Native American Press/Ojibwe News

Open Letter to Chief Justice Blatz

September 4, 2001

Attn: The Hon. Kathleen A. Blatz, Chief Justice

Re: In re: Application of Paul Bunyan Rural Telephone Cooperative Under Rule 67.02 MRCP, Appellate Case No. C9-00-1569.

Honorable Justice Blatz,

I am writing to draw your attention to Decision No. 00-40088 in the United States Court of Appeals for the Fifth Circuit, Comstock Oil & Gas, Inc., et al. v. Alabama and Coushatta Indian Tribes of Texas, et al. filed August 27, 2001.

In that case, the 5th Circuit Court clarified that an “illegitimately formed tribal court could not exercise jurisdiction,” and that the tribal court was legally “non-existent.”¹ The Tribe’s constitution and bylaws “contained no provisions for the creation of judiciary, and … no evidence supports a finding that the constitution was properly amended to allow for the formation of a tribal judiciary.”²

The illegitimacy of the Alabama and Coushatta tribal court precisely parallels that of the tribal courts of the Minnesota Chippewa Tribe, which similarly has no constitutional provisions authorizing the creation of judiciary or other legally-binding adjudicative fora.³

The legal situation pertaining to the Red Lake Band of Chippewa—and the Red Lake Indian court involved in In re: Paul Bunyan—is slightly different, since the court in question was and remains a court of Indian offenses.⁴ However the logic is identical: the U.S. Constitution does not grant the Executive Branch, e.g. the Secretary of the Interior, the authority to establish courts.⁵ The U.S. Congress has had one hundred and eighteen years during which to enact legislation specifically authorizing the establishment of courts of Indian offenses, and has not done so.⁶ The court of Indian offenses at Red Lake is, like the Alabama and Coushatta tribal court, legally non-existent. It cannot make any determination as to the “law” of Red Lake reservation.

The situation at Red Lake is clouded by the heading on some documents deriving from the Red Lake Indian court, which read “Red Lake Nation Tribal Court.” Such a court cannot legally exist for a number of reasons, including that the 1958 Constitution of the Red Lake Band of Chippewa specifically requires the approval of the “Secretary of the Interior, or his duly authorized representative” for nearly all governmental actions of the Red Lake tribal council.⁷ If there existed a legitimate tribal court at Red Lake, the Department of Interior would not continue to list the Indian court at Red Lake as being a court of Indian offenses. Red Lake continued to be listed as having a court of Indian offenses at least into the year 2000, 25 CFR §11.100(a)(1), therefore whatever the “Red Lake Nation Tribal Court was in May 1998,” it was legally non-existent.

Even if the Red Lake Indian court were legally a court of law—which it is not—Indian courts are not courts of general jurisdiction. As I have discussed at some length previously In re: Paul Bunyan, the Red Lake Indian courts did not have the jurisdiction to appoint a personal representative, to probate Wub-e-ke-niew’s estate, to determine the legitimacy of Wub-e-ke-niew’s and my marriage, nor even to attempt to distinguish between microfiche and microfilm.

Federal law, which is the applicable law with reference to the Red Lake Indian court, was recently clarified by the U.S. Supreme Court in Nevada, et al. v. Floyd Hicks, et al. 121 S. Ct. 2304 (2001):

The path marked best is the rule that, at least as a presumptive matter, tribal courts lack civil jurisdiction over nonmembers.⁸

Further, in Duro v. Reina 495 U.S. 676, 693 (1990), the U.S. Supreme Court explained that subjecting citizens to a “tribunal, such as a tribal court, that does not provide constitutional protections as a matter of right” was “justified by the voluntary character of tribal membership and the concomitant right of participation in tribal government” [emphasis added].

The Supreme Court’s Order, filed August 31, 2001 was postmarked September 1, 2001, Exhibit A. Please note that September 1, 2001 was the Saturday immediately preceding Labor Day, and that this response is postmarked Tuesday, September 4, 2001, i.e. the first non-holiday after the Labor Day weekend.

In my Petition of August 29, 2001, I argued that Rules of Court cannot supersede either the U.S. Constitution or the State of Minnesota Constitution, and that the State of Minnesota resting its Courts’ judgments on legally non-existent prior determinations, and/or determinations made absent competent jurisdiction, is violative of Constitutional provisions guaranteeing due process. Rejecting my Petition under MRCAP 102 on any basis except a constitutional one would therefore be both logically and legally unsound.

… [W]hat the Red Lake Indian court did was a gross miscarriage of justice, as well as being illegal under every extant set of laws. The State of Minnesota’s upholding such illegal abuses as “law” is objectionable not only in that it is profoundly unjust personally, but also because rubber-stamping it as purported “law” is extremely poor precedent for the State of Minnesota generally.

Thank you for your reconsideration,

Sincerely,

Clara NiiSka

Notes:

Editor’s note: The 1958 Constitution of the Red Lake Band of Chippewa Indians includes establishment of an Indian tribal court among its “governmental powers,” Art. VI, § 5, but it also specifically requires the approval of the “Secretary of the Interior, or his duly authorized representative” for the establishment of any such Indian tribal court. As the U.S. Court of Appeals for the 8th Circuit determined with respect to the Red Lake Indian court in United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (1987), implementation of any constitutional authority to establish tribal courts rests on the Indian Reorganization Act, full adoption of which with respect to the Red Lake Band is incompletely determined and hotly debated at Red Lake. If the Secretary of the Interior had approved a tribal court at Red Lake, the Department of Interior would not continue to list the Indian court at Red Lake as being a court of Indian offenses, and Red Lake continues to be listed as having a court of Indian offenses, 25 CFR §11.100(a)(1).

There is no separation of powers providing even a semblance of justice at the Red Lake Indian court. The Bureau of Indian Affairs contracts administration of the Indian court under P.L. 93-638; the court is presently controlled by a Red Lake tribal council appointee. Judges and other court personnel are appointed by the tribal council, and serve at its pleasure, although tribal court judges are technically federal employees who receive federal retirement benefits. As the May 1990 draft of the U.S. Commission on Civil Rights’ report on the Red Lake court of Indian offenses amply demonstrates, there have been serious and longstanding patterns of injustice at the Red Lake court of Indian offenses.

The Red Lake Indian court’s actions with respect to the “Francis Blake estate” are yet another case of the Red Lake Indian establishment’s flagrant disregard for civil rights and due process. Clara NiiSka made a special appearance at the Red Lake Indian court in order to object to its assertion of probate jurisdiction over the adamantly non-Indian Wub-e-ke-niew (a.k.a. Francis Blake). The Red Lake political establishment dealt with her objections by eliminating the objector: shortly after courtroom proceedings began, the tribal chairman removed NiiSka from the Red Lake Indian courtroom with an executive order banishing her from the entire reservation, which procedure is utterly absent due process.

The U.S. Supreme Court’s concerns about “not provid[ing] constitutional protections as a matter of right” in Indian courts (Duro v. Reina) are clearly exemplified by NiiSka’s case. The U.S. Supreme Court amplified its disquiet about persistent patterns of civil rights violations in Indian courts with its recent decision in the case Nevada v. Hicks, limiting tribal court jurisdiction to ‘tribal members only’ irregardless of the ownership status of the land—and thus sharply delimiting tribal court jurisdiction even over Indian trust land. In Nevada v. Hicks, the Court also found the Indian courts inadequate fora for competent adjudication of civil rights claims arising out of 42 U.S.C. §1983.