Courtroom comment triggers back-and-forth with tribe

A comment made during Montana’s recent election administration laws trial in Billings prompted a harsh rebuke from the Fort Belknap Indian Community last week directed at Montana Secretary of State Christi Jacobsen’s lead attorney, followed closely by an effort from Jacobsen’s office to resolve the situation.

The intense back-and-forth was triggered by a response to questioning from Secretary of State Christi Jacobsen’s chief legal counsel, Austin James, on the final day of the nine-day trial. In the course of cross-examining James, ACLU attorney Alex Rate — representing Fort Belknap and other tribal plaintiffs in the case — pressed James about the potential impact of a challenged law prohibiting paid ballot collection on Indigenous voters. The law carved out an exemption for employees at various levels of government, but testimony throughout the trial indicated the plaintiffs were unsure whether that exemption extended to tribal governments.

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“As you sit here today, you have no idea whether tribal governments are government entities within the meaning of House Bill 530?” Rate asked James on Aug. 25.

“I mean, in my opinion, they are not. But I, I don’t know,” James replied.

The final version of HB 530, signed into law by Republican Gov. Greg Gianforte in May 2021, specifically exempts state agencies, election administrators, election judges, public and private mail services and local governments such as cities, towns, counties and school districts. The law’s text does not mention tribal governments. Plaintiffs in the legal challenge to HB 530 and two other election administration laws passed by Republicans in the 2021 Legislature argue that barring paid ballot collection disproportionately affects voters in Indigneous communities due to longstanding issues including poverty, lack of transportation and inadequate postal infrastructure.

Fort Belknap Indian Community President Jeffery Stiffarm sent a letter to Jacobsen’s office Aug. 31 criticizing James’ courtroom remarks as “inexcusable.” Stiffarm stressed the myriad ways in which state and federal governments have affirmed the sovereignty of tribal governments, and expressed concern that someone in James’ official position is “not cognizant of basic principles of Indian Law.” His letter, which was also sent to Montana’s full congressional delegation, went on:

“When Mr. [Austin] James expressed his opinion that he did not believe that tribes were government entities, it was upsetting for two reasons: 1. His blatant ignorance is appalling; and 2. His use of his position of state legal counsel to advocate his personal opinion under oath borders, if not, crosses the line of ethical responsibilities and representation.”

Stiffarm further suggested that if James’ “unprofessional and deeply offensive” statement was made out of ignorance, James should reach out to Montana’s tribal communities to gain a better understanding of tribal government issues.

“If advocating his personal opinion while representing the State of Montana and under oath was intentional, then the problem is bigger than it appears, as ethical matters should be taken very seriously,” Stiffarm concluded. “In any event, the people, including Indian tribes, and the government of Montana deserve better.”

James followed up personally on Sept. 2 in an email to Stiffarm and congressional offices thanking Stiffarm for “bringing this misunderstanding to my attention and allowing me the opportunity to clarify.” In a three-page letter attached to the email, James wrote that his comment was intended to reflect his opinion that tribal governments would not be subject to HB 530’s ban on paid ballot collection. He noted that he’d affirmed that belief under questioning from defense attorneys in the case, and appended a highlighted section of the trial transcript showing his answer. 

“When I read your letter, the notion that my purported belief was the opposite, which as you correctly pointed out, would be a deeply unprofessional and offensive perspective, my heart sank,” James wrote.

James similarly included the portion of the transcript containing the triggering remark from his cross-examination. He suggested that it was perhaps that “unfortunate exchange” with Rate that led Stiffarm to the “misunderstood belief that I held out an inexcusable and erroneous opinion regarding the legitimacy of tribal nation government and sovereignty.” James went on to elaborate that because Jacobsen’s office has not yet started the process of adopting administrative rules clarifying the terms of HB 530, it is “impossible to definitively answer” whether those rules will ultimately include a definition of exempted government entities that includes tribal governments.

James concluded his letter by expressing his desire to meet with members of the Fort Belknap Indian Community, to earn their trust and “belief in me as a friend,” and to make sure Stiffarm has “no doubt” about his views on tribal governments.

“I give you my word to reach out to every Tribe,” James wrote. “I consider it a duty and a privilege as a Montanan, let alone a representative of the State, to learn as much as possible about tribes and the issues pertaining to Indian country.”