Native American Press/Ojibwe News

The rule of law

“The rule of law” has been a foreign and only very rarely heard phrase on Leech Lake and most other Indian reservations. Usually “the law” is what the tribal council or reservation business committee says it is, and that depends upon who is sitting on those entities at whatever time (and that changes with every election), as well as to whom “the law” is going to be inflicted or applied.

What’s passed for “the law” has ended up being an arbitrary and often capricious “rule of men” on Indian reservations. In the nineteenth century and first part of the twentieth century the “Indian Agent” wielded power which the BIA readily acknowledged was like “a little King,” and after many of the functions of the BIA were taken over by IRA tribal governments the tribal councils and reservation business committees often wielded power the same way.

During the December 13th Leech Lake RBC meeting to consider a petition to remove secretary/treasurer Archie LaRose, acting “meetings only” chairman Richard Robinson arrogantly dismissed LaRose’s challenges to the petition. According to verbatim records of that meeting (published in the December 20th issue of Press/ON), Robinson said, “Archie, they can’t fix it. I don’t know where you, ah, Archie, I don’t know who you challenge it to.” LaRose was objecting to the validity of the petition on several grounds, including that a number of signatures were allegedly forged, invalid because the people signing did not reside on the reservation, and that people who subsequently signed affidavits requesting that their signatures be removed from the petition were not honored in that request.

Deputy Judge B.J. Jones’s “Preliminary Injunction” ordering that the Leech Lake RBC refrain from throwing LaRose out of office “until such time as a trial is conducted” is a small step toward transforming the RBC into a lawful government, but it does not come anywhere near addressing all of the problems.

We think that Archie deserves a day in court. That’s why he hired a lawyer, to get him due process. He has his court date set on February 13th, at least for some of the issues.

Jones asserted tribal court jurisdiction over very narrow issues. Are the rights of Leech Lake members whose signatures were allegedly forged protected? Not under the January 21st decision. Are the rights of Leech Lakers to retain their elected officials until removed by regular tribal election or properly authorized referendum protected? No. There are a number of important issues which Jones sidestepped, including the question of whether or not the Leech Lake tribal court is a legitimate body.

In the analysis of his “Memorandum Decision,” B.J. Jones declines to assert the tribal court’s jurisdiction over some of the issues for which LaRose seeks a hearing because, according to Jones, the authority of the Leech Lake tribal court does not supercede the RBC by the Minnesota Chippewa Tribe constitution. One of the problems with Jones’s analysis is that the MCT Constitution does not authorize the establishment of tribal courts, and so – of course – there is no authority delegated to tribal courts in the constitution.

The IRA constitutions which the BIA drafted in the 1930s were never intended to underwrite governments with much of any power at all. They were obviously cobbled together as temporary documents and in a very different governmental situation overseen by a very authoritative BIA. They IRA tribal constitutions were mostly used to buttress and maintain the authority of the BIA, and the Reservation Business Committees (RBCs) and tribal councils established by these constitutions were intended to be weak, centralized, unaccountable to the people, and subordinate to the BIA.

Things have changed in Indian country since 1934, and the limited documents foisted onto Indians by the IRA need to be amended. The way they are now, these constitutions create more problems than they solve. They are part of the systemic problems plaguing reservation governance, and they make it almost impossible to govern fairly or for the people to protect their rights and hold their governments accountable.

Advocates of civil rights and governmental accountability can argue about “inherent power” with Indian-system attorneys, and quibble forever about what the first Justice Marshall was thinking in the early 1800s, but still there needs to be a constitutional amendment to authorize the Minnesota Chippewa Tribe to operate courts.

One of the several fatal logical contradictions in present-day “Indian law” is the disparity between Indian people’s rights protected under the U.S. and state constitutions and the “inherent power” which some courts – notably the U.S. Supreme Court in Santa Clara Pueblo – have written for Indian tribal governments. Nowhere in either the State of Minnesota or federal constitutions are there enumerated powers authorizing tribal governments to establish courts. Indians are citizens whose rights are unequivocally protected by the state and federal constitutions, and one of these days the U.S. Supreme Court is going to take the new green buffalo by the horns and acknowledge that Indians are human beings with constitutionally-protected rights just like everyone else.

There needs to be a constitutional convention at Leech Lake and the other MCT reservations. An “inherent” “tribal forum” without constitutionally-enumerated powers is probably better than a demonstration or takeover (or like some third world countries, assassinations and revolutions) but the present Leech Lake tribal court is far short of being a viable court of law.

Because of the way that “tribal sovereignty” has been interpreted, it was debatable whether Archie should bring his case in tribal court or federal court. Although – as a tribal official who has a certain obligation to maintain his tribal government – he decided to initially file in tribal court, Archie is also prepared to fight for his (and all Leech Lakers’) rights in federal court.

I commend Archie for taking this to court, and for putting himself on the line in striving for accountability and a government of law.

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