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I am currently halfway through the session of my legislative fellowship with Montana Free Press and ICT, which is my first job after graduating from journalism school. This experience has been a mixture of profound insights and overwhelming moments.
The job? To cover the state Legislature’s American Indian Caucus for both MTFP and ICT.
During the past six weeks, my stay in Helena has been a journey filled with continuous uncertainty, excitement, curiosity, and occasionally intense frustration. However, each day has presented an opportunity to gain fresh insights into the legislative process.
I belong to the Blackfeet Tribe and during my time in school, I concentrated on reporting Indigenous affairs. Before joining the fellowship, my exposure to political coverage was minimal, which left me feeling uncertain about what I had signed up for. The whole experience seemed daunting.
Upon reflection, I now have a clearer understanding of the purpose behind establishing this fellowship and the significance of highlighting Native issues at the state level. I am gradually comprehending the process by which bills are initiated and the challenges they encounter in their journey towards becoming law.
The reason why it is crucial to cover the Native caucus is because it helps relay the proposed policies of Indigenous lawmakers to the Montana communities that would be directly impacted by their implementation or rejection.
Montana has not given enough attention to legislation that focuses on Native issues, which has deprived the readers of the coverage they deserve. I strongly believe that the fellowship, in collaboration with ICT/MTFP, is a significant stride towards bridging this gap. However, it is crucial to have more Indigenous journalists in Helena and throughout the state. My aspiration is to establish a foundation for a future where Native voices are a prominent and ordinary presence in Montana media.
Until then, I’m looking forward to more reporting in the second half of the session. If you have a news tip to explore, or an insight to share, or just feedback about how we’re doing and how we can do better, I hope you’ll reach out to [email protected] and let us know. I’m eager to hear from you.
—JoVonne Wagner, Legislative Fellow
By the Numbers
Number of months of continuous Medicaid coverage for new moms outlined in a funding proposal advanced by the House Appropriations Committee this week. Expanding postpartum health care coverage for Medicaid recipients, currently capped at 60 days, is one of the features of Gov. Greg Gianforte’s executive budget request.
Glad You Asked
Recent news that a handful of groups worked together to transfer two islands in the Yellowstone River into Montana Fish, Wildlife and Parks ownership prompted a question about ownership of islands, given the mutable, often unpredictable character of large free-flowing rivers like the Yellowstone.
One goal of the Otter Creek acquisition is to mitigate harm to fish, wildlife, migratory birds and habitat stemming from the 2011 Exxon oil spill in the Yellowstone River. It will also support public access. Credit: Chris Boyer, Kestrel Aerial Services
We asked Bill Shenk, FWP’s Land Program manager, for insight. He described the Yellowstone as “Exhibit A” of rivers prone to changing course. The tracts of land encompassing the two 50-acre islands upstream of Reed Point had been privately owned prior to the transaction, Shenk said. (That might have been a function of when they were first surveyed. Islands in navigable rivers surveyed and mapped post-statehood are generally administered by the Trust Land Division at the Department of Natural Resources and Conservation, and the streambeds are held in trust by the state as a public resource.)
A handful of groups worked on the transaction, which was facilitated by Beartooth Group, a Bozeman-based conservation investment firm. Funding was supplied by the Natural Resources Damage Program, which was established after the 2011 oil spill. The parcels transferred into state ownership are designated in yellow.
According to Shenk, although the contours of the Otter Creek Ranch islands have undergone changes and will continue to do so, the property boundaries associated with the FWP transaction were the original platted boundaries.
He added that landowners have the option to survey their property and request the Bureau of Land Management to update the master plat when there are changes in the contours of land along a river.
“Many individuals refrain from doing it due to the constant movement of that river,” he stated. “Owning land along a river can result in losing it completely, but it can also lead to substantial gains.”
—Amanda Eggert, Reporter
Following the Law ⚖️
Once again this week, the 2021 Legislature’s influence loomed large over Helena, reigniting a discussion among Republican lawmakers about the constitutional control over Montana’s university system.
The current jurisdictional tug-of-war between legislators and the state’s seven-member Board of Regents ties back to a pair of bills passed by Republicans last session. House Bill 102 gave students the ability to carry concealed firearms on state campuses, and Senate Bill 349 barred campus officials from taking action against student groups based on the groups’ religious or political beliefs. The Board of Regents promptly challenged HB 102 in court, arguing that in approving the law the Legislature infringed on authority granted to the regents by the Montana Constitution. SB 349 was one of four bills swept up in separate litigation on similar grounds by more than a dozen plaintiffs — the Board of Regents not among them.
Fast forward to March 13, when the House Judiciary Committee heard testimony on the current Legislature’s House Bill 517, a proposed constitutional amendment that would allow lawmakers to mandate campus policies related to student rights and civil liberties. Republicans on the committee routinely invoked the legal challenges to 2021’s HB 102 and SB 349, with Rep. Braxton Mitchell, R-Columbia Falls, maligning what he called the regents’ “power grab over students.” Deputy Commissioner of Higher Education Kevin McRae and other HB 517 opponents countered that the framers of Montana’s Constitution placed campuses in the board’s hands to insulate them from the Legislature’s “fluctuating politics.”
The debate continued Wednesday as the Senate Education and Cultural Resources Committee weighed the confirmation of two regents appointed by Gov. Greg Gianforte. Lewistown native Jeff Southworth and student regent Norris Blossom were each questioned about the constitutional rights of students. In response, Blossom said that Montana students currently enjoy all the rights on campus that they enjoy off of them, and Southworth pushed back on the suggestion that in-state campuses restrict free speech activities to designated areas. The origin of those inquiries came into sharper focus when Sen. Keith Regier, R-Kalispell, asked Southworth whether Montana’s entire lawbook applies to campuses, or only to parts of them. Southworth asked for more clarity, noting that he’s not an expert on state law.
“The laws of Montana cover a wide range of regulations,” Regier stated. “They encompass everything from speed limits and taxes to determining the time we wake up in the morning.”
Southworth replied, “Without a doubt, yes. We acknowledge that we are bound by the law.”
The exchange skirted the deeper question raised in recent litigation: Can the Legislature pass a law dictating campus policy or practice? So far, the answer from Montana courts has been “no.” A district court struck down HB 102, and the Montana Supreme Court upheld that decision last summer. SB 349 was similarly overturned at the district court level and is currently on appeal to the state Supreme Court. In its opening brief last month, the state challenged the plaintiffs’ standing to litigate the issue, arguing that the only party rightly positioned to defend the Board of Regents’ authority is the board itself. The plaintiffs have not yet filed their response.
—Alex Sakariassen, Reporter
Dept. of Corrections
A graphic we published in the March 10 edition of the Lowdown on the history of Montana’s partisan political control mislabeled three past Montana governors as Democrats due to a production error (we did, however, manage to correctly shade the “D” next to their names in red). We swear that the error, which we regret and have corrected, has nothing to do with the fact that the Montana GOP declared last month that it no longer considers one of those former governors, Marc Racicot, a Republican.
A corrected version of the graphic is available here.
—Eric Dietrich, Deputy Editor
Hot Potato
Former Montana Supreme Court Justice Jim Nelson kicked a hornet’s nest this week when he referred to Republican efforts to reshape the judiciary as a “jihad,” a “fight to the death” and “a war perpetrated by the supermajority Freedom Caucus, the Legislature, the governor, and the attorney general.” (The Montana Freedom Caucus does not hold a majority in the Legislature).
Nelson, who was selected for the high court by Republican Governor Marc Racicot in 1993 and retired in 2012, delivered the comments during a rally held in the Capitol rotunda on Wednesday. The event, organized by various nonprofit advocacy groups, aimed to protect Montana’s Constitution.
Republicans criticized Nelson’s comments in subsequent press releases this week, accusing him of seemingly supporting political violence.
The GOP legislative leadership expressed concern and dismay over the usage of violent language by a former Montana Supreme Court justice. They specifically mentioned the inclusion of specific elected officials in his comments about a ‘fight to the death.’ In their statement, they strongly condemned Justice Nelson’s violent rhetoric and appealed to all Montanans to refrain from incorporating violence in politics.
Sen. Kenneth Bogner, R-Miles City, took particular issue with Nelson’s “jihad” metaphor.
Bogner, a Marine Corps veteran who fought in a war, including against jihadists during two tours in Iraq, strongly disagrees with the notion that political differences in Big Sky Country can be compared to war or jihad. He emphasizes that such a comparison is not only incorrect but also worrisome.
Republicans’ two-thirds legislative supermajority means they can place constitutional amendments on the ballot for consideration by the voters in the 2024 election without needing the support of Democratic lawmakers. And the Constitution — or the courts’ interpretation of the Constitution — has on certain issues repeatedly stymied Republican policy goals, especially in regards to abortion. Nelson was the primary author of the Montana Supreme Court’s 1999 Armstrong decision, which held that the state Constitution’s broad privacy provisions protect access to abortion.
Since the start of the session, the GOP has recognized this ongoing issue. However, they have not taken significant action to address it. In the first half of the 2023 session, Republicans presented just seven amendment proposals, and one has already been set aside in committee. Nevertheless, numerous additional proposals are currently being drafted and lawmakers have indicated that such bills may receive greater attention in committee rooms going forward.
Rep. Bill Mercer, R-Billings, has identified at least one proposed amendment providing for gubernatorial appointments of Montana Supreme Court justices — the latest in a slate of GOP-backed judiciary bills this session. Any amendment would need to not only gather 100 votes across the Legislature, but also receive approval from voters.
There are several other amendment ideas currently in the draft stage. These include proposals to establish a constitutional right to hunt and trap, a right to carry a concealed firearm, an amendment granting rights to fetuses at any stage of development (referred to as a “personhood” amendment), a mandate for legislative approval of new redistricting plans, and various other suggestions.
“I find it a little unusual that you hear so much about the threats to democracy and all of a sudden you have the chance of the people to engage in democracy and have a voice in what their Constitution and what their government looks like, and all of a sudden you have all these people like Racicot and others that say it’s bad for the people to decide what their government looks like,” Senate Majority Leader Steve Fitzpatrick, R-Great Falls, said in a press conference this week, referring to Racicot’s outspoken criticism of his party’s actions.
In his speech, Nelson discussed the broader aim of altering and increasing partisanship within the state’s court system, which he criticized as a “power grab” intended to elevate the Legislature to the status of an “all-powerful branch” within the state government. This theme builds upon the events of the 2021 session, during which lawmakers granted Republican Gov. Greg Gianforte unrestricted authority to appoint judges for vacant positions. Subsequently, a prolonged conflict arose between the legislative and judicial branches regarding judicial transparency and the Legislature’s power to issue subpoenas.
“In this moment, my dear friends, the battle has commenced,” declared Nelson during his speech. “Every one of us has a role to play: we must reach out to our legislators, we must compose letters to the editor, we must gather and unite, and above all, we must never overlook what is at risk – nothing short of our constitutional tripartite government. Three branches, each with equal status, equipped with separation of powers, checks and balances, and a meticulous commitment to the rule of law.”
When contacted via email on Friday, the ex-justice expressed firm conviction in his statement, stating that he has no regrets about the way he articulated his thoughts. He asserted that the Republican party is actively engaged in a conflict against the judiciary, the LGBTQ+ community, individuals with limited financial resources, those who engage in drag, individuals seeking abortions, and various other groups.
He reaffirmed his statement, stating that the conflict is rooted in the GOP’s aim to establish a white Christian Nationalist government at both the federal and state levels. This assertion characterizes the battle as one driven by religious ideology – specifically, white Christian Nationalism – which aligns with the concept of a jihad. Consequently, he stands by his original remarks.
Upon his departure from the rally, he observed individuals peacefully collecting their belongings and departing, he further added.
He expressed surprise at the fact that the citizens did not gather their knives, guns, tear gas, baseball bats, and ransack the Capitol.
—Arren Kimbel-Sannit, Reporter
On Our Radar
Amanda — Recent stories about Wyoming’s venture into cloud seeding to increase snowpack and streamflows led me to an in-depth story on cloud seeding’s efficacy and consequences. It’s something that’s fascinated me since Montana lawmakers declined to change state law governing the practice in 2021.
Alex — During the COVID-19 pandemic, federal officials expanded numerous food assistance programs in an effort to help struggling Americans, including K-12 public school students. But those expansions are gradually expiring, and as the Guardian reported this week, the latest reduction is poised to hit low-income families hard.
Eric — From the annals of world-class scientific inquiry: a research project that straps GPS trackers to outdoor house cats and maps how far they roam. My favorites: Lupe, Shadow and Nikki.
Mara — I got to take a break from legislative coverage last week to attend the Association of Health Care Journalists’ annual conference, where I geeked out on a lot of impressive reporting from outlets around the country. Some of my favorites include articles on medical debt, maternal mortality and jail conditions for people with mental illness.
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