Native American Press/Ojibwe News

Mille Lacs, Prairie Island argue casino audits should be secret

By Clara NiiSka - February 1, 2002
Press/ON publisher Bill Lawrence went to court on Monday, January 28th, 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”).

The immediate issue before the court on Monday was Mille Lacs’ and Prairie Island’s motions for summary dismissal, which would make the temporary restraining orders they had previously obtained permanent. The TROs temporarily restrain the state from releasing Indian casino audits, which the Attorney General’s office has ruled are public information under Minnesota state law. The TROs were requested by Hilke and Fishel and issued by the court pending the outcome of the lawsuits filed by the Indian gambling enterprise attorneys against the State of Minnesota.

The Mille Lacs and Prairie Island attorneys sued to prevent the State from releasing Indian casino audits filed with the State Department of Public Safety (DPS) in accordance with the requirements of the State-Tribal gambling compacts. Press/ON requested the audits under the provisions of the Minnesota Data Practices Act nearly a year ago. According to legal determinations by both the Department of Administration and the Office of the Attorney General, the audits are public information.

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.

After apparently coming to agreement about “procedural matters” in pretrial conference with the Judge, the participants returned to the courtroom. Judge Bjorkman formally entered the courtroom, and the hearing began. Fishel and Hilke had, along with other Indian gambling enterprise attorneys involved in the casino audit dispute, made a broad-spectrum series of arguments in their efforts to prevent the release of the audits, including that the Attorney General’s office had a “conflict of interest” in representing the State of Minnesota.

Mille Lacs Band attorney Fishel’s last-minute “Second Affidavit” reiterated some of the conflict of interest allegations. It included excerpts from a late-December deposition of DPS Commissioner Charlie Weaver, which was taken as a part of the federal lawsuit in which the Shakopee and Lower Sioux Indian Communities and Grand Portage Band are suing the state. That lawsuit was also filed in attempts to bar the release of casino audits.

Solicitor General Alan I. Gilbert, the Attorney General’s Chief Deputy, had emphatically rejected the allegations that there was a conflict of interest in his December 5th letter to Judge Bjorkman, writing, “Pursuant to the laws of the State, this office will continue to represent the State’s legal policy in this matter.”

Fishel raised the ‘conflicts of interest’ allegations again, in her January 28th courtroom appearance. Judge Bjorkman responded, “We’re not going to fire the attorney general.”

Fishel also repeatedly pointed to the State’s shifts in policy after the Department of Administration’s April 2001 ruling that Red Lake casino audits were public information. Her courtroom presentation included a large chart detailing the state’s policy changes over time, and a quote from DPS Commissioner Charlie Weaver emphasizing the cozy relationship between Indian gambling enterprises and the Minnesota agency charged with regulating them.

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.

Editor’s note: Many of the financial reports filed by Grand Casinos with the SEC can be accessed on the internet via http://www.sec.gov/edgar/searchedgar/webusers.htm). Information relating to the Mille Lacs Band’s Woodlands National Bank—owned through its bank holding company Mille Lacs BankCorporation—is also accessible on the internet, via http://www.ffiec.gov/.