February 15, 2002
Native American Press / Ojibwe News

Marcella Blue Stone
submitted photo
Marcella Blue Stone

Indian enrollment and the Prairie Island tribal court

by Clara NiiSka

Last week, Press/ON reported on the attempts of Lawrence Larson, Marcella Blue Stone and Harvey Owens to gain official recognition of their status as Prairie Island Indians.  Despite years of efforts, these three elders’ clear ties to the Prairie Island Indian community, and the Prairie Island enrollment committee’s repeated recommendations for enrollment, their case is stymied: the Prairie Island tribal court of appeals has stalled for more than six months, declining to rule even on whether or not the tribal court has the jurisdiction to hear enrollment cases.

The elders’ attorney, Gary Montana, told Press/ON that the Prairie Island council and tribal court’s actions in this case are a “typical example of why our sovereignty is being eroded by the Supreme Court.  The tribal courts are not responsive to the Indian Civil Rights Act.”  At Prairie Island, the ICRA is clearly ‘tribal law’ as well as federal law: the Community Council adopted it by Ordinance No. 17 in 1968, declaring:

“The establishment of a Court and the maintenance of Law and Order on and within the limits and jurisdiction of the Prairie Island Indian Community necessitates the protection and guarantee of Civil Rights for the Prairie Island Indian Community Members.  The Prairie Island Indian Community Council therefore enacts the Indian Civil Rights Act Ordinance for the advancement and protection of the Prairie Island Indian Community Members …”

Attorney Gary Montana has long been an advocate of tribal sovereignty – he teaches seminars on Indian law and says, “once you give sovereignty away, you don’t get it back.”  When discussing the Prairie Island elders’ enrollment case, however, he is sharply critical of what he describes as irresponsible abuses of power.  “Once people get into an IRA council” as elected officers, Montana said, they “can do whatever the hell they want, then stand behind sovereign immunity.  Tribal members have no recourse.”

Despite his concerns about abuses by the tribal court and IRA councils, Montana structured his legal case on behalf of the Prairie Island elders in terms of the legal philosophy he has publicly advocated for many years.  As Montana explained to Press/ON, the precedent-setting 1978 Supreme Court decision in the legal case Santa Clara Pueblo v. Martinez has a “paragraph in reference to Ex Parte Young,” a 1908 case establishing that tribal officers are “not protected by the tribe's immunity from suit.”  Montana therefore sued the Prairie Island community council members individually—in their own tribal court.

The tribal court has responded with inaction.  It’s the kind of ‘Catch-22’ which some claim has been ‘typical’ of Indian country ever since General Custer reportedly told the BIA, “don’t do anything until I get back.”  With the case forever ‘pending’ in tribal court, it would be difficult for Montana to file a civil rights case in federal court.  His Prairie Island clients are elders—Harvey Owens is eighty-two years old, Marcella Blue Stone recently turned 78, and Lawrence Larsen’s sixty-first birthday is Wednesday, February 20th.  If his clients die before the tribal court makes a decision, the elders’ legal case becomes “moot.”  Except for rare politically-motivated “enrollments,” and perhaps a few alleged enrollments in support of “ancestral voting,” deceased people are not enrolled as Indians.

Blue Dog’s tribal court

The briefs filed with the tribal court of appeals in the Prairie Island elders’ enrollment case involve technical legal arguments.  The central question was whether or not the case should be considered by the tribal court, or, as the attorneys for the Prairie Island council argued, dismissed.

The tribal appellate court documents obtained by Press/ON have nothing to do with the facts of the case, nor the legal issues coloring the interpretation of those facts.  For example how could Marcella Blue Stone, born at Prairie Island and enrolled on the Prairie Island base rolls under her maiden name, Marcella Leith (#325), not be enrolled now?

Rather than addressing the enrollment questions, Joseph M. Paiement and Richard McGee, attorneys for the Prairie Island council, urged that the elders’ case should be dismissed because the individual council members sued by Montana were “the wrong defendants,” and, alternatively, that they were protected by sovereign immunity.

The elders’ attorney, Gary Montana, responded to Paiement and McGee with a technical briefing of U.S. case law relating to tribal sovereignty.  He detailed the legal precedent supporting a lawsuit “against the officer in his or her official capacity,” and explained that “because the suit is thus not against the sovereign, it is not barred.”

When this writer interviewed elder Lawrence Larsen last week, he explained his case in terms of facts and photocopies of official documents, and his arguments resonated with the kinds of logic one often hears from Indian elders in Minnesota.  The case presented by Larsen would have been extremely persuasive in a ‘tribal court’ of Larsen’s peers.

However, the Prairie Island community council, like some other small ‘tribes,’ employs professional attorneys as tribal court judges.  According to Prairie Island tribal clerk of court Carrie Blesener, there are four judges: Andrew Small, Steven Olson, and Susan Allen, and Chief Judge Kurt Blue Dog.  All four of Prairie Island’s tribal court judges are attorneys with the law firm Blue Dog, Olson and Small, which specializes in Indian law.  Blue Dog also provides tribal court judges for the Lower Sioux Indian community.

Blue Dog’s law firm is one of the “big players” in Minnesota Indian law, and this writer was curious about how they resolved the conflicts of interest which could arise from practicing attorneys also serving as judges (especially in cases involving their tribal government clients), as well as more philosophical questions about how such lawyer-judges might uphold the codes of conduct and professional standards required of attorneys and judges in Minnesota while adjudicating in tribal courts where the only enforceable civil right might be habeas corpus.   Phone calls had not been returned by press time.

“Greed and politics”

The Prairie Island Indian community is a small community.  The current tribal rolls are said to be kept “under lock and key,” but knowledgeable sources estimate the total enrollment at “about 500,” more than half of whom are children.

Treasure Island Casino is profitable.  In April 2001, Press/ON estimated total casino revenues at Prairie Island to be about $100 million annually.

Enrolled Prairie Island Indians receive per capita payments: a share of the casino profits.  Unless casino profits increase, increasing the number of people enrolled makes it likely that each person will get a smaller per capita payment.  “Sharing” is a widely acclaimed “Indian value,” so … could a small decrease in per capita payments be a motivation for the Prairie Island community council’s keeping elders off the rolls?

Prairie Island is also, like many other small Indian communities, “founded” by relatively few families.  Lawrence Larson pointed out that four of the five community council members are from the same family – the Campbells.  (He also faxed Press/ON enrollment documents from the Santee Tribe of Nebraska, certifying that Prairie Island Campbell matriarch Lena Campbell was enrolled as a Santee Sioux Indian at the time of her death in August 1972.)

In July 1999, the seven-member Las Vegas Paiute tribal council disenrolled nearly one-fourth of the 54-member band.  Some of the disenrolled Paiutes emphasized a concentration of political power with one family as being at the root of the problems.  The structure of IRA tribal governments facilitates such concentration of power, and Prairie Islanders and Las Vegas Paiutes are not alone in coping with the consequences IRA constitutions.  As Gary Montana put it, “when some tribes accepted Section 16 of the IRA, they had only one small group of people—setting up a ‘puppet government’.”

According to Prairie Island elder Lawrence Larson, enrolling members of his family would shift the balance of power away from the Campbells.

Montana said it more bluntly: “pure and simple, greed and politics.”

The base rolls

The names, family relationships, ages and blood quantums listed on the Prairie Island base rolls (described in Article III, Sec. 1 of the Prairie Island Constitution as the “official census roll of the Minnesota Mdewakanton Sioux Indians as of April 1, 1934”) are reproduced on pages 5 and 6 of this issue of Press/ON.