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As my first gig right out of journalism school, my legislative fellowship with Montana Free Press and ICT has been incredibly insightful and overwhelming at the same time, and we’re only just barely halfway through the session.
The job? To cover the state Legislature’s American Indian Caucus for both MTFP and ICT.
The past month and a half I’ve been in Helena has led me down a road of constant uncertainty, excitement, curiosity and, at times, outright frustration. But literally every day I learn something new about the legislative process.
I come from the Blackfeet Tribe, and my reporting focus in school was Indigenous affairs. Prior to the fellowship, I had very little experience covering politics, so I didn’t know much about what I’d gotten myself into. It was intimidating.
Now, as I’m reflecting, I can better see the need this fellowship was created to address, and the importance of covering Native issues at the state level. I’m finally getting a grip on how bills come into being, and the hurdles they face on their way into law.
I think that’s why covering the Native caucus specifically is so valuable: to communicate the policies proposed by Indigenous lawmakers to the Montana communities that would be most affected by their passage, or their failure.
Native-oriented legislation in Montana hasn’t historically been covered as closely and consistently as the readers it impacts deserve. I believe this fellowship, and the ICT/MTFP partnership behind it, is a great step forward in closing that gap, but the state needs more Indigenous journalists in Helena — and all around the state — as well. I hope we’re laying the groundwork for a future in which Native voices are an unremarkably regular 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 jwagner@montanafreepress.org 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.
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.)
While the Otter Creek Ranch islands’ contours have changed over time — and will continue to change — the property boundaries involved with the FWP transaction were the original platted boundaries, Shenk said.
As the contours of land along a river change, landowners can have their property surveyed and ask the Bureau of Land Management to update the master plat, he added.
“Most people just don’t do it because that river’s going to move year-in and year-out,” he said. “You can own land on a river and lose it entirely. You can also gain quite a bit.”
—Amanda Eggert, Reporter
Following the Law ⚖️
The long shadow of the 2021 Legislature fell across Helena again this week as Republican lawmakers revived a debate about constitutional authority 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.
“I’m talking about the laws of Montana,” Regier said. “The laws, from speed limits to taxes to what time we get up in the morning.”
“Absolutely, yes,” Southworth responded. “We are not above 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 appointed to the high court by Republican Gov. Marc Racicot in 1993 and retired in 2012, made the remarks at a rally “to defend Montana’s Constitution” hosted in the Capitol rotunda Wednesday by an assortment of nonprofit advocacy groups.
In subsequent press releases this week, Republicans panned Nelson’s remarks and accused him of appearing to endorse political violence.
“We are alarmed and disturbed that a former Montana Supreme Court justice would engage in such violent rhetoric, including naming specific elected officials in his comments about a ‘fight to the death,’” GOP legislative leadership said in a statement. “We condemn Justice Nelson’s violent rhetoric and call on all Montanans to keep violence out of our politics.”
Sen. Kenneth Bogner, R-Miles City, took particular issue with Nelson’s “jihad” metaphor.
“I served two tours in Iraq fighting in a war, including against jihadists. Suggesting that political differences in Big Sky Country are in any way similar to war or jihad is as wrong as it is concerning,” Bogner, a Marine Corps veteran, said.
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.
The GOP has acknowledged that dynamic since the beginning of the session. But they haven’t done much about it: Republicans introduced only seven amendment proposals in the first half of the 2023 session, with one already tabled in committee. But dozens more are in various stages of drafting, and lawmakers have signaled that such bills could occupy more space in committee rooms from now on.
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.
Other amendment ideas in the draft stage include enshrining a constitutional right to hunt and trap, a right to carry a concealed firearm, a “personhood” amendment that would extend rights to fetuses at any stage of development, a requirement that the Legislature approve new redistricting plans and more.
“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.
Nelson’s speech focused more generally on legislative efforts to modify — and make more partisan — the state’s court system, which he branded a “power grab” designed to make the Legislature an “all-powerful branch” of state government. That’s a theme continued from the 2021 session, when lawmakers gave Republican Gov. Greg Gianforte unilateral power to fill judicial vacancies and then engaged in a protracted inter-branch conflict with the court system about judicial transparency and legislative subpoena powers.
“So, my friends, the battle has been joined,” Nelson said in his speech. “Each of us must do our part: we must call out legislators, we must write letters to the editor, we must assemble and rally, we must not forget what is a stake — nothing less than our constitutional tripartite government. Three co-equal branches, with separation of powers, checks and balances and the scrupulous adherence to the rule of law.”
Reached by email Friday, the former justice said he has “absolutely no second thoughts on the way I phrased my remarks.” He said the GOP is waging war against the judiciary, the LGBTQ+ community, the poor, people who dress in drag, citizens seeking abortions and others.
“It is a war grounded in the GOP’s determination to impose a white Christian Nationalist government at the federal and state levels,” he wrote. “And that makes this war one grounded in religious ideology — white Christian Nationalism — which is the very definition of a jihad. So I stand by my remarks.”
He added that after he left the rally, he saw people peaceably gathering their things and leaving.
“What I did not see was these citizens gathering up their knives, and guns, and tear gas and baseball bats, and ransacking the Capitol,” he wrote.
—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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