As for the state paying tribal legal fees...

by Joe Fellegy

The question of who springs for costs incurred by the tribal side in their 1837 Treaty lawsuit was answered recently with the decision by Judge Michael Davis that the state should pay $3.95 million.

This column agrees with Rob Drieslein's Outdoor News editorial (Dec. 10, 1999) that the nearly $4 million dollars for tribal coffers should come from the state's general fund, not from the DNR kitty, and that the appropriation should come via a single uncluttered bill.

A mysterious aspect of this who-pays-tribal-legal-fees affair appeared to be the state's reported request that the Counties and Landowners pick up a share, like 25 percent, of the tab - a would-be major hardship for the Landowners, who through P.E.R.M. must raise their own bucks to pay their own legal debts. Without generous U. S. Justice Department contributions and casino revenues that encourage tribal legal adventures, and without tax dollars, the Landowners must chisel at their own debts through fundraising auctions, dinners, the sale of wildlife prints, and other hard work.

Why, if there was such a plan afoot, would the state advocate for further burdening the Counties and especially the Landowners? Was the state presentation to Judge Davis an attempt to punish these citizens for trying to defend their own interests? Or to discourage local governments and citizen groups from intervening in future state-tribal agendas?

During the Sando-Humphrey era, state officials involved in treaty matters appeared to regard sportsmen with a barely tolerant, even negative, air, fraternizing more with tribal politicos than with citizens who supported the state's case. Are we seeing more of this cold shoulder by state officials wanting Landowners and, by association, sportsmen, to pay?

DNR Deputy Commissioner Steve Morse says he is unaware of any DNR role in wanting to saddle the Counties and Landowners with more debt. As for the Attorney General's Office, reports in the Mille Lacs Messenger, Ojibwe News, and Outdoor News - with reporters or contacts who attended the Davis hearing and read the legal briefs - had suggested that the A. G.'s office asked that the Counties and Landowners pay 25 percent. But Bill Szotkowski, attorney in the A.G.'s office and close to the Mille Lacs case, says that's not exactly true, that the state merely observed that the state should not be responsible for all costs incurred by the bands, who also had to answer arguments made by other defendants, including the Landowners. (For example, the Landowners successfully made the case for no tribal harvesting on private property, and part of the tribal costs were expended in that area.) Also, the tribal plaintiffs had levelled all their claims against the state, and none towards the Counties or Landowners. A reading of the state's legal brief strongly cites expenses generated by other defendants, obviously including the Counties and Landowners.

Whatever the story here, public reaction included renewed cynicism and distrust towards the state. Why? Partly because citizens sense that state officials were disconnected from their own constituents during the treaty litigation. In reacting to the state having to pay tribal legal fees, Dennis Stauffer, the new DNR communications director, told the Pioneer Press, "This is what we feared and warned would happen when we went to court in the first place." Hint-hint: The DNR believes the goat in this treaty rights stuff, the state's real opponent, consists of the Counties, the Landowners, and others who felt that the case deserved the court test - certainly not the tribal side with its jurisdictional agendas.

Stauffer told the Pioneer Press, "We have been a good soldier on this and done what we were told to do. We certainly made what we thought were heroic efforts to settle this without going to court." Hint-hint: The state hung its hat on that settlement and still holds something against those who challenged it.

Stauffer did not describe the state's "heroics," or lack of them, in defending state interests in the litigation or in the related political arena. In fact, in its much heralded "settlement" effort of the early '90s, the state embraced the tribal agenda - recognition of 1837 treaty rights, tribal "co-management," a division of resources, a state recognition of the old Mille Lacs Indian Reservation - a big issue these days - and the cordoning-off of Lake Mille Lacs for a "tribal exclusive zone," etc., all neatly packaged for Judge Diana Murphy's signature.

Who knows what the costs of that whole package might have been? Maybe millions of dollars and many years of hassle and litigation!

Editor's Note:

(Most of this column first appeared in Outdoor News, Dec. 17, 1999)