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Montana elections spotlight attorneys general, tribes

WASHINGTON – Montana may be working on another nickname – something along the lines of “Indians for Democracy.”

It’s not as catchy as the current one. But if Tom Rodgers is right, the tribes of the Big Sky State overcame the big lies that had overtaken Washington during the heyday of criminal ex-lobbyist Jack Abramoff and his Republican confederates.

Rodgers, a Blackfeet citizen from Montana who lobbies in Washington with Carlyle Consulting, took a lead role in bringing Abramoff to justice, and Montana tribes trampled out the last of his influence by casting the votes that put Jon Tester into the Senate in 2006. When the vote count went Tester’s way, by the narrowest of margins over Abramoff-tainted incumbent Conrad Burns, majority control of the Senate went from Burns’ Republican to Tester’s Democratic Party. Throughout the 110th Congress, Democrats scheduled hearings into corruption issues that would not have seen the light of day under Republicans, Rodgers believes – above all, Abu Ghraib prison in Iraq, the politicized firings of U.S. attorneys and various other ethics violations.

Rodgers called on all Americans to take note: “The most oppressed people in the nation gave them their democracy back.”

Nothing like that is on the line in Montana elections this year. One of the state’s leading newspapers has described a “quite political landscape” in 2008.

But the most intriguing race in the state has reached out to tribes while highlighting the importance of a too seldom-considered office – the elective office of state attorneys general.

For tribes especially, with their many interests that come before the governors and their many issues that involve state legislatures, engagement with the top lawyer and law enforcement officer in the state is crucial, according to Steven C. Moore, an attorney with Native American Rights Fund in Boulder, Colo.

“The relationship between tribes and the attorney general is vitally important. ... If you’ve got an AG that’s interested, you reach out. I think it’s probably time and energy and resources well-spent.”

Moore’s main practice is in tribal water rights. Under the “Winters doctrine” (so-called from a legal case that originated in Montana), Indian water rights on reservations are aboriginal, pre-dating settler states; but states typically claim all water rights within their jurisdiction. Given competing claims between two sovereign jurisdictions, state and tribe, “Those [Winters] rights have to be quantified and decreed in court with the state,” he said. The attorney general is apt to have a prominent role in the process.

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Frank Pommersheim, professor of law with the University of South Dakota School of Law in Vermillion, S.D., said that for tribes, attorneys general may be the most important officials in state government. They often lead the way on the state side of different tribal issues. “They generally signal what the position of the state will be.”

The role of a state attorney general may range from lawsuits to out-of-court settlements, from negotiated agreements to amicus or “friend of the court” briefs, from memoranda of understanding on cross-deputization in law enforcement to voting rights.

In some states, Indian and tribal issues may not have a high profile against all the other issues an AG deals with. But Indian governments and voters must try to learn the positions of AG candidates, Pommersheim said.

“Do they respect tribes on a government-to-government basis?”

The thing to look for above all, he added, is a “respectful posture. ... Cooperation is the key.”

Come what may of Montana’s attorney general race, the seven reservations in the state don’t appear to have major worries in that respect. Both of the candidates, Steve Bullock for the Democrats and Tim Fox for the Republicans, have visited the reservations in the state and speak of the tribes as sovereign governments. Bullock represented tribal interests in a successful state case against allegations of voter fraud on a reservation, by an organization regarded as anti-tribal sovereignty throughout Indian country. Fox said the election process must be fair to everyone and the time for vigilance is “in the off-season,” when election officers are trained and citizens provided with accurate information about their rights.

Bullock said he came to appreciate Native culture in his youth. “In Montana, that was the only cultural diversity.” Fox said of a Montana law requiring that tribal culture be taught in schools: “My parents taught that in the home.” His father was given a Crow name; Fox himself grew up playing hand games with Northern Cheyenne and Crow friends and later entered the sweat lodge of both tribes. Neither candidate is Native.

Both consider law enforcement on reservations a poorly served priority. “We need an attorney general who makes this a focus of his tenure,” Fox said, adding that if elected he’ll go to Washington with tribal leaders and try to win passage of the Tribal Law and Order Act, Sen. Byron Dorgan’s effort to overhaul the federal law-and-order systems in Indian country.

Only one of the tribal offices in Montana responded to inquiries about endorsements in the AG race. The Fort Peck Assiniboine Sioux council has endorsed no one in the Montana elections, said Chairman A.T. “Rusty” Stafne. “But we definitely support Steve Bullock, mainly because he is a Democrat, I guess.”