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Native Legislators Say Tribal Governments Not Consulted for New Laws

The exterior of the front of the Montana capitol building
Jackie Yamanaka
Yellowstone Public Radio
The Montana Capitol

Native lawmakers in Montana say this year’s legislative session brought laws created without tribal government input.

The 2021 legislative session got off to an unusual and difficult start for everyone due to the pandemic. That unusual start meant lawmakers didn’t receive their regular orientation briefing from law school professors, including a lesson on the legislative policy cited in the Legislator’s Handbook that, “the best interests of Montana Tribes will be served by engaging in government-to-government relationships designed to recognize the rights, duties, and privileges of full citizenship that Indians are entitled to as citizens of this state.”

According to Todd Everts, the director of Legal Services at the state’s Legislative Services Division, this legal crash course was cut because the technology to allow law school professors to join remotely was not operational.

Jordan Thompson is the attorney and lobbyist for the Confederated Salish and Kootenai Tribes.

“Indian issues are incredibly complex and you just need to have a certain level of understanding of them,” Thompson says. “And what I'm seeing is it's just going to take a whole reeducation of folks to kind of get them up to speed.”

Thompson says knowledge of how legislation impacts tribal nations is difficult to find when so many new lawmakers come through the statehouse.

“I don't see so many new issues. I see new legislators.”

According to the Legislative Services Division, at least 40% of lawmakers are new to their positions every session.

The old issues included debates over bison management, voting access and big game hunting on reservations.

Jonathan Windy Boy, a representative from Box Elder, says much of the proposed legislation wasn’t new, but Gov. Greg Gianforte sitting in the executive office helped some bills advance.

“And sure enough, a lot of these bills made it through and got signed into law,” Windy Boy says.

A spokesperson for the governor’s office did not respond to YPR’s request for comment by deadline.

Many members of Montana’s American Indian Caucus say non-Native legislators did not understand protocols for consulting with sovereign tribal nations on bills that could impact tribes.

Democratic Sen. Susan Webber from Browning says lawmakers were often vague when describing their consultation process, if there’d been any consultation at all.

“Whoever he talked to. ‘I called him.’ Well, called who? Who did you call?” Webber says.

Rep. Frank Smith, a Democrat from Poplar who’s served in nine sessions before this, says the amount of bills being drafted without any tribal consultation was unprecedented.

“I've never seen it happen like it did this year,” Smith says.

Democratic Sen. Shane Morigeau from Missoula says the need to educate legislators about who Native Americans are and remove stereotypes consumes an immense amount of time.

“I try to handle this in a good, positive way where I'm having conversations with people about, you know, where I come from and about Montana Indians and who they are,” Morigeau says.

Morigeau says an example of that misunderstanding is a new law that forces tribes to pay back property taxes if their fee-to-trust application is rejected or the process that allows them to buy their own land back from the federal government takes more than five years. Morigeau says he’s never heard of one government charging another like this.

“Sets bad precedent for tribal state relations moving forward,” he says.

Supporters of the bill argued tribes were submitting more fee-to-trust applications than expected when the original bill granting property tax exemptions for applicants was passed ten years ago.

While most of Montana’s American Indian Caucus is made up of Democrats, Republican Sen. Jason Small says he saw members from both parties come up with bills that didn’t get input from tribes.

“Let's be real. Both sides of the aisle come up with some pretty bad ideas,” Small says.

Many Democratic members of the caucus say the session atmosphere was more contentious than previous years, and that can be seen now in lawsuits over bills passed and signed into law.

Tribal nations, including Blackfeet Nation, Northern Cheyenne Tribe and Fort Belknap Indian Community, have brought lawsuits against the state over legislation ending same day voter registration and limiting absentee ballot assistance.

CSKT Attorney Thompson says much litigation could be avoided if there was more communication between the state and tribes.

“I'd much rather have a legislator reach out to us before they bring legislation, than just hear about it or see it on the agenda. I think solutions could be found outside of creating legislation to deal with it just by working with us. But instead of trying to work with us as partners, it seems a lot of times we end up with contentious bills that we have to oppose and I would much rather work with our state partners than oppose it,” Thompson says.

While bill drafters often advise lawmakers to consult with tribal governments potentially impacted by bills, there is no law requiring lawmakers to consult with tribes.

Kaitlyn Nicholas is Yellowstone Public Radio’s Report for America Indigenous affairs reporter.

Kaitlyn Nicholas covers tribal news in Montana.