!

Willman’s illogic will not hold up in court. Compact opponents who use this distorted logic think they would do better by fighting the CSKT in court. They will not. You can get away with your nonsense logic among your peers but it will not fly in court.

Opponents do not realize courts are logical and they are not. Opponents do not realize a good attorney will made you look like a fool unless you have a rock-solid case. Opponents don’t have a rock-solid case. If you don’t respect the ability of your opposing attorney, the attorney will eat you alive.

The US government, which has a much deeper pocket and more time than you do, will pay that opposing attorney. If you really want the CSKT to own your water rights then vote NO on the Compact.

Second, Willman can’t connect her conspiracy theories to the CSKT Water Compact. She leaves that connection open to the imagination of her Tea-Party readers, most of whom have excellent imaginations.

Elaine Willman’s conspiracy theories are wacko.

Willman believes there are five evil forces “dedicated to the demise of State sovereignty, citizen and property rights.” Her five evil forces are:

  1. The federal Executive branch
  2. Tribal governments
  3. Environmental extremists
  4. United Nations and, you guessed it,
  5. Agenda 21

These forces, she believes, have oppressed and intimidated “elected officials at every level of government and academia in Montana.”

She writes,

“The 2015 Montana State Legislature does not remotely resemble the Montana Legislature of the 1970’s, when the State was acting like a State and damn proud of it.”

The last time I checked, the 1979 Montana legislature created the Reserved Water Rights Compact Commission with the stated goal of negotiating and concluding compacts with Tribes in Montana.

Willman admits the 1970’s Legislatures that created the Compact Commission were better than the 2015 legislature. The one major difference between the 1979 legislature and the 2015 legislature is the over abundance of Tea-Party Republicans in 2015 who oppose the work on the Compact that the much wiser 1979 legislature began.

Therefore, Willman has made the case that the Tea-Party Republicans are the problem with the 2015 legislature. And she has made the case that we should follow the lead of the much wiser 1979 legislators to approve the Compact, not to reject it.

Willman believes the 2015 legislature is bad because it is influenced by her five evil forces. But the key difference between the 1979 and 2015 legislators is the addition of Tea-Party Republicans. Therefore, Willman must argue that the Tea-Party Republicans are under the demonic influence of her five evil forces.

Of course, we learned in my previous article these Tea-Party Republicans believe “smart dust” dropped by jet contrails takes over their minds and turns them into machines. Maybe we are on to something here.

Willman claims outrageous conspiracy connections without evidence.

Willman writes the CSKT Water Compact is a “legislative Beast” and if Montana approves it, will cause:

  1. The US Constitution to be irrelevant
  2. The Montana Constitution to be irrelevant
  3. NEPA and MEPA to be irrelevant
  4. Oaths of Office to be meaningless
  5. The Pledge of Allegiance to be meaningless
  6. Montana’s 1973 Constitution to become toilet paper
  7. The 1981 Supreme Court case of Montana v. U.S. to be overturned
  8. 350,000 Montanans in 11 Counties to be subject to tribal government
  9. The State of Montana to be governed by the Tribes
  10. The State’s life support to be turned off.

She has a good imagination. She continues,

… a victorious CSKT Compact opens the door for the federal government, tribal governments and globalists to fundamentally transform Montana into something unlike the proud State the 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.

Legislators who vote NO on the Compact will join the “smart dust” club where the members believe Willman’s nutcase conspiracy theories. I hope they enjoy their company.

Elaine D. Willman’s case and the whole opponents case against the CSKT Water Compact is literally “Going to Pieces.”


Here is Elaine Willman’s letter


From: Clarice

Subject: Legislative “Consent” destroys Citizen Protection if SB262 passes

Date: February 25, 2015

Sent at the request of author, Elaine Willman for immediate distribution.  Essential to read prior to SB262 going to the House for voting.  This provides “teeth and backbone” for our presentations.   cr

MONTANA in the 70’s: When the State Stood Tall for Its People and Its Lands vs. the  Self-Inflicted Injury of the Proposed CSKT Compact.

By Elaine Willman,

Author of Going to Pieces

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.

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