Water compact board is 'separate but unequal'

There is a fundamental constitutional issue involved with the CSKT Water Compact that appears to be overlooked.  It pertains to what is an integral part of the current Compact:  the Unitary Management Ordinance (UMO) and the “Flathead Reservation Water Management Board” which is created under the UMO concept.

Placing non-Indian, tax-paying, state citizens under the authority of this board, which “shall be the exclusive regulatory body of the Reservation for the issuance of Appropriation Rights and...for the administration and enforcement of all Appropriation Rights and Existing Use” is a clear violation of the “equal protection” clause in Article, II Section 4 of the Montana Constitution. (Language in quotes is directly from the compact.)

This board is two-fifths appointed by the Tribal Council and two-fifths appointed by the governor, with those four choosing the fifth member. Non-Indian state citizens within the boundaries of the reservation have one vote — their vote for governor — with which to influence the makeup of this board. State citizens who are also tribal members have two votes — one for Tribal Council and one for governor — with which to influence the makeup of the board. 

In short, those with a tribal interest have influence over the appointment of all five members of the board while those with non-tribal interests have influence, at best, over three of the five. It is possible, of course, for the entirety of the board to be determined by individuals favorable to tribal interests.

It is beyond my understanding how anyone could argue that this is not a clear diminishment of representation, and therefore, less “protection of the laws,” for non-Indian Montana citizens who reside within the boundaries of the reservation as opposed to those non-Indian Montana citizens who reside without the boundaries of the reservation.  

These non-Indian Montana citizens are subject to all applicable state laws and taxes in a fashion no different from all other non-Indian Montana citizens. In light of that fact, the Legislature has no authority or right to place these citizens, simply by reason of where they reside and own property within the state, under the authority and jurisdiction of an autonomous board that is, at minimum, 2/5 determined by another (sovereign) government, to administer something that its own Constitution specifically and explicitly establishes as a legislative duty to all citizens (Article IX, Section 3).

It is more than a little interesting to me that the U.S. Supreme Court, in one of the more famous “equal protection” cases — Brown v. Board of Education of Topeka — ruled that “separate but equal” did not fulfill the “equal protection” requirement.  And yet, the board established under the Unitary Management Ordinance of this compact isn’t even “separate but equal.” It is “separate” for sure, but it creates an entirely “unequal” administrative process regarding water rights for some Montana citizens as opposed to others. Indeed, it is “separate but unequal.”

The entire section of the “equal protection clause” in the Montana Constitution is in Article II, Section 4 under the subtitle “Individual dignity.” 

Non-Indian state citizens who live within the boundaries of the Flathead Indian Reservation should be afforded the same “individual dignity” as all other citizens.

Jore is a resident of Ronan.