Tribal regulation and intimidation at Grand Portage

by Brett Larson

With the Supreme Court decision on the 1837 Treaty behind them, supporters of Proper Economic Resource Management (PERM), the fundraisers for the landowners' court cases, have shifted their focus from the 1837 Treaty to larger questions of tribal sovereignty, jurisdiction, and boundary questions.

Marking this shift was the appearance of Grand Portage business owner Keck Melby at PERM's annual spring fund raiser on April 25 at Smokin' Hill. Melby was on hand to tell the large crowd about his jurisdictional battle with the Grand Portage Band of Ojibwe.

Melby owns a resort on the shore of Lake Superior, within the boundaries of the Grand Portage Reservation. The property has been in his family since 1966, and it has a long history as a commercial property, Melby said. In the early 1990s, Melby, a 30-year veteran of the armed forces, returned to the Grand Portage area to run the resort.

Melby's troubles with the Grand Portage Band began in 1992, when he tried to add some docks to his resort. The DNR and MPCA supported the permit, but Army Corps of Engineers wavered, and the Grand Portage Band staged a protest on land and water to oppose the expansion of the resort.

Later, Melby tried to extend his permit to dredge his marina, which was also opposed by the band. Melby told the crowd that his marina serves as a refuge to boats in the area that get in trouble.

After the dredging incident, Melby decided to erect a pole building where he could store and work on boats. Cook County zoning laws require that a building be 50 feet from the lakeshore, while the Grand Portage band's ordinance requires a 100-foot setback. Melby built his building 85 feet from the shore and was served with a summons from the band that he had to apply for a permit.

 

At that point, Melby got in touch with Mark Rotz of PERM, and Gary Persian, a lawyer who represented the landowners in the 1837 Treaty case. Persian told Melby to press on because the band did not have a right to require him to apply for a permit.

Melby said that applying for the permit would have meant he was admitting that the band had authority over him, which he contends it does not.

Melby ignored the summons and went ahead with the building. The band responded with another summons, saying he had 20 days to tear down the building, or he would be charged $200 per day.

At that point, Melby filed suit in federal court, contending that he was not subject to regulatory or adjudicatory authority of the band, and that the reservation was disestablished by the Nelson Act.

The judge ruled that Melby had not exhausted all remedies and sent him back to tribal court. The ruling from tribal court was that Melby was subject to the band's regulatory authority.

Melby is now seeking other remedies. He recently had a two-hour meeting with a member of the staff of Attorney General Mike Hatch. He asked members of the crowd to express their support by calling the attorney general's office and saying, "Whatever happens in that case is going to have a direct effect on us." Melby was referring to the Mille Lacs Band's claim that the 61,000-acre reservation boundaries described in the Treaty of 1855 continues to exist, and to citizen's fears that the band will attempt to tax or exert regulatory authority over non-Indians within the 1855 boundaries.

Editor's note: Not only does Keck Melby's case highlight concerns about who controls environmental regulation like shoreline setbacks, it raises much deeper Constitutional questions as well, Keck has spent several thousand dollars trying to fight for basic principles of private property and no regulation without representation. Some of the same principles he gave 30 years of his life protecting through service in the military. Now his own government will not stand along side him to protect these ideals fundamental to our Constitution. His local government will not join him in defending their jurisdiction. The State of Minnesota has shunned him, and the Federal Government has in fact put it's might behind the Tribe.

According to government records, the Grand Portage Reservation was disestablished, or at a minimum, diminished in the late 1800's by Congressional action. Keck's property is located on former reservation land. He and his predecessors, including the original Indian owner, have been paying taxes to Cook County and the local government for about 100 years. He has followed all the rules and laws governing a citizen of Cook County, the State of Minnesota and the United States of America. Now, as is the case elsewhere in Minnesota and across the Country, Indian tribes are reclaiming control and jurisdiction over their former lands. The Federal Government supports these claims, because they result in transfer of power from state and local government to the Federal Government, which has ultimate and absolute control of all tribal governments and their affairs. Is this all part of a broader assault on federalism and state's rights? Is this the ultimate con game in the battle to consolidate power in Washington D.C.?

The sad part is the lack of will by most politicians and bureaucrats at the state and local level, to stand up for their rights, as well as the rights of their citizens.

If you are interested in helping Keck, you can write to him at: P.O. Box 180 - Grand Portage - MN - 55605-0180. After all, if it can happen to him ­ it can happen to you!