True colors 

Martz still carrying water for industry

The upcoming elections have overshadowed almost everything in the political arena, but some issues are so seminal in their import that, for the moment, we must put the candidates, their promises, their mudslinging and their campaigns to the side. Last week’s meeting of Montana’s Land Board provided just such an issue when the board considered joining an energy company in a lawsuit against the Northern Cheyenne Tribe over ownership of the bed of the Tongue River. In a party-line vote, the three Democrat members of the board refused to be rushed into the suit, while outgoing (but not yet gone) Gov. Judy Martz and Secretary of State Bob Brown showed their true colors in siding with an out-of-state energy corporation against Montana’s First People.

To understand the implications of this egregious assault on tribal sovereignty, it helps to remember back a few years when Gov. Martz had just been sworn into office and, apparently, had just discovered that there were Indians living in Montana. Oh those were heady days, when Martz was living in a dreamland of the potential accomplishments for which history would remember her. Meetings with tribal leaders during the legislative session were filled with gift-giving and promises from Martz to not only work closely with tribes, but to visit each reservation on a regular basis and to address the concerns of our long-suffering and much-maligned Indian citizens.

Those promises, however, lasted about as long as Martz’ political honeymoon—which was slightly less than a nanosecond. By the time the Legislature came back to town in the middle of her term, the Indians were way down at the bottom of the governor’s “to do” list. Not only had Martz basically forgotten about the tribes, the position of coordinator for the Governor’s Office of Indian Affairs—supposedly the portal through which tribes interact in a government-to-government manner with the governor and state—had been vacant for the last two years.

So perhaps it comes as no surprise that, when the question of who owns the bed of the Tongue River came before the Land Board, Martz took sides against the Northern Cheyenne Tribe. The issue, however, is much more complex than simply once again pushing Indians off to the side so industry can get on with exploiting Montana’s remaining natural resources.

The Tongue River and the Northern Cheyenne are historically intertwined. For one thing, the tribe considers the river sacred—a truly worthwhile concept that has yet to make its way into the worldview of the general non-Indian population. And, since the Tongue River defines the eastern boundary of their reservation, the tribe claims ownership to the center of the river. Therein, at least for the Martz administration, lies the rub.

As it turns out, Fidelity Exploration, the company that is currently developing coal bed methane deposits in the Tongue and Powder River basins, has leased several state land parcels bordering the Northern Cheyenne Reservation. Fidelity wants to drill under the river for coal bed methane, and the Department of Natural Resources and Conservation (DNRC), using “revenue for the school trust” as its cover, is hot to push Martz’ energy development agenda.

The problem for Fidelity and Martz, however, is that the Northern Cheyenne Tribe opposes having its surface water polluted or massive quantities of its groundwater pumped for short-term energy development. Unlike the highly mobile non-Indian population that swarms all over the continent depleting and polluting natural resources, tribal members retain only the bare remnants of their historic land mass. In the case of the Northern Cheyenne, that remnant is definitely limited and its resources, such as clean water and land, are highly prized and aggressively defended for future generations of tribal members—another worthwhile concept that has not yet caught on with the general non-Indian population.

Fidelity’s lawyer and state agency officials tried to dazzle the Land Board with visions of big bucks sugarplums if only the state would join the suit to “quiet title”—a polite term for stealing tribal land.

But Attorney General Mike McGrath, the state’s top legal officer, was having none of it. The normally cool and collected McGrath was incensed that an issue with such grave consequences “was brought before the Land Board with two days notice.” McGrath pointed out the state’s longstanding water compact with the tribe, which has been ratified by both Congress and the Montana Legislature, and reminded his fellow board members that the federal solicitor has already said the case has no merit. McGrath bluntly concluded: “We have no business doing this and I have no intention of voting for it.” Nonetheless, DNRC director Bud Clinch pressed on, noting: “The governor asked to bring this forward.”

Almost unmentioned, and unreported by the mainstream press, was a significant issue that affects far more than the 80 acres Fidelity wants to drill. The Northern Cheyenne Tribe, in a determined effort to protect the river, filed with the federal government in 2001 for Treatment as a State (TAS) status. If the feds grant such status, it would give the tribe the authority to regulate the river’s water quality, including setting pollution limitations at tougher levels than those used by the state. Doing so would put a definite crimp in Fidelity’s plans to use the Tongue River as an industrial ditch for its upstream coal bed methane discharge water.

In the end, Secretary of State Bob Brown made the motion to join the suit and Gov. Martz, in a clear violation of Roberts Rules of Order, seconded the motion from the chair. They lost the vote on a 3–2 party line split, but the very next day the governor, ignoring the attorney general’s advice, announced that her office would proceed with the suit.

For Martz, showing her true colors on tribal sovereignty is just another in a long line of embarrassing blunders. But for Brown, who could have used a few votes from Indian Country in his tight race for governor, the consequences may be much greater.

When not lobbying the Montana Legislature, George Ochenski is rattling the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at

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