by Clara NiiSka

The Minnesota Department of Human Rights has a policy of dismissing charges of human rights violations against Indian casinos and other tribal entities when the Indian defendant responds to the human rights complaint with a defense of “sovereign immunity.”  Although the State asserts jurisdiction, and human rights complaints against Indian casinos and other tribal entities may be filed with the State Department of Human Rights, those charges are routinely dismissed.

Press/ON learned that the Department of Human Rights dismisses human rights cases involving tribal entities, and contacted the state agency.  Spokesperson Elaine Hanson explained that the department “does not dismiss for lack of jurisdiction,” but rather that the departmental policy was because of the “expenditure of resources” which would be required for the State to prosecute a human rights complaint against an Indian casino or other tribal entity.  “We have to pick our battles – we would undoubtedly use our entire litigation budget for several years fighting this out in court. … To spend the entire litigation budget on that, for the sake of resolving this in court, doesn’t seem like good stewardship.”

The authority of the Department of Human Rights derives from Minnesota Statutes § 363.  “The Minnesota Human Rights Act is silent” on issues of state-tribal jurisdiction, said Hanson.  There is an “assumption that there is jurisdiction” by the State.  “We tell people when they call” the Human Rights Department, “yes, you may file a charge.  But, if the tribe files a defense of sovereign immunity, then we will dismiss the case.  Most people back off,” she said; there are five or six human rights complaints against tribal entities filed with the state department annually.  The department deals with these complaints by sending the people who filed them a standard Memorandum, which concludes, “the Commissioner declines to process this charge further.”

Hanson explained to Press/ON that, “years ago,” we would “try to resolve” human rights complaints against Indian tribal enterprises.  The Minnesota Supreme Court’s 1996 decision in Gavle v. Little Six (555 N.W.2d 284) changed the Department of Human Rights’ policy.  In that case, the Minnesota court ruled that the “affirmative defense of sovereign immunity may be extended from a tribe to a tribal business entity,” and that “[a]bsent an express and unequivocal waiver of sovereign immunity, a tribal business entity possessing the affirmative defense shall not be deemed to have waived it.”

Who made the decision not to enforce human rights complaints against tribal defendants?  At that time, David Beaulieu and Delores Fridge were at the helm of the Human Rights Department.  Press/ON asked Elaine Hanson who, specifically, was in charge and thus responsible for the state department’s policy of not enforcing the Minnesota Human Rights Act against tribal defendants.  “When Beaulieu was Commissioner, Delores [Fridge] was Director of Enforcement,” Hanson said, and “Ken Nickolai was Deputy Commissioner and directory of policy for legal affairs.”

When pressed about the State’s policy of not enforcing state law against certain organizations, and asked why the Department of Human Rights had not reassessed its policy of non-enforcement in light of the U.S. Supreme Court’s recent decisions, Hanson explained that “regardless of the Department of Human Rights’ position,” there is “no administrative authority for the enforcement of Constitutional rights.  Administrative agencies can only enforce state law, not constitutional law.  Each state law,” she said, “specifies an enforcement mechanism.  But the constitution – there is nobody to file” a complaint with, “unless there is a statute which specifies enforcement” processes and mechanisms.

Hanson also explained to Press/ON that state enforcement of the Human Rights Act against tribal entities is, “an issue that we considered a number of years ago.”  One of the key legal issues, she said, is the distinction between “regulatory law” and “policy,” which the U.S. Supreme Court made in the 1976 legal case, Bryan v. Itasca County (426 U.S. 373).  In its decision in Bryan v. Itasca, the Supreme Court ruled that, “if Congress, in enacting the statute [28 USCS §1360], had intended to confer upon the states general civil regulatory powers, including taxation, over reservation Indians, it would have expressly said so.”

“The Department of Human Rights still views the Human Rights Act as a  … regulatory law,” Hanson said, rather than as State policy.

Hanson also said, “I’m acknowledging the reality,” not necessarily endorsing it.  Unless the tribe has specifically waived their sovereign immunity, the Department of Human Rights will not prosecute a human rights complaint against a tribal entity. … Variations on this them go back into the 1970s, with every Commissioner.  I do not recall that we have ever tried to litigate a case where sovereign immunity was asserted.”

The current Commissioner of Human Rights is Janeen Rosas.  The Department of Human Rights’ toll-free number is 1-800-657-3704, and their webpage is at http://www.state.mn.us/ebranch/dhr/accsite/