August 30, 2002

  Native American Press / Ojibwe News
 
Larsen, Blue Stone & Owen v. Prairie Island Community Council
“still waiting after all these years”

by Clara NiiSka

In two weeks, according to Lawrence Larson, it will have been twelve years since he, his mother Marcella Blue Stone, and Harvey Owen first went to the enrollment committee at Prairie Island.  Blue Stone, née Leith, was listed on the original 1934 rolls of the Minnesota Mdewakanton Sioux and according to the Article III Section 1(a) of the Constitution of the Prairie Island Indian Community, is entitled to enrollment there.  Both Larsen and Owen are descendents of original enrollees, and all three plaintiffs were born and raised at Prairie Island.

According to the plaintiffs' lawyer, Gary Montana, the Prairie Island enrollment committee approved their enrollment, in the case of Blue Stone recommending enrollment "three times."  The Prairie Island community council, however, did not act on the enrollments.

In November 1999, they filed in suit in the Prairie Island tribal court, suing the Prairie Island community council:  Audrey Kohnen, Darrell Campbell, Noah White, Lu Jacobs Taylor and Ron Johnson "as members of the Community Council ... and in their individual capacity."

As Montana wrote in his brief for the plaintiffs, "the Defendant Community Council and as individuals failure to act on the recommendations of the Enrollment Committee to enroll all three (3) Plaintiff(s) is a violation of the Plaintiff's equal protection and due process of tribal laws as established and promulgated by the Tribe.  Thus, such inaction is clearly "actions outside the scope of the authority" of the Defendants in both their official and individual capacities."

The Prairie Island community council, through their attorneys Joseph Paiement and Richard McGee, responded with a motion to dismiss the lawsuit for "failure to state a claim," and in the alternative, to dismiss based on the defendants' sovereign immunity.

The matter was heard in the Prairie Island tribal court in March 2000, and in their order filed August 23rd, the tribal court ruled that "the immunity from suit which protects Indian tribes extends to each of the Defendants in their official capacities and their actions have been within the scope of their authority," and that the Plaintiffs cannot prove any facts which would entitle the Plaintiffs to relief."  In other words, the tribal court ruled that there was no legal process through which Blue Stone, Larsen, and Owen could compel the Prairie Island community council to act on the applications for enrollment, and for Blue Stone, council acknowledgment of her original enrollment.

Blue Stone, Larsen, and Owen appealed.  In a memorandum on behalf of the plaintiffs filed May 29, 2001, Montana argues that "the Plaintiff(s) have exhausted all administrative remedies that are available to them under Community law regarding their individual enrollment.  Article III of the Community Constitution does not require the Plaintiff(s) to prove further qualifications, once they have established they meet the requirements of Article III, Section 1(1),(b) or (c) for enrollment purposes; the burden then shifts to the Tribe to prove otherwise. In the present situation... now it is incumbent upon the Defendant(s) to enforce the recommendations of the Enrollment Committee and enroll the Plaintiffs. ...."

In the response from the community council, their attorneys argued that "the membership list has been set," and "plaintiffs are not on the membership list."  "For plaintiffs to be added to the membership list, they must seek and obtain approval from both the Membership Committee and the Community Council."

The tribal court does not have jurisdiction over enrollment disputes, argued the attorneys for the Prairie Island community council, "the Community's laws place exclusive jurisdiction over membership issues in the Community Council and ... the community Council has not delegated jurisdiction of this issue to the Court."  In addition, the community council's attorneys argued that the issue was not "ripe" for judicial review, since the community council had not exercised "the power it possesses by reviewing the Membership Committee's analysis."  Furthermore, the attorneys continued, the case should be dismissed because both the community council has not waived its sovereign immunity, and "the law protects" individual council members "by providing immunity for their decisions and conduct while serving their Community as governmental officials ... as tribal officials, the Individuals enjoy the protection of immunity."

The appeal was filed more than a year ago.  The tribal court has not yet ruled.  Under state law, attorney Montana told Press/ON, the state has sixty days to make a ruling."  Especially with the state's consideration of "full faith and credit" for tribal courts, the tribal courts need to be "more timely in their decisions.  ... What can anybody do?  There is no forum that we can go to, to get an opinion more quickly."

All three of the plaintiffs are elderly, and Larsen says that he had a heart attack on his granddaughter's birthday, August 13th.  "They're waiting for us to die," Larsen had previously told Press/ON.

The plaintiffs have recently heard that the tribal court has assigned a "new judge" to their appeal, judge Allen from Rosebud, and that the judge will rule on the appeal in the next couple of weeks.  "I don't expect anything good," Montana said.

Montana, who has been a longtime advocate of tribal sovereignty -- his seminars on Indian law are described on the internet at http://www.montanaseminars.com -- is considering appeal to the federal courts if the Prairie Island tribal court does not rule in favor of his clients.  "I'd love to argue the injustice of the issues in front of a federal judge," Montana said, "but I don't want to be the person who goes before the Supreme Court" with a case which results in the Supreme Court, which has recently trimmed tribal sovereignty in cases like Nevada v. Hicks, "taking more [tribal] sovereignty away."




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