Honorable Justices of the Supreme Court of Minnesota:
The importance of whether or not to adopt a court rule expediting the Minnesota Courts’ acceptance of any “judgment, decree, order, apprehension order, protection order, warrant, subpoena, record or other judicial act of a tribal court of a federally-recognized Indian tribe” far outweighs the apparent significance of a rule perhaps most likely to affect approximately 54,967 adults and children who were “self-identified” as “Indians” in Minnesota for the 2000 Census.
The key issue is whether the Minnesota Supreme Court will uphold fair and equal applicability of the Minnesota Constitution and Minnesota laws in Minnesota courts, or whether the Court will systematically abrogate the civil and legal rights of specific groups of Minnesotans and adopt a proposed rule grounded in defective process, inadequate information, and biased arguments.
As was clear from my testimony before this Court on October 29th, I am urging the Court to reject the proposed “full faith and credit” rule. I briefly describe the grounds for doing so, at this point mostly because the thorny issues at the interface between tribal courts and state courts will continue to fester until either this Court or the U.S. Supreme Court unambiguously establishes that Minnesota courts will not by rule or otherwise “abridge the privileges or immunities of citizens of the United States; nor … deprive any person of life, liberty or property without due process of law, nor deny to any person within [Minnesota] jurisdiction the equal protection of the laws” [U.S. Const. 14th Amendment, see also Minn. Const. Art. I, Secs. 7, 8].
I also very briefly mention concerns about problems the processes through which the Tribal Court / State Court Forum arrived at its proposed “rule of procedure for the recognition of tribal court orders and judgments,” and note that the factual and background information presently before the Court is grievously inadequate. My purpose is, in part, to encourage the Minnesota Appellate Courts to initiate and maintain a collection of tribal codes, tribal council resolutions, and other pertinent information as a part of the public State Law Library system, in part so that anyone who does become involved with a tribal court in Minnesota has access to fairly up-to-date, comprehensive information.I. Problems with Tribal Court / State Court Forum’s process
There are several serious problems with the process by which the proposed “full faith and credit” rule has come to the Minnesota Supreme Court. These include:
1. Procedural problems. I request judicial notice of the minutes of the Tribal Court /State Court Forum (“Forum”) in their entirety. The minutes of those meetings held on-reservation are not part of the public record. Some of the on-reservation Forum meetings were closed to the public, some were meetings at which the public was barred from comment, and some were devoted to planning lobbying strategies intended to secure acceptance of the proposed “full faith and credit” rule. Whether or not the exemptions to Public Law 280’s unambiguous extensions of state jurisdiction [28 USCS § 1360] delineated by Bryan v. Itasca County, 426 U.S. 373 (1976), etc., could be stretched to include Minnesota judges’ nonpublic meeting with tribal employees and tribal attorneys and to discuss matters which would significantly expand the power of those attorneys’ clients, those closed and off-the-record Forum meetings give at the very least the appearance of impropriety.
2. The Forum did not properly fulfill the mandate from the Supreme Court: to study the issues involving tribal courts in Minnesota. Some of the requisites for a proper study were discussed at early meetings, but such balanced and comprehensive research quickly became overshadowed by certain Forum members’ push for “full faith and credit.”
3. Documents crucial to any proper study of tribal courts are apparently absent from the Forum’s records, and there is no indication that Forum members examined them. Many of these records are not a part of the state law library system and, in fact, are not catalogued as a part of any public library in Minnesota. One of the Forum’s tribal attorney/tribal court judges (Andrew Small) explained at one meeting that tribal courts are “different.” Precisely how tribal courts are “different” is important.
The following are among the documents indispensable to understanding the day-to-day operation of tribal courts, and should have studied for each of Minnesota’s reservations:
a) current and historical versions of tribal constitutions,
b) current and historical tribal codes, rules of procedure, rules of court, etc.,
c) tribal council resolutions in their full corpus,
d) complete tribal court dockets, thorough consideration of tribal court records, and extensive studies of cases heard in tribal courts including interviewing the parties in a statistically valid sampling of those cases
e) list of judges who have served on each tribal court for the past ten years, processes used in hiring, grounds for dismissal, codes of ethics and professional conduct, grounds for recusal, judges available for appeal
f) criteria for establishing “custom” and any compilations detailing such “customs”
g) complete list of the tribal court orders, judgments, etc. entered into state courts from each tribal court, as well as the state courts’ disposition of those cases.
The Forum should have thoroughly assessed the jurisdiction asserted by each tribal court in Minnesota from the several relevant vantages. If tribal court jurisdiction is in some instances contingent on someone being “Indian,” how is that determined? Are tribal enrollment records and the underlying genealogies public information? Are there extant or potential enrollment disputes, and how do these affect tribal court jurisdiction?
The Forum should have also critically examined the validity of the grounds upon which the legitimacy of each tribal court is asserted: historically and factually, as well as legally.
Furthermore, there are some contentious and fairly complicated disputes involving certain of the tribal courts in Minnesota. In addition to questions about the legitimacy of tribal courts under the Minnesota Chippewa Tribe constitution, there is a longstanding and convoluted dispute about the court at Red Lake. The U.S. Government defines the Red Lake court as a “Court of Indian Offenses,” subject to the federal regulations in 25 C.F.R. Chapter 11 as well as to the U.S. Constitution and to federal law including the Freedom of Information Act, U.S. v. Red Lake Band of Chippewa, 426 U.S. 373 (1987). The Forum’s summary, appended to the petition, describes it as the “Red Lake Nation Tribal Court,” which is a substantially different sort of entity in terms of jurisdiction as well as applicable federal case law.
Instead of doing adequate research, comprehensively surveying the morass of law, and carefully considering the facts, the Forum apparently succumbed to the vested interests of the tribal attorneys/tribal court judges who comprise the “tribal” half of the Forum, and fairly quickly moved toward advocacy of “full faith and credit.”
Those members of the Forum who are judges should not have reached this kind of decision without first considering the facts, the applicable laws, regulations, etc.
4. There are seven people whose requests to speak at the Supreme Court’s October 29, 2002 hearing were denied. All but one of those thus silenced would have spoken against the proposed rule. The Supreme Court should not adopt any rules when opposing voices are not fully heard. A majority of the people barred from speaking were Indians, several of them people from White Earth who filed photocopies of documents in support of arguments that Minnesota Chippewa Tribe (MCT) tribal courts are illegal courts established by a corrupt government.
5. Indian people have been inadequately represented throughout the Forum’s process. In general, the people advocating for the “full faith and credit” rule are professionals and members of the “Indian establishment,” not the people whose lives would be most deeply affected by the proposed rule.
II. The Minnesota Supreme Court is mandated to uphold the state and federal constitutions
As the “third branch” of government, the Court serves a number of functions in Minnesota. Crucial among them is to protect the rights of the people in Minnesota as guaranteed by the state and federal constitutions. That’s everyone – not ‘everyone except Indians.’
Arguments by the proponents of “full faith and credit” have centered around themes of efficiency, uniformity, potentially urgent cases at the interface of tribal and state courts, and respect for Indian tribal councils. They have also argued in terms of “comity.” “Comity” means, in part, ‘respect’ – and undiscerning ‘respect’ makes the concept meaningless.
State and federal protections including the Miranda warning, requirements for search warrants, etc. are not “efficient,” but are crucial to U.S. democracy.
The “uniformity” argument is inapplicable because tribal courts in Minnesota are far from uniform.
The potentially urgent cases-in-point cited by the proponents of the “full faith and credit” rule are irrelevant. State “full faith and credit” is unnecessary because such instances are already covered by federal law (and are, in fact, the only two areas of federal law in which there is general recognition of “public acts, records, and judicial proceedings of Indian tribes):
“25 USCS § 1911. Indian tribe jurisdiction over Indian child custody proceedings. … (d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes. The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity,”
and “Sheila’s law”:
“18 USCS § 2265. Full faith and credit given to protection orders. (a) Full faith and credit. Any protection order issued that is consistent with subsection (b) of this section by the court of one State or Indian tribe (the issuing State or Indian tribe) shall be accorded full faith and credit by the court of another State or Indian tribe (the enforcing State or Indian tribe) and enforced as if it were the order of the enforcing State or tribe.
“(b) Protection order. A protection order issued by a State or tribal court is consistent with this subsection if--
“(1) such court has jurisdiction over the parties and matter under the law of such State or Indian tribe; and
“(2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State or tribal law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights.”
III. Tribal courts are not courts of law within the meaning of either the U.S. or Minnesota constitutions.
The United States Constitution vests the “judicial power of the United States … in one supreme court, and in such inferior courts as the Congress may, from time to time, establish,” Art. III § 1, and delineates certain criteria which must be observed by state courts. The U.S. Constitution does not authorize the Executive branch (i.e. the Department of the Interior) to establish courts, and the Tenth Amendment makes it clear that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”
Although Congress funds “tribal forums,” and in one single instance has mandated recognition of “a protection order issued by a … tribal court,” there is no law establishing tribal courts.
The Minnesota Constitution vests “the judicial power of the state … in a supreme court, a court of appeals, if established by the legislature, a district court and such other courts, judicial officers and commissioners with jurisdiction inferior to the district court as the legislature may establish,” Art. VI, § 1.
Tribal courts are clearly not “courts of law.”
As noted above, there are two very different sorts of ‘courts’ operating on Minnesota reservations. The ‘court’ at Red Lake is listed in 25 CFR § 11.100 as a “Court of Indian Offenses.”
The U.S. Court of Appeals, Ninth Circuit, describes the establishment of Courts of Indian Offenses in Colliflower v. Garland, 342 F.2d 369 (1965), quoting from the Annual Report of Commissioner of Indian Affairs to the Secretary of the Interior, 1885:
“‘Under date of April 10, 1883, the then Secretary of the Interior gave his official approval to certain rules prepared in this office for the establishment of a court of Indian offenses at each of the Indian agencies, except the agency for the five civilized tribes in the Indian Territory. It was found that the longer continuance of certain old heathen and barbarous customs, such as the sun-dance, scalp-dance, polygamy, etc. were operating as a serious hindrance to the efforts of the Government for the civilization of the Indians. …
“‘There is no special law authorizing the establishment of such a court, but authority is exercised under the general provisions of law giving this Department supervision of the Indians. The policy of the government for many years past has been to destroy the tribal relations as fast as possible and to use every endeavor to bring the Indians under the influence of law.’ (P. xxi) [emphasis added]”
United States v. Clapox, 35 F. 575 (1888), the legal case generally cited as legitimating these “courts,” reiterates the understanding that they are not courts of law:
“‘These ‘courts of Indian offenses’ are not the constitutional courts provided for in section 1, art. 3, Const., which congress only has the power to ‘ordain and establish,’ but mere educational and disciplinary instrumentalities, by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian. In fact, the reservation itself is in the nature of a school, and the Indians are gathered there, under the charge of an agent, for the purpose of acquiring the habits, ideas, and aspirations which distinguish the civilized from the uncivilized man.’ [quoted from Colliflower]”
In Colliflower, the U.S. Court of Appeals wrote that, “[u]nder these circumstances, we think that these courts function in part as a federal agency and in part as a tribal agency, and that consequently it is competent for a federal court in a habeas corpus proceeding to inquire into the legality of the detention of an Indian pursuant to an order of an Indian court,” but, noting the non-uniformity of tribal courts, confined its decision to those on the Ft. Belknap reservation.
The development of the Court of Indian Offenses at Red Lake closely parallels that at Ft. Belknap, and is detailed in the “‘Indian Courts’: a brief history” series printed in the Native American Press/Ojibwe News in June 2001, and included in the appendices below.
The governments on the other six Ojibwe reservations are organized as “Reservation Business Councils” of the Minnesota Chippewa Tribe. The Revised Constitution of the Minnesota Chippewa Tribe, as posted by the Leech Lake Band of Ojibwe on their tribal government’s official website, is appended below. The tribal courts of the Minnesota Chippewa Tribe (MCT) are not authorized by MCT constitution.
Both MCT and Dakota tribal courts were established and are operated by tribal governments established pursuant to the 1934 Indian Reorganization Act (I.R.A.), 25 USCS § 461 et seq.:“25 USCS § 476. Organization of Indian tribes; constitution and by-laws and amendment thereof; special election.
“(1) ratified by a majority vote of the adult members of the tribe or tribes at a special election authorized and called by the Secretary under such rules and regulations as the Secretary may prescribe; and
“(2) approved by the Secretary pursuant to subsection (d) of this section.”
“(e) Vested rights and powers; advisement of presubmitted budget estimates. In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments. The Secretary shall advise such tribe or its tribal council of all appropriation estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Office of Management and Budget and the Congress.
“(f) Privileges and immunities of Indian tribes; prohibition on new regulations. Departments or agencies of the United States shall not promulgate any regulation or make any decision or determination pursuant to the Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act of Congress, with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes. … [emphasis added]”
There is no Congressional delegation of power to the tribal governments established under its aegis which would legalize tribal courts.
The BIA’s argument that these “tribal forums” rest on unextinguished ‘tribal sovereignty’ does not withstand scrutiny on either historical or cultural grounds. To this point, there is appended here a copy of Lorraine Kingsley’s 1986 paper on “discipline.” I am also providing the Minnesota Supreme Court with a copy of Wub-e-ke-niew’s We Have the Right To Exist (1995), which addresses this and other related issues from the vantage of an aboriginal indigenous person of Red Lake. Wub-e-ke-niew’s work may not be ‘easy-to-read’ for people whose think in European-American terms. He did not structure his analysis as a scholar trained in those traditions would have, he didn’t think within those structures – and that’s relevant. Tribal courts bear no resemblance to indigenous systems based on consensus, respect for the wisdom and advice of elders, personal responsibility grounded in indigenous religion and epistemology, community values centered in harmony …
It should be clear from the foregoing that present-day tribal courts on Minnesota reservations are not “courts of law” within the meanings of the U.S. and Minnesota constitutions. Particularly given the “business committee” orientations of the tribal governments established under the 1934 I.R.A., it may be enlightening to contemplate such “tribal forums” in terms of company-controlled dispute-resolution/disciplinary bodies in “company towns.”
IV. The Minnesota Supreme Court’s mission statement reads, in part, “justice according to the law,” which must include upholding the constitutionally-protected rights of everyone in Minnesota.
Whatever the jurisdictional situation(s) on any particular reservation – and this is not consistent across all Minnesota reservations – the moment a tribal court order or judgment crosses into Minnesota jurisdiction, it is a piece of paper in Minnesota. It must be subject to rights and protections in the Minnesota and federal constitutions.
Further, as the Minnesota Supreme Court has ruled in both criminal and civil matters, if the intent is for the on-reservation action to have an effect in Minnesota, state jurisdiction extends back across the reservation line along the cause of action.
In State of Minnesota v. Donald Rossbach, Jr., 288 N.W.2d 714 (1980), the Minnesota Supreme Court ruled that “State had jurisdiction to prosecute a defendant for aggravated assault where the facts revealed that defendant, standing on an Indian Reservation, fired a high-powered rifle at a deputy sheriff standing across the border on Minnesota land.” If an on-reservation action is committed with the intent of having an effect in Minnesota, the act itself is subject to Minnesota law.
In State of Minnesota, By its Minnesota State Ethical Practices Board v. The Red Lake DFL Committee, 303 N.W.2d 54 (1981), the Minnesota Supreme Court considered the activities of political committee which “occurred within the confines of the reservation.” The Court concluded, however, that,
“Plainly, the activities put in motion by the Committee were not confined to the reservation nor were they intended to be so circumscribed. Cf. State v. Rossbach, 288 N.W.2d 714 (Minn. 1980) …
“Defendants say nothing they did (placing the order; signing the check) occurred outside the reservation, but they choose to ignore that what they did caused something to occur beyond the reservation boundaries, namely, the dissemination of a political message, which is the activity here sought to be regulated.
“… We agree with the trial court that activities initiated within the reservation and reasonably calculated to influence voters outside the reservation are a proper concern of the state and subject to its reasonable regulation. In fact, defendants did not demonstrate that compliance with [Minn. Stat. § 10A.14] would have any adverse effect on tribal self-government, but even if some interference had been shown, the public interest in protecting the integrity of the election process, particularly through disclosure of significant financial influences on elected officials, is a compelling public concern. … [emphasis added].”
V. Tribal courts in Minnesota are part of a tightly centralized “tribal establishment” structure created by the Bureau of Indian Affairs in the 1930s, grounded in obsolete apartheid notions from an era when “Jim Crow” had not yet been discredited.
Like the BIA which it supplants – and with it contracts for more than a hundred million dollars annually in federal programming for Minnesota tribes – the “tribal establishment” controls almost every aspect of Indians’ lives on the reservation: housing, jobs, police, government, tribal businesses – and the courts.
Santa Clara Pueblo et al. v. Martinez et al. 436 U.S. 49 (1978) effectively gutted the Indian Civil Rights Act. In that case, often cited as precedent by tribal attorneys, the U.S. Supreme Court ruled that,
“A federal court civil action for declaratory and injunctive relief to obtain redress for an alleged violation of a right protected against infringement by an Indian tribe under Title I of the Indian Civil Rights Act (25 USCS 1302) cannot be brought against an officer of an Indian tribe, since no such private remedy can be implied from the statute, federal judicial review of tribal action being expressly authorized in Title I only through the provision making the writ of habeas corpus available to test the legality of a person's detention by an Indian tribe (25 USCS 1303). (White J., dissented from this holding.)”
The U.S. Supreme Court also made it clear in Santa Clara Pueblo v. Martinez that “tribal sovereignty” is generally limited to tribes’ “power of regulating their internal and social relations.” The Court clarified such limitations on exercise of ‘tribal sovereignty’ in Montana v. United States, 450 U.S. 544 (1981):
“The exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes and cannot survive without express congressional delegation.”
The Supreme Court also ruled in the same case that, with certain limited exceptions,
“The inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,” nor do such tribal powers extend beyond the reservation.
The U.S. Supreme Court recently ruled in Nevada v. Hicks, 533 U.S. 353 (2001) that: “The Tribal Court had no jurisdiction over the [42 U.S.C.] § 1983 [civil rights] claims. Tribal courts are not courts of ‘general jurisdiction.’ The historical and constitutional assumption of concurrent state-court jurisdiction over cases involving federal statutes is missing with respect to tribal courts, and their inherent adjudicative jurisdiction over nonmembers is at most only as broad as their legislative jurisdiction. Congress has not purported to grant tribal courts jurisdiction over § 1983 claims, and such jurisdiction would create serious anomalies under 28 U.S.C. § 1441.”
However, there is virtually no effective redress for tribal courts’ violations of Indian people’s constitutional rights on-reservation. There is also no appeal out any tribe’s particular tribal court system. Tribal court judges and attorneys are not bound by professional ethics and professional standards, and as the documentation provided to this court by others indicates, there are in some instances blatant conflicts of interest affecting tribal courts in Minnesota.
VI. Abuses deriving from tribal courts are symptomatic of structural problems in the system
As a case in point illustrating abuses deriving from tribal courts (and from jurisdiction-kiting), I have appended most of the news articles that the Native American Press/Ojibwe News has published about the custody dispute between Jawnie Hough, a Leech Lake enrollee, and Donald Brun, Jr., a Red Lake enrollee. Also appended is a copy of the most recent Order filed by Judge Terrance Holter of the Ninth Judicial District, Beltrami County [September 24, 2002].
The principal differences between the Hough / Brun case and certain other custody disputes involving the Red Lake tribal court are the light of public scrutiny shed on the case through Press/ON’s ongoing coverage, and that Ms. Hough has generally had competent legal representation.
As of November 5th, 2002, Donald Brun, Jr. had not responded to the Minnesota Court’s most recent order to return the child, Meghan Brun.
VII. Irregardless of what happens on an Indian reservation under whatever tribal jurisdiction, what happens in Minnesota is clearly the business of the Minnesota courts, and protecting the rights of people in Minnesota is among the mandates of this court.
There is no legal reason for not guaranteeing the full protections of the Minnesota Constitution to everyone within Minnesota jurisdiction – and there are compelling constitutional reasons to do so. “Full faith and credit” for any “judgment, decree, order, apprehension order, protection order, warrant, subpoena, record or other judicial act of a tribal court of a federally-recognized Indian tribe” is unconstitutional in Minnesota, as the foregoing discussion and appendices hopefully make clear.
The problems deriving from tribal courts probably aren’t going to go away any time soon, but the proposed “full faith and credit rule” is not the proper way to resolve the problems.
VII. I ask and request that this court not accept the proposed FF&C rule.
I ask and request that this court:
1. Do the comprehensive study that the Tribal Court / State Court Fourm did not, specifically including thorough and balanced scrutiny of:
a. tribal codes / constitutions
b. state and federal laws, precedents, and not only the treaties and “agreements” but also the treaty transcripts and the lists of names (signature rolls, annuity rolls) of the people affected by the treaties
c. the full body of tribal council resolutions now in effect
d. all tribal court dockets over the past ten years, as well as thoroughly studying a statistically valid sample of court cases from each tribal court
2. And, in the interim:
· recognize the hardships of Indian litigants and the difficulties of finding attorneys on or near reservations who are willing to challenge the tribal establishment
· make it clear that tribal court orders and judgments enter the Minnesota court system as evidence, not as orders and judgments from courts of law, because tribal courts are not courts of law
· clearly establish that the burden of proof is on the party submitting the tribal court order or judgment to a state court for consideration
· ensure that tribal constitutions, MCT reservation bylaws, tribal codes, rules of court, council and RBC resolutions, and all other relevant legal documents are deposited and catalogued in the state law library system, and hopefully also available online
· adopt a rule that in order to be considered by a Minnesota court, the party submitting the tribal court order or judgment must also provide:
a) grounds for assertion of jurisdiction
b) all applicable proofs of service
c) clear and convincing evidence that all constitutionally-protected rights were respected during all phases of the tribal court proceedings
d) court records, and transcripts on request
· and provide incontrovertibly that any tribal court order or judgment will be rejected by Minnesota courts if there is inadequate provision for discovery, subpoenas, or unavailability of other evidence, including tribal enrollment records where relevant
· Make it clear to the district courts that tribal court orders and judgments are not court decisions protected from collateral attack
Minnesota courts have a mandate to uphold the rights of the people of Minnesota.
 U.S. Department of Commerce Single Audit Database, http://harvester.census.gov/sac/dissem/entity.html