Tribal jurisdiction and its effect on local government and equal rights
In past issues of the PERM Newsletter, we have written extensively on the issues surrounding the insistence by the Mille Lacs Band of Chippewa, that the Mille Lacs Indian Reservation continues to exist as established by the Treaty of 1855. In addition to the issue of which government entity, tribal or non-tribal, has primary jurisdiction to implement EPA environmental regulations within the former reservation boundaries, issues of who has civil regulatory power, the tribe or the local government, are also arising. Despite a U.S. Supreme Court decision which states the Mille Lacs Reservation no longer exists, the tribe has been able to push its agenda forward. The Mille Lacs Band has commenced building projects on fee land within the former reservation without applying for and receiving the necessary county permits. They claim they are not bound by county regulations within the old 61,000 acre reservation.
Mille Lacs is not the only area in Minnesota where this is happening. According to a letter from Ann Schoenborn in Waubun, Minnesota, to the Native American Press/Ojibwe News on 2/25/00, the White earth Band has been working on a plan outlined in a 28 page legal memorandum concerning U.S. Supreme Court decision Brendale v. Yakima Nation. The document, written by tribal attorneys for tribal officials, describes what needs to be done to gain control over all people on an Indian reservation. In addition, the White Earth Band Tribal Court Project informational booklet discusses at length the control the tribes will have after Minnesota does away with Public Law 280, which gives the State of Minnesota criminal (and arguably civil) regulatory authority on all land within its borders, except on the Red Lake Indian Reservation.
Similarly, a recent ruling by the Grand Portage Band's Appellate Court in the Keck Melby case clearly defines what the current reality is, at least from the tribal point of view. (See Melby story in this issue.)
The commissioners from Mille Lacs County have been divided on how to address the assertions by the tribe with regard to the reservation and the jurisdictional issues tied to it.
The following is a letter PERM received from Frank Courteau, Mille Lacs County Commissioner from Onamia. Please take special note of his closing paragraphs. Get involved, learn the facts and let your elected representatives at all levels of government know your views. As President Abraham Lincoln said, "To sin by silence when they should protest, makes cowards of men."
I'm hearing a lot of people say they are getting more and more confused about what the Mille Lacs Band can, can't, or won't do in terms of their governmental jurisdiction. I am especially concerned about what will happen in the future. Not long ago, the Mille Lacs Messenger quoted the new county attorney for Mille Lacs County when she said, "Even if the reservation was 61,000 acres, even if the Band sued us and won, the grand-prize trophy is the ability to regulate Indians. They still can't tax you; they still can't prosecute you; they still can't regulate you." You, in this case means a non-band member within the former reservation boundaries.
The United States Department of Interior and the Mille Lacs Band have both clearly stated a position that the old reservation continues to exist today as originally established in the Treaty of 1855. The Bureau of Indian Affairs has stated that, "An Indian tribe has the inherent right to exercise civil jurisdiction within the territory it controls, including the power to tax." The U.S. Supreme Court has ruled that, "Indian tribes have authority to regulate activities on non-Indians that affect the tribe's political integrity, economic security, or health and welfare." The court has also said that tribes possess, "a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest." The current Chief of the Mille Lacs Band, Marge Anderson, has said, "The United States agreed that our tribal government would exercise sovereign authority within our reservation boundaries." She also said the Band has the, "right to regulate all matters impacting the Mille Lacs Reservation, including: civil regulatory jurisdiction, environmental jurisdiction, taxation and land use." A recent Band brochure states, "As a sovereign nation, the Mille Lacs Band has the authority to govern its people and its territory."
The foregoing suggests the Mille Lacs County Attorney has at least some disagreement with the positions outlined by both the Band and the United States Government. I believe this is confirmed by the Band's own attorney who recently wrote a letter that appeared in the 2/23/00 Mille Lacs Messenger, in which the attorney says, "We disagree on some issues." There certainly are at least clouds of questions. Several things, however, are and remain clear. Land status is the basis of determining the boundaries of a government's sovereignty, regardless of what government is involved, and tribal jurisdiction is directly tied to reservation and trust lands. Accordingly, if the reservation does not exist, then the Band has no jurisdictional rights over non-members, period. But if the reservation is considered to still exist, then the band does indeed have a claim to legal jurisdiction over non-members in some instances. The U.S. Supreme Court has said so, and the County Attorney is wrong to suggest otherwise.
The County Attorney has focused only on the CURRENT actions of the CURRENT tribal government as part of the CURRENT factual scenario. She disregards the positions stated by tribal leaders, and the trend toward more tribal authority across the country and here in Minnesota. She has down-played the jurisdictional significance of the reservation status and has announced that she will be foregoing law enforcement of county zoning laws on fee lands owned by the Mille Lacs Band. This is a short-sighted attempt at appeasing the Band.
What about tomorrow? Is the Band's will to exercise their jurisdictional rights likely to change as they grow stronger, as the reservation boundary issue becomes more settled in their favor, as their land base becomes ever larger, as their leadership becomes more aggressive? After all, the Band has stated plainly that they believe they have these powers, but they have no CURRENT plans to exercise them. Certainly today's circumstances are not likely to be tomorrow's reality. The County Attorney herself has conceded that "The factual scenario certainly could change...the Band could also buy up a lot more land." Well, gee whiz, does anyone really think that might happen? It should be clear given the reality of the situation that the reservation boundary status is very important. Certainly any County concession on jurisdiction today will likely be viewed tomorrow by some as a measure of proof that the County has already acknowledged the old 61,000 acre reservation still exists. It may be a difficult task at that time to convince anyone that if it has walked like a duck, and quacked like a duck, it really is a chicken! In other words, the issue will have become more settled in the Band's favor.
The County Attorney has essentially, and apparently unilaterally, conceded county sovereignty to the Mille Lacs Band, at least as it relates to zoning on fee lands owned by the Band. This concession she has made on behalf of the County, if it stands, will become the bottom line. By not enforcing zoning laws equally, but rather by who owns the property, the County Attorney, and by extension, the County Government, is treating the reservation like it continues to exist. There is little wonder the Band is so supportive of the position taken by the County Attorney. If the County treats the reservation like it still exists, then it will still exist. And if the County is willing to concede jurisdictional authority on zoning, why shouldn't it likewise be willing to concede on environmental matters, or for that matter, all civil regulatory matters in the former reservation with respect to the Band or Band members?
The County Attorney largely focuses on the Band's jurisdictional authority with respect to non-Indians. However, if the County treats the reservation like it still exists, then what about the state and county jurisdictional authority with respect to to Indians on the reservation on all matters considered civil regulatory in nature (ie. zoning, wetlands violations, driving without a license or insurance, speeding etc. etc. etc.)? The answer to this question is that if the reservation is recognized, the State, County, three townships and three cities will lose jurisdiction over Indians on anything considered "civil regulatory" in nature. This will create significant problems and raises many, many questions. However, one thing is certain: on the reservation different sets of laws apply and they are enforced and adjudicated differently depending upon one's race. This was known as apartheid in another place, at another time. I know from experience that apartheid is wrong. For the County to allow it, when it could fight to keep it from happening, especially when it has a good legal case for doing so, is wrong too.
Indeed, by conceding on rather minor zoning issues, ones I believe carry significant jurisdictional importance in terms of carry-over affect, the County Attorney has put the County, and especially the people living within the boundaries of the old (current?) reservation, on a very slippery slope. The County Attorney has said that "It would be a waste of the taxpayer's time and money to litigate such an issue over a state misdemeanor prosecution." I vehemently disagree with her reasoning and the conclusions she has reached. She should reconsider.
In 1913, the U.S. Supreme Court ruled in U.S v. Mille Lacs Band of Chippewa Indians that the Nelson Act agreement with the Mille Lacs Band, "contained an express assent to all provisions of the act of 1889, and an express relinquishment of the lands of the Mille Lacs Reservation."
In closing, I want you to know that I believe deeply in democracy. It's defined by my dictionary as, "A state of society characterized by formal equality of rights and privileges." I believe we agree that democracy is not a spectator sport, and that it is in danger in our community. I think we also agree that people must actively participate if democracy is to work and be maintained. While I am committed to fight for my beliefs, I can not petition myself. It is the role of the people to petition and control their government. I believe the will of the people will ultimately prevail on this issue....but only if the people rise above indifference, determine to persevere, and effectively communicate their collective will to those who serve them in their government.
Mille Lacs County Commissioner
10654 390th Street
Onamia, MN 56359