Letter to Ventura

The Honorable Jesse Ventura
Governor
State of Minnesota
130 State Capitol
75 Constitution Avenue
St. Paul, Minnesota 55155

RE: Proposed Executive Order Affirming the Government to Government Relationship with Indian Tribal Governments

Dear Governor Ventura:

I am writing to express my concern regarding the proposed Order which you are apparently scheduled to sign on October 16, 2002 affirming the government to government relationship between the State of Minnesota and Indian tribal governments. The Order furthers the agenda of tribal governments that are contrary to the policies of your administration and the State’s agencies, and supports an expansive tribal government agenda that is controversial and contrary to the interests of both tribal members and non-members.

I represent both tribal members and non-tribal members in various Indian law matters. My clients include William J. Lawrence, publisher, Native American Press and Proper Economic Resource Management, Inc., a Minnesota non-profit corporation, and Citizens Equal Rights Foundation.

The proposed Order “recognizes the inherent sovereignty of Indian tribes.” The “sovereignty” of Indian tribes is determined by federal law. Since the decisions by Chief Justice John Marshall in Johnson v. McIntosh, 21 U.S. (8 Wheat) 543(1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) tribal governments have never had true or full sovereignty. These three cases became known as the “Marshall Trilogy” and held that Indian tribes were “domestic dependent nations that lack external powers”. Cherokee Nation at 17. The Marshall Trilogy found that the Cherokee Nation was a distinct community, occupying its own territory, in which the state laws could have no force and which citizens of the state had no right to enter except with the consent of the Cherokees themselves or under treaties or acts of Congress. Worcester at 562-63. Historians recognize that these decisions precipitated a constitutional crisis between the Supreme Court, President Andrew Jackson and the State of Georgia that became one of the great constitutional crises in the nation’s history. President Jackson was quoted as stating that “[Chief Justice] John Marshall has made his law; now let him enforce it.” See, Felix S. Cohen, HANDBOOK OF FEDERAL INDIAN LAW, pp. 81-83 (1982 Edition).

The Supreme Court, not surprisingly, held in 1992 that “the platonic notions of sovereignty” which had guided Chief Justice Marshall in Worcester v. Georgia have lost their independent sway over time. County of Yakima¸ 502 U.S. at 257. The Court noted that its “more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and implicitly, civil) jurisdiction over non-Indians located on reservation lands. We have even observed that state jurisdiction over the relations between reservation Indians and non-Indians may be permitted unless the application of state laws ‘would interfere with reservation self-government or impair a right granted or reserved by federal law’.” Id. at 257-258. This is a recognition of state jurisdictional power even in the absence of Public Law 280.

Very recently, the United States Supreme Court recognized that the contradictory “sovereignty” holding from Worcester no longer prohibited state regulatory authority on reservations.

“Our cases make clear that the Indians’ right to make their own laws and being governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation’s border. Though tribes are often referred to as ‘sovereign’ entities, it was ‘long ago’ that ‘the court departed from Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservation boundaries...‘Ordinarily,’ it is now clear, ‘an Indian reservation is considered part of the territory of the state.’” Nevada v. Hicks, 121 S.Ct. 2304,2311 (2001). For example, the Court has held that while tribal governments cannot tax non-Indian commercial activities occurring on non-Indian land within the boundaries of a reservation, Atkinson Trading Company, Inc. v. Shirley, 532 U.S. 645 (2001), state governments can tax lands that even a tribe privately owns, even if it is arguably within a reservation. Cass County vs. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998).

Despite these changes in federal law, tribal governments in Minnesota have continued to assert that the reservations that were disestablished (or at a minimum greatly diminished) by the Nelson Act continue to exist to the limits of their original boundaries. Mille Lacs County is engaged in litigation today with the Mille Lacs Band over this very issue. See County of Mille Lacs v. Melanie Benjamin, et al, United States District Court, District of Minnesota, Civil No. 02-407, currently pending before Judge Rosenbaum. The Grand Portage Band brought suit against a non-Indian who operated a marina on privately owned land within the exterior boundaries of the original Grand Portage Reservation, claiming that he had to comply with their zoning laws. The Band claimed that they had “wide authority – both as a result of inherent sovereignty and the right to exclude -–to regulate commercial and tax activities within the reservation.” The Band claimed the right to require Melby to have a business license and to tax his commercial activities, and that these powers sprung from inherent tribal sovereignty and the right to exclude Mr. Melby from the reservation as an act of sovereignty. See, Grand Portage Band of Chippewa v. Carroll Melby, Memorandum Opinion and Order, App. 99-001, Feb. 15, 2000. Put simply, the Band claimed the right to tax Mr. Melby although he could not participate in tribal government, even though he was conducting a business on his own land that he operated subject to state and county regulations and taxing authority. The concept is known as “taxation without representation.” Similarly, the Band claimed the right to exclude Mr. Melby “as an act of sovereignty”. In other words, if he did not like it, the Band had the power to evict Mr. Melby from his privately owned land, business and home.

It is not a wild fantasy that tribal governments would seek to exclude a non-member from private lands, including their home, on a reservation. See, Margaret Penn v. United States of America, United States District Court for the District of North Dakota, Southwestern Division, Case No. A1-00-93, appeal pending before the 8th Circuit at Nos. 02-1731 and 02-2267. In that case, a woman working in a battered women’s shelter was evicted by an ex parte tribal court order (absolutely no hearing) enforced by the county sheriff and the BIA, evicting her from her place of work and her home located on private land for fifty (50) days.

Another problem with recognizing the “sovereignty” of tribal governments is that the tribal governments in Minnesota are seeking to exercise judicial powers over their members and non-members even though the tribal constitutions do not provide for tribal courts (except arguably at Red Lake), and do not provide for an independent judiciary under a constitutional separation of powers. As a result, tribal members living on reservations in Minnesota are the only citizens of the United States and the State of Minnesota that are not protected by the Bill of Rights and the constitutional protections afforded by the State and Federal Constitutions. Justice Souter, in his concurring opinion to Nevada v. Hicks, recognized that reality. Id. at 121 S.Ct. 2323. The Indian Civil Rights Act of 1968 was designed to extend some of the Bill of Rights safeguards to tribal members, but the reality is that these rights have not been protected, particularly where tribal judges are not truly independent, but are controlled by the political branches of government. Id. For example, in the Melby case from the Grand Portage Reservation referenced above, the original plaintiff in the lawsuit against Mr. Melby, who was then the land use administrator, later became a member of the tribal council and participated in selecting the judges who sat on the Grand Portage Court of Appeals to hear the appeal of the decision by Mr. Melby. The impact on tribal members, however, has been even more difficult because tribal courts are routinely used as an instrument of the political faction that controls the tribal council. Individuals who are qualified for tribal membership are denied membership which is enforced by the tribal court, hearings are not held on matters that the court finds inconvenient, no record is often made of hearings, court decisions are oftentimes not published or made available to the public, and in short there is little or no accountability.

When we look to the areas of interaction between state agencies and tribal governments we see continuing problems. The Mille Lacs Band continues to assert that it has co-management authority over the Mille Lacs fishery, even though when the Protocols were negotiated between the Mille Lacs Band and the State of Minnesota, the State expressly reserved management authority. The tribe was allowed to manage its harvest to stay within its allocation of the fish the Band was entitled to take under the treaty rights established through the Courts, but the State retains overall management authority. Nevertheless, the Mille Lacs Band continues to assert this co-management authority with the result that the walleye fishery at Lake Mille Lacs was a resource management failure this year. In order to allow the Bands to harvest up to 100,000 pounds (the Bands have never taken more than 50,000 pounds), the State implemented a 2 inch slot limit with the result that state anglers were able to keep about 160,000 pounds of walleye while an estimated 200,000 pounds of walleye died following catch and release. Allowing four walleyes to die in the lake for every one the Bands take does not seem to be sound management, and yet the Band is insisting that the angler harvest should be further restricted. You may want to consult with Ron Payer, the Fisheries director at the DNR, and the DNR Commissioner on
these matters.

The bottom line is that tribal governments that do not have the basic constitutional structure that provides for a separation of powers and which do not afford even their own members their full civil rights now are seeking full sovereignty recognition by the State of Minnesota. We do not act in the best interests of the Indian people when we act to support tribal governments under these circumstances. An Executive Order along the lines you have proposed may be appropriate once reforms have been made within tribal governments and once the issues of tribal versus state jurisdiction have been worked out to the satisfaction of each party. What this Order will do, however, will further embolden tribal governments to assert jurisdiction over non-members and over non-member lands. Tribes will seek to limit state jurisdiction over matters occurring on reservations even though the Supreme Court has recognized state jurisdiction in many areas and Public Law 280 stands as Congress’ extension of Minnesota state jurisdiction over reservation lands. Most importantly, the Indian people are routinely denied their civil rights. When there are not effectively functioning governments that protect the rights of the individuals, the result is the continuation of a cycle of poverty and despair from high unemployment, a lack of investment and a failure to apply tribal resources in the most effective manner to resolve these issues. Please bear in bind that the Indian people are also citizens of the State of Minnesota and they deserve your solicitude and protection also.

I would like to meet with you or a member of your staff at your earliest convenience to discuss these matters.

Very truly yours,
RANDY V. THOMPSON