Tribal
attorneys running
tribal courts:
are Indians
contracting for banal ‘third world’ bureaucracies?
by
Clara
NiiSka
Marcella
Blue Stone, Harvey Owns, and Lawrence Larson have been wrangling with
the
Prairie Island tribal court since November 1999 over tribal enrollment,
and,
eighteen months after their case was finally heard, the three elders
are still
waiting for the tribal court to make its decision.
As Press/ON reported last
February, Marcella Blue Stone, at that time age 78, was born at Prairie
Island
when it was still Strom’s Crossing whistle-stop, the daughter of the
first
I.R.A. tribal chairman at Prairie Island, Walter Jesse Leith. She is listed on the I.R.A. “base rolls” at
Prairie Island – one of those Indians whose 1934 membership influenced
the
federal government’s determination that the Prairie Island community is
“federally recognized.” Larson is her
son.
Harvey
Owens, the third litigant in this enrollment case, was also born at
Prairie
Island, the son of Julia W. Owens, a “fullblood” on the base rolls, and
the
full brother of renowned Prairie Island spiritual leader Amos Owens. According to Owens, Bluestone, and Larson’s
attorney, Gary Montana, Harvey Owens was not listed on the 1934 B.I.A.
census
because he was working at the depression-era Civilian Conservation
Corps
(C.C.C.) camps. He later joined the
army, and is reportedly a “decorated World War II veteran.”
While
researching the articles published last February, this writer sought
copies of
relevant court records from the Prairie Island tribal court. Court administrator Carrie Blaesener refused
to release the records, explaining that, “You can appreciate the
tribe’s
position. Due to the nature of the
case, those records are not public.”
Tribal
attorney/tribal court judge Henry Buffalo subsequently assured the
Supreme
Court Rules Committee that tribal court records were “public
information,”
during that committee’s hearings on a proposed rule to grant “full
faith and
credit” to almost every tribal court “judgment, decree, order,
subpoena,
record, or other judicial act …” After
months of hearings, including testimony by concerned people from
several
reservations, the Supreme Court Rules Committee unanimously rejected
the
proposed ‘full faith and credit’ rule at its August 14th
meeting. Press/ON assumes, however,
that
Buffalo would not have spoken falsely to the Minnesota Supreme Court
and that
therefore his statement that tribal court records are public records is
a true
statement. A number of other tribal
court judges and tribal attorneys, including Andrew Small, were present
at the
hearing when Buffalo assured the Minnesota Supreme Court that tribal
court
records are public records, and none of them contradicted Buffalo.
Armed with
a notarized affidavit from one of the parties to the case authorizing
release
of the court records, Press/ON attempted to obtain a copy of
the Prairie
Island court records. The offices of
the clerk of court, we learned, are not on the reservation, but rather
at the
law offices of BlueDog, Olson and Small, in the high-rise Southgate
Office
Plaza, 5001 West 80th Street, south suburban Minneapolis.
On their
web page at http://www.boslaw.com, the law firm advertises that, “We represent several tribal gaming
operations, including some of the largest operations in the States of
Minnesota, Iowa, and North Dakota. In
the capacity of legal counsel to tribal gaming operations, we have
dealt with
virtually every aspect of the gaming business. Members
of our firm advise tribal businesses on a wide
variety of issues,
as noted above, and we have served as general counsel to virtually
every aspect
of tribal business, governmental and regulatory operations.” BlueDog, Olson and Small (BO&S) also
provides tribal court services to the Prairie Island and Lower Sioux
Indian
communities, and one of the partners, Andrew M. Small, although not
licensed to
practice law in Minnesota, “has
been
admitted to practice in ten Tribal jurisdictions throughout Indian
country.”
Press/ON’s
request for the court records at the tribal attorney/tribal court
office was
tape-recorded:
Press/ON:
Hi, you’re the clerk of courts? …
BO&S:
Hi, no,
I can get her for you though
Press/ON:
Would you please … thank you
[wait]
Press/ON:
Hello, are you the …
BO&S:
Hi!
Press/ON: Ahh…
BO&S:
Carrie
Press/ON: Carrie Blaisvig, or …
BO&S:
Blaesner
Press/ON: Blaesner.
BO&S:
Yes.
Press/ON: My name’s Clara NiiSka. I write
for
the Native American Press, I’ve talked to you a couple of times
BO&S:
Uh-hunh
Press/ON: The reason I’m down here is because
Henry Buffalo assured the
Supreme Court
Rules Committee that tribal court records were open.
I have a release from a party who’s involved with a
lawsuit …
with the Prairie Island tribal council involving enrollment. I’d like a copy of the court records.
BO&S: [silence]
do you have the original?
Press/ON: It was faxed to me.
According to
Minnesota rules, a photocopy of a notarized thing like that is just as
good as
the original.
BO&S:
Okay. Aaah, give me a moment.
Press/ON: Okay …
[wait for at least
15 minutes]
BO&S:
I’m
going to have to send those out to you, I
can’t … them while you’re here, I’ve got [unintelligible] I need
to
prepare for, it’s an extensive file. Copies
are fifteen cents a page. I can call you
when it’s ready or I can send it out to you.
Press/ON: Why don’t you put a … when will it
be ready?
BO&S: I
have
court all afternoon today, um, I’d like to
say I’ll be able to do it tomorrow, but I can’t guarantee it
Press/ON: I mean, he’s been waiting for [more
than] a year for the
decision, so I
don’t want to wait for a year for the records
BO&S:
Well,
his attorney, Mr. Montana, has copies of
everything as well
Press/ON: right, but I’m asking the court for
them because I was told
that they are
public records
BO&S:
They
are, but like every court file it needs to be
purged and … I mean, there are certain in documents in there that are …
notes
and such, that … the file needs to be purged and copies need to be
made, I
can’t do that today. If you would have
called … I’m ready and willing to comply with your request, but I can’t
get it
done today
Press/ON: Ok, so when do you think they’ll be
ready?
BO&S:
Like I
said, I have court all afternoon today, ah,
hopefully I could get to it tomorrow or the next day, but I’ve got
other
pressing issues I need to attend to as well (laugh) so …
Press/ON: So, I’m asking you, when do you
think they’ll be ready?
BO&S:
Perhaps
by the end of the week
Press/ON: Ok, so I can come get them Friday
morning?
BO&S: I
can
call you and tell you when they’ll be ready.
Press/ON: How about I come get them Friday
morning, would that work for
you?
BO&S:
Sure.
Press/ON: Okay. How
many pages, about how
much am I going to owe you?
BO&S:
You
know, it’s a pretty extensive file, so … I can
call you and tell you how much it’s going to be
Press/ON: A hundred bucks … fifty bucks … ?
BO&S: I
really can’t add it up in my head right now (laugh)
Press/ON: Is it like this thick [gestures],
or is it like this
thick [gestures]
…
BO&S:
Well,
it’s the trial court and the appeal court
file …
Press/ON: Okay
BO&S:
Um … I
can’t even add them up. I can call you and
tell you how many pages
it is before I …
Press/ON: … well why don’t you just copy
them, and I’ll just sort of
take a chance
that I owe you a hundred bucks
BO&S:
Okay …
okay, I’ll have those for you Friday, there’ll
probably be a fair-[sized] pile
Press/ON: Okay. My
name’s Clara … I
think I
already told you. N-i-i-S-k-a.
BO&S:
Okay.
Press/ON: I also, at one point, asked you for
a copy of the tribal code
for the
reservations that you folks serve as tribal court for.
And, at that point you told me you didn’t
know how big the tribal code was, et cetera, et cetera, et cetera.
BO&S:
Okay. [unintelligible]
…
Press/ON
returned to the Southgate office building, which houses the Prairie
Island and
Lower Sioux clerk of courts on August 22nd, intending to get
the
requested court records.
Clerk of
courts Carrie Blaesener was unavailable, “in court” BO&S staff
person Toni
Alcantar told Press/ON. Alcantar
would not provide any information as to whether or not the “extensive”
files
had been copied, when Blaeser would be available, nor what the charges
for the
photocopied records would be.
After some
discussion, Alcantar told Press/ON that we would have to
telephone
Blaesener and “make an appointment to pick up the records.”
At press
time, neither Blaesener nor Andrew Small had returned Press/ON’s
phone
calls, and Press/ON has not yet obtained a copy of those
‘public’ tribal
court records.
And, nearly
three years after they began trying to get their tribal enrollment
straightened
out, Marcella Blue Stone, Harvey Owns, and Lawrence Larson are still
waiting
for the Prairie Island tribal court to rule – one way or the
other – in
their enrollment case. Larson has
described the long delay as the tribal establishment’s “waiting for us
to die.”
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