by Clara NiiSka

Press/ON publisher Bill Lawrence went to court on Monday, January 28^th, representing himself and this newspaper in the legal cases Mille Lacs Band of Ojibwe Indians v. State, et al., and Prairie Island Indian Community v. Department of Public Safety, et al.  The two cases were heard jointly by Judge Louise Bjorkman in Ramsey County District Court.  Also appearing before Judge Bjorkman were John Garry, of the Office of the Attorney General and representing the State of Minnesota, Mille Lacs Band lawyer Wallace G. Hilke of the Minneapolis law firm Lindquist and Vennum, and Prairie Island Indian Community lawyer Julie Ann Fishel, of the St. Paul law firm Winthrop and Weinstine.  Attorney Mark Anfinson, representing the Minneapolis Star Tribune, had previously sought to participate as an amicus curiae (“friend of the court”).

Monday’s courtroom hearing was scheduled to begin at 9:00 a.m.  At about nine o’clock the participants, along with Mille Lacs attorney Anita Fineday, met with the Judge in her chambers (office).  Pretrial, the attorneys had filed thousands of pages of documents, and shortly before the hearing was scheduled to begin a “Second Affidavit of Julie Ann Fishel in Support of Plaintiff’s Motion for Summary Judgment,” along with six attached exhibits, was added to the stack of paper.  In addition to the publicly available documents, Judge Bjorkman has reportedly been provided with copies of the disputed casino audits to study in her chambers.

Both Fishel and Hilke’s courtroom arguments included the claim that the casino audits – most recently requested by DPS more than four years ago – included “trade secrets.”  They also argued that legally the Mille Lacs and Prairie Island tribal councils are “governmental entities outside of Minnesota.”  Therefore, they claimed, Minnesota Statute 299L.03, which they said provided for “comity between sovereigns,” would outweigh the Minnesota Data Practices Act.

Fishel also said that release of the casino audits would conflict with the secrecy provided for by “Prairie Island’s custom and tradition,” and that state release of the audits under the Data Practices Act would be a “breach of contract.”

Judge Bjorkman asked her, “can the state contract to do something that would violate the Data Practices Act?”

Fishel responded that if the audits were made public, “Prairie Island would be looking at remedies of the breach.”

Mille Lacs Band attorney Hilke’s also used the “trade secrets” argument, even though much Mille Lacs financial information was made public in documents filed by Grand Casinos with the Securities and Exchange Commission (SEC).  “The SEC numbers are different,” explained Hilke.

The Judge asked Hilke if the SEC information would make Mille Lacs casino financial information “more readily ascertainable.”  Hilke argued that the differences between the financial information provided to the SEC, and that provided to the State of Minnesota were great enough that the state-held audits met the “trade secret test.”  “If the folks who really know about this business – if they thought that there was no value” in the information provided by the casino audits, “why such extraordinary efforts to preserve” the secrecy, Hilke asked.

Mille Lacs and Prairie Island sued the State in an effort to prevent the release of the casino audits.  Press/ON publisher Bill Lawrence, whose February 2001 request for the audits launched the circumstances giving rise to the lawsuits, appeared in court on Monday as an intervenor in the case.  Lawrence made his arguments largely in terms of policy issues: in terms of the casinos’ effects on most Indians in Minnesota, as well as the overall impacts of gambling in Minnesota, including “the effects of gambling in Minnesota on crime.”  He said that the state-tribal compacts in Minnesota were “poorly written,” and that most Indians in Minnesota do not receive any significant benefit from the so-called Indian casinos.

Despite the state-tribal audits being generally weighted in favor of the tribes, Lawrence said that Section 6.11 of those compacts – the clause under which he requested the video gaming audits – clearly provides for the release of the audits as public information.  Lawrence emphasized that the “plain meaning” of the Data Practices Act clearly makes the audits public information.

Lawrence also pointed out that Public Law 280, through which Congress extended state jurisdiction over all Indian reservations in Minnesota except Red Lake, was a compelling counter to Fishel’s and Hilke’s arguments that Prairie Island and Mille Lacs are “outside Minnesota.”

John Garry, representing the State, responded to Fishel’s arguments about the state’s policy shift by noting that prior to the Department of Administration’s advisory opinion last April, “the DPS was accepting in good faith the tribe’s arguments.”  However, he said, “The state can not violate the Data Practices Act. … We have to follow the law.”

Both Fishel and Hilke used courtroom tactics usually used to influence juries in their presentations to Judge Bjorkman.  Hilke, in particular, spoke with a studied joviality, beginning: “I love this case,” it involves “such interesting questions around state and tribal sovereignty …”  Garry, on the other hand, addressed the Court more academically, stressing the applicable law and emphasizing legal issues like the intent of the legislature, and proper determination of the parties upon whom the “burden of proof” properly rests.

After hearing the arguments, rebuttals and summary statements, Judge Bjorkman said that she would decide “under advisement,” and that she would issue her decision within the time limits delineated by state law.