Native American Press/Ojibwe News Articles

NiiSka appeals to MN Supreme Court in spirit of deceased husband

By Jeff Armstrong - July 29, 2001

Press/ON reporter Clara NiiSka has filed a petition to the Minnesota Supreme Court to review lower court holdings that her marriage to deceased writer Wub-e-ke-niew (a.k.a. Francis Blake) was invalid under state and tribal laws she says do not apply.

Although the two were wed in a traditional ceremony on the Red Lake reservation in 1984, district judge Paul Benshoof ruled that the marriage failed to comply with a subsequent 1990 reservation code or a seemingly expired 1947 resolution of the reservation General Council—a body which ceased to exist upon adoption of the 1958 Indian Reorganization Act constitution.

On appeal, a three-judge panel concluded that Minnesota statute 517.01 stipulates that “’lawful marriage may be contracted***only when a license has been obtained’ and abolishes common law marriages. This court cannot override the legislature in this context,” the Court of Appeals wrote.

NiiSka argues that Red Lake is beyond the civil jurisdiction of the state of Minnesota, whose courts had no constitutional authority to apply on a retroactive basis a 1990 tribal ordinance or the resolution of a defunct council.

“Legal questions of jurisdiction involving Red Lake are sufficiently confusing that, for example, the Court of Appeals ruled that petitioner Clara NiiSka’s and the deceased Wub-e-ke-niew’s 1984 Ahnishinahbeojibway Mide marriage there was ‘not valid’ under three separate and mutually exclusive sets of laws—none of which apply...Without citing any grounds for doing so, and in disregard of Federal law, an extensive body of case law, the evidence and arguments before the Court, and important documentation: the Court of Appeals responded by asserting Minnesota Civil Jurisdiction within the external boundaries of the Red Lake reservation and adjudicating the marriage ‘as if’ Minnesota jurisdiction pertained,” wrote NiiSka in her petition to the supreme court.

The state court decisions were apparently predicated in part on a Red Lake Indian Probate Court ruling which refused to recognize NiiSka’s marriage on the basis of the 1990 reservation code and the post-mortem reenrollment of Wub-e-ke-niew, who had renounced his tribal membership. NiiSka went to the Red Lake probate hearing in order to object to the Red Lake Indian Court’s assertion of probate jurisdiction over Wub-e-ke-niew’s estate. The Red Lake Court’s probate jurisdiction is limited to enrolled Indians under both federal regulations and the Tribal Code. NiiSka was not allowed to argue her case in the Red Lake Court—or even to recover her personal possessions—before being expelled from the reservation.

As Press/ON reported on May 29, 1998, Red Lake chairman Bobby Whitefeather unilaterally issued an “Order of Removal” banishing NiiSka from Red Lake. The Order was served on NiiSka shortly after the Indian probate hearing began on May 26, at which time she was forcibly removed from the courtroom and escorted to the reservation boundary by Red Lake Indian police. Whitefeather disregarded NiiSka’s appeal of the chairman’s removal order. There is no other appeal process, so NiiSka is effectively exiled for life. She is barred from returning to the land which had been her home for twenty years, from seeing her friends, even from visiting her deceased husband’s grave.

In her initial appeal, NiiSka contended that state courts have no legal basis to enforce tribal orders contrary to the U.S. Constitution.

“The State of Minnesota Trial Court Judge is ‘bound’ by the U.S. Constitution, and thus legally compelled to refrain from complicity in violating the Constitution. Recognizing an Indian Court decision evincing clear violations of Constitutionally-protected civil rights would entail deliberate violation of the U.S. Constitution by the State of Minnesota Courts,” she argued.

But the state courts’ deference to tribal edicts seems also to extend to factual errors. The appeals court rejected as irrelevant a motion by NiiSka to correct the state’s incorporation of the Red Lake Probate Court’s erroneous identification of Wub-e-ke-niew as Francis George Blake, Jr.

“Appellant cites no support for her view that a finding irrelevant to a district court decision becomes a legal fact. There was no abuse of discretion in the district court’s denial of parts of appellant’s motion for amended findings,” wrote Judge Harten in the unpublished opinion.

In her petition for review, NiiSka counters that the courts continue to attach a name to her husband which was never his, while refusing to consider evidence to the contrary. “The intractability of the post-mortem name in In re: Paul Bunyan is prima facie evidence that such ‘facts’ can be fiendishly persistent. In legal situations spanning more than one jurisdiction, the Court’s entrenching false ‘facts’ in legal documents can pose a real hardship for the person who must then rebut them, and refusal to reconsider is an abuse of discretion,” NiiSka maintains.

NiiSka argues that the state has a legal imperative to correct factual errors in official documents, citing a statute which provides criminal penalties for submitting false information to a government agency.