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Paul law professor to hear
Las Vegas Paiute appeal by Clara NiiSka Mary Jo Brooks Hunter, Associate Clinical Professor at Hamline University School of Law in St. Paul, is one of the three judges appointed by the Las Vegas Paiute tribal council to hear a controversial tribal court appellate case of the Las Vegas Paiute tribal court, Krishna Terry Carpenter, et al. v. Las Vegas Paiute Tribal Council. Brooks Hunter has also served as an appellate judge for the Turtle Mountain Chippewa tribal court, the Nebraska Winnebago tribal court, and the supreme tribal court of the Ho-Chunk Nation, formerly the Wisconsin Winnebagos. She is an enrolled Ho-Chunk member. Brooks Hunter declined to be interviewed by Press/ON, refusing to answer even general questions about her understanding of tribal courts and the present legal system on U.S. reservations. She did provide photocopies of two of her published articles, one of them a brief overview, “Tribal courts in Minnesota,” written with Anita Fineday for the Minnesota State Bar Association in 1999. That article and the other, entitled “Tribal court opinions: justice and legitimacy,” raise additional questions, some of which this writer emailed to Brooks Hunter. She had not responded by press time. Robert Clinton, Professor of Law at Arizona State University in Phoenix, has also been appointed in the Carpenter et al. v. Las Vegas Paiute Tribal Council case. He is the chief justice of the Winnebago supreme tribal court, an associate justice of the Cheyenne River Sioux tribal court of appeals, and has written extensively on federal Indian law and policy. The third appellate judge is Paiute from northern Nevada. Although Brooks Hunter and the other appellate judges were appointed by the Las Vegas Paiute tribal council to hear one case, the tribal council’s Las Vegas attorney, David A. Colvin, emphasized that they were “not hand-picked.” The tribal council is also represented at by least three attorneys from the Minneapolis law firm Dorsey & Whitney. Disenrollment in Las Vegas Carpenter et al. v. Las Vegas Paiute Tribal Council arises from the Las Vegas Paiute tribal council’s disenrollment of about a quarter of the membership in what the appellant’s brief describes as ex parte proceedings in June and July 1999. (Black’s Law Dictionary defines ex parte as, “on one side only, by or for one party; done for, n behalf of, or on the application of, one party only.”) The Las Vegas Paiutes own a smoke shop in Las Vegas, as well as other tribal enterprises including an “upscale golf and resort development” at Snow Mountain. In May 1999, each tribal member was receiving a per capita payment of $5,845 per month. (Disenrolling 25% of the membership means that the remaining members get a corresponding raise in their per capitas.) According to one of the expatriate Las Vegas Paiutes, Debra Faria, in 1999 the tribal council is dominated by one family. On July 6, 1999, the tribal council passed a resolution that, “the meaning of Paiute Indian Blood has consistently meant ancestry derived from Southern Paiute Blood,” and that “all enrollment applications past and present are being reviewed to ensure all enrollment requirements have been met.” The tribal council “corrected” Indian blood quantums under the redefined—or according to the tribal council “clarified”—enrollment criteria. For example, Manuel Lopez, who was born in 1906, worked as a miner, and died in an explosion in 1930, was transformed from “Indian” to “non-Indian” on the Las Vegas Paiute rolls. Documents obtained by Press/ON indicate that his mother, Saturnina, was “4/4 Paiute-Chemahuevi.” Manuel’s descendants, along with those of his brother Anthony, were among those disenrolled. In a letter dated July 23, 1999, they were notified by certified mail that their “tribal membership with the Las Vegas Paiute Tribe is hereby terminated, effective immediately.” There is a poignant irony to the disenrollments. Although the Las Vegas Paiutes had lived in a “colony” on the outskirts of downtown since the early 1900s, they were not federally recognized until 1970. The tribal council disenrolled individuals federally-recognized as Las Vegas Paiute Indians twenty-nine years earlier. The present tribal chairman, Curtis Anderson and his family, on the other hand, had been enrolled in the Indian Peaks Band of Paiute Indians of Utah. Expatriate Las Vegas Paiute Debra Faria posted documents on her website, http://www.paiutecorruption.com/, indicating that Curtis Anderson was involved with Indian Peaks Band affairs as late as 1981. The expatriate Paiutes’ assert in their appellate brief, on the other hand, that, “the loss of their membership in the Las Vegas Paiute Tribal Rolls cannot be appreciated unless one considers that the Expatriate Members’ ancestry, heritage, life commitments, cosmology and the fact that they identify themselves under no other appellation. They are Las Vegas Paiute Indians whether the current Tribal council acknowledges that fact or not.” According to the expatriates’ attorney, “the BIA does not recognize the disenrollments.” Under the Indian Reorganization Act (IRA), the Secretary of the Interior retains authority over tribal councils organized under THE IRA. The Las Vegas Paiutes’ tribal constitution provides that the tribal council’s exercise of power is “subject to limitations imposed by the laws or the Constitution of the United States.” Las Vegas tribal court The un-enrolled Indians went to tribal court—and won. In his June 2001 opinion, tribal court judge Terry Coffing, who also works as a Las Vegas attorney, concluded that, “by substituting the term ‘Paiute Indian Blood’ with ‘Southern Paiute Blood’,” the tribal council’s ‘clarification’ “effectively amends the Las Vegas Paiute Tribe Constitution in a manner not authorized under Article IX of the Constitution and is therefore unenforceable.” If the tribal constitution is to be amended, the tribal court ruled, a referendum would be required. The tribal council argued that the tribal court is “a legislatively created court with a limited jurisdictional grant”—the constitution and bylaws of the “Las Vegas Tribe of Paiute Indians” does not provide for the creation of a tribal court. The tribal court asserted jurisdiction over the case. When the tribal court found for Carpenter, et al.—the disenrolled Las Vegas Paiutes—the tribal council appealed. The tribal court “has no general authority to review acts of the Tribal Council, and certainly no authority to review Council actions to pass upon their constitutionality,” the tribal council argued in its appeal brief. In its reply brief, the tribal council expanded on its argument that tribal council authority was not subject to legal challenge in the tribal court. Attorneys for the tribal council quoted “noted Indian law expert” Felix Cohen’s observation, in the 1982 edition of the Handbook of Federal Indian Law, who observed that, “in practice, tribal courts are often subordinate to the political branches of tribal governments.” Without any apparent embarrassment, the tribal council wholeheartedly agrees: “The tribal court for the Tribe is no exception. As the Tribal Council pointed out in its opening memorandum, the tribal court is not a constitutionally created court. As such, it is not a co-equal branch of the Las Vegas Paiute Tribal government. Rather, it is a subordinate entity vested only with those powers given to it by the Tribal Council.” The Las Vegas Paiute constitution is among the few I.R.A. tribal constitutions which includes a Bill of Rights. Article I provides that, “no member shall be denied any rights or privileges enjoyed by other citizens of the United States, including but not limited to freedom of religion, speech, and conscience, due process of law,” and also incorporates the Indian Civil Rights Act into the tribal constitution. If “sovereign immunity” prevents the tribal court from reviewing actions of the tribal council, then presumably the applicable legal system for enforcing the rights guaranteed to Las Vegas Paiutes in their tribal constitution would be U.S. federal courts. Whether or not the tribal constitution implies a waiver of tribal council sovereign immunity is an interesting question. Does the “tribal sovereignty” of the tribal council negate the rights guaranteed to tribal members in the tribal constitution, rendering them, as the expatriate Paiutes claim, “nothing more than `a right without a remedy. Such construction … ignores the mandate of the Supreme Court of the United States.” Banishment Expatriate Debra Faria, who grew up in the Las Vegas Paiute colony, reacted to what she says is an attack by a “corrupt” government on her identity as a Las Vegas Paiute Indian: by posting a website and by planning to demonstrate at a televised golf tournament held at the Las Vegas Paiute’s resort on October 9th, 2001. Tribal court judge Coffing issued a restraining order barring her from demonstrating on-reservation, so she demonstrated on the ‘white side’ of the reservation line. The tribal council responded by ‘indefinitely’ banishing Faria from the reservation, she says “for exercising my freedom of speech.” At press time, Faria was still banished: banned from visiting her friends and relatives who live on the reservation, as well as barred from the graves of her mother, grandmother, brother and other family members buried on the reservation. A St. Paul law professor Determination of the fate of Faria and the other expatriate Las Vegas Paiutes presently rests on the decision of an associate professor at Hamline University School of Law, Dr. Brooks Hunter, along with the two other specially-appointed tribal court appellate judges. Brooks Hunter has written that the “presence” of tribal elders validates “the importance of the creation of a tribal court system to reflect what is important to a particular tribe,” and cited as an example an individual “tribal elder” stating, in Ho-Chunk, that a judge of the tribal court of appeals need not disqualify herself even though she was closely related to both the lay advocate and the trial court judge. According to Brooks Hunter, “the tribal elder stated that the justice understood her role within her culture and her tribe,” and therefore her decision would be fair despite the close family relationships. Brooks Hunter also writes of “incorporat[ing] tribal custom and tradition” into tribal court decisions, and gives as an example a tribal court’s “utiliz[ing] a text written by an anthropologist” as a “neutral source” of information about tribal customs. The Las Vegas Paiute tribal court of appeals has not yet scheduled oral arguments in Carpenter et al. v. Las Vegas Paiute Tribal Council. The case merits watching. |
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