PROCEEDINGS OF THE 2008 WESTERN SOCIAL SCIENCE ASSOCIATION MEETING,
AMERICAN INDIAN STUDIES SECTION

Deadly Embrace: From State Sovereignty to Cooperative Agreements in a Public Law-280 State

Jeff Armstrong

As anthropologist Thomas Biolsi reminds us, American states are the "deadliest enemies" to indigenous aspirations of self-determination. This has certainly been true of Minnesota's relationship with the Anishinabe Ojibwe of White Earth and the other five reservations of the Minnesota Chippewa Tribe.¹ Like many other states, Minnesota has asserted virtually unlimited jurisdiction over reservations within its borders until specifically told otherwise by federal courts.² It is commonly assumed by observers that jurisdictional arrangements between tribes and states, perhaps with U.S. mediation, would advance justice by resolving longstanding tensions between the competing sovereigns.³ Yet a close examination of the history of White Earth and the MCT suggests that state-tribal agreements entered into without popular tribal consent could serve the assimilative functions of subordinating tribal to state sovereignty and preempting the development of truly autonomous legal and political institutions within the tribe.

Minnesota was, of course, designated a mandatory Public Law 280 state under the 1953 termination-era legislation. But it did not wait for a federal invitation or mandate. Instead, the state began asserting its sovereignty over reservations as early as the allotment period in the late nineteenth century and continued to do so through a succession of Republican, Democratic, and Farmer-Labor administrations. In 1893, the Minnesota Supreme Court ruled that the state had criminal jurisdiction over non-tribal Indians on White Earth in State v. Campbell, an adultery prosecution by Becker County. ⁴ The state high court held in Campbell that the county properly convicted the female defendant, a "mixed-blood" married to a white man off the reservation. The Court did, however, overturn the conviction of the Anishinaabe defendant in an opinion that conceded federal supremacy over the "guardianship" of reservation Natives. In tying federal jurisdiction to guardianship and tribal status, the court rejected the state's argument that it held full sovereignty in the absence of specific treaty provisions or language in the state enabling act precluding it.

But in affirming Minnesota's jurisdiction over non-Natives and non-tribal Indians on the reservation, the state court was opening the door to state sovereignty. If the state had the right to enter the reservation, it could easily assert de-facto jurisdiction, which it went on to do. It was also an interesting subject matter for the state to bring as a test case, one no doubt calculated to appeal to a sense of moral outrage among Minnesota citizens and federal legislators, rather than to any rational public policy purpose. As Minnesota agriculturalists and lumbermen looked hungrily upon undeveloped reservation farmlands and forests, the perception that Natives could have their way with married white women with impunity must have added to their resentment. Petitions to Congress to open up White Earth, Leech Lake, Red Lake reservations to white settlement in the 1880s were "signed by nearly everybody who can write in Northern Minnesota and Dakota," by one account, and Minnesota U.S. Congressman Knute Nelson responded with legislation in 1885 to allot Anishinaabe reservations to tribal members and open the remainder to white homesteaders.⁵ The Anishinaabeg universally rejected the allotment legislation in 1886, forcing Nelson to redraw the legislation in 1889 to allow tribal residents to take allotments on their own lands. This concession allowed the Anishinaabeg to thwart the legislative intent to remove and confine them to White Earth and Red Lake.

By 1898 the state had begun to make inroads on tribal hunting and fishing rights. In Selkirk v. Stevens, another case originating from Becker County, the Minnesota Supreme Court greatly impeded tribal hunting and trading rights by prosecuting a licensed Indian trader for exporting game purchased on the reservation.⁶ The subsequent dismemberment of the reservation under allotment would make it all but impossible for tribal members to legally transport game to their homes. As in the Campbell case, tribal sovereignty or interests were not at issue in the eyes of the court; it was simply a question of whether the state or federal government would reign supreme over reservation Natives.

State jurisdiction was the logical concomitant and stated goal of the allotment/assimilation program, though it proceeded much faster than originally anticipated. White Earth in particular was devastated by allotment, while the state was its greatest beneficiary, gaining title to nearly one-quarter of the reservation lands.⁷ In contrast, less than 5% of the Leech Lake Reservation remains in tribal trust, even less than White Earth's approximately 7%. Among the illegal and unethical means by which the Ansihinaabeg were swindled of their land was to be arrested for drinking in Detroit, county seat of Becker, and forced to sign over title to their allotment to pay the fine.⁸ According to a 1985 U.S. Senate Report, "fully 90% of the lands allotted to full-blood Indians had been sold or mortgaged" as of 1912.⁹ Warren Moorehead, who uncovered the White Earth scandal with the help of reservation Natives, discovered that in some cases deceased tribal members were "actually resurrected long enough to dispose of land which they had neglected to convey during life."¹⁰

Not content, however, with having wrested the bulk of reservation lands from the Anishinaabeg, Minnesota counties began taxing remaining Indian lands. At the same time, white settlers on the reservation began agitating for hunting and fishing rights after the superintendent posted signs reminding them of federal law. H.S. Frazer of the Mahnomen County Game and Fish Protective Association wrote in protest to U.S. Senator Moses Clapp of Minnesota, sponsor of the critical 1906 amendment to the Nelson Act allowing "mixed-bloods" to sell their allotments: "As you know there are a great many white men on this reservation who have acquired title to a good deal of land and now for the government to deprive us of the rights as citizens of the State of Minnesota, to hunt and fish seems to us a great injustice."¹¹ Within one year of the Clapp Amendment's passage, Mahnomen and Becker counties began levying high property taxes on allottees, setting them up for tax forfeiture.¹²

It is not entirely clear when Minnesota began imposing state fish and game laws on the Anishinaabeg, which seems to have occurred unevenly depending on the inclinations of county attorneys, but it was a recurring complaint at 1924 congressional hearings in Bemidji and Cass Lake. John Smith of the Winnibigoshish community on Leech Lake told the congressmen, "They do not permit us to go on and get our food from this reservation, meaning game and fish. We do as they tell us about it because if we go to work and kill a deer or partridge or ducks they arrest us. If we go to work and catch fish they will arrest us for it." ¹³ Leech Lake Reservation had been virtually swallowed up by the federal government to create the Chippewa National Forest in 1923. The U.S. Secretary of the Interior also unilaterally transferred 437 Leech Lake allotments totaling nearly 27,000 acres from the Anishinaabe owners to the national forest administration.¹⁴ Five years later, in 1928, 47 Anishinaabe petitioners demanded to know "when we had sold the game and fish to the white people….The game wardens are going around to the Indians and trying to search without warrants…Is the State of Minnesota going to have controll [sic] of the Chippewa Indians of Minnesota?"¹⁵

Passage of the Indian Reorganization Act in 1934 seemed only to hasten the state's efforts to consolidate control of the reservations. Although the Minnesota Supreme Court had held in 1930 in State v. Cloud that the state lacked jurisdiction to prosecute a Leech Lake man who killed a muskrat on his allotment, game wardens continued to arrest and otherwise harass Natives trying to feed their families. Even more ominously, the state attempted to take control of White Earth's Rice Lake, a vital wild rice lake where as many as two thousand Anishinaabeg converged in camps every year to gather the staple crop. In the New Deal era, however, the federal government was uniquely inclined to fulfill its trust obligations to tribes. The Justice Department filed a successful motion in federal court to condemn the Rice Lake reserve to prevent the state from converting it into a state game preserve.¹⁶ The Attorney General's office also instructed Minnesota U.S. Attorney George F. Sullivan in 1934 to intervene in a treaty rights case, State v. Joe Bush, Sr., but later complained that Sullivan seemed "to concede that the Indian in this case was amenable to the State game laws."¹⁷ Although Bush was a tribal member residing on White Earth reservation, the Minnesota Supreme Court ruled that since his allotment had been taken out of trust status the state had jurisdiction to prosecute him for trapping muskrats. In effect, the ruling opened the floodgates for state hunting and fishing enforcement, placing the burden on tribal members to prove that they possessed a trust patent to the land on which they were hunting. Inez Hilger concluded in her 1938 social analysis of White Earth that "maintenance of law and order fell under the state…." and that the Anishinaabeg were "subject to all laws of the state in which they reside."¹⁸ It was not until 1944 that an Anishinaabe defendant won a state Supreme Court appeal in State v. Jackson recognizing the right of tribal members to hunt on allotted trust land within reservation boundaries.^.19 Yet this was a hollow victory for the people of White Earth and Leech Lake, who had lost more than 90% of their land base. Needless to say, the state interpreted the ruling in its narrowest possible reading.

Although various forms of tribal political organization existed more or less continuously among the Anishinaabeg of Minnesota throughout the twentieth century, the contemporary tribal structure was established under the Minnesota Chippewa Tribe Constitution of 1964. The election to ratify the governing document was held by the U.S. Interior Department on September 12, 1963, resulting in a 57% favorable tribal vote of just 3,056 participants. As a subsequent federal lawsuit would charge, the voter list supplied by the tribe excluded numerous eligible voters and appeared calculated to meet the 30% voter threshold of the Indian Reorganization Act. Plaintiffs in the suit accused Interior Secretary Stewart Udall of acting "unjustly and wrongfully in conducting and regulating the election so as to insure a vote of thirty per cent of those entitled to vote."²⁰ In the election to ratify the first IRA constitution in 1936, the 2,072 voters participating constituted just 31% of the vote.²¹ Whether or not the current constitution was legitimately ratified under federal law, the low voter participation rates in both constitutional elections suggest at minimum a lack of enthusiasm for the centralization of power among the traditionally village-based Anishinaabeg.

The 1964 Constitution vested political power in Reservation Business Committees (RBCs) made up of a chairman, secretary treasurer, and one to three district representatives. In practice it became a five-member governing body on all six reservations. The chairman and secretary-treasurer of each reservation also serve on the 12-member Tribal Executive Committee (TEC), which in turn elects officers among its members. Although the constitution did not proscribe community councils, which had served as the primary outlet for representation of local concerns at the tribal level under the 1937 constitution, it did not assign them a constitutional role and most eventually fell into disuse. The constitution concentrated power in the hands of a few officials, but it did not clearly delineate the respective authorities of the RBCs and the TEC or of their individual officers, inviting future conflict. Despite obvious flaws, such as the requirement of a 2/3 vote of a five-member RBC to recall or remove a sitting committee member (do the math), the constitution has been amended just twice, in 1972 to reduce the voting age to 18 and limit voting rights to the reservation of enrollment rather than residence and in 2005 to bar felons from running for tribal office.

There seems to have been suspicion of the new tribal structures from the start, but the inherent flaws in the system only became apparent when tribal members began utilizing them in response to unpopular state-tribal agreements. Along with the new tribal constitution, the mid-1960s brought an infusion of federal program funding, most critically legal aid. Community efforts on Leech Lake to challenge police brutality and judicial discrimination in Cass Lake attracted widespread support from the Anishinaabeg, as did a serious an ultimately successful legal challenge to the jurisdiction of state conservation officers on the reservation.²² The Tribal Executive Committee voted unanimously in October 1968 to support Leech Lake's attempt to reclaim jurisdiction over its territory "with respect to hunting, trapping, fishing and wild ricing and the control, licensing and regulation thereof within the boundaries of the Leech Lake Reservation." As the TEC noted, Public Law 280 should have preserved tribal treaty rights, but the state simply refused to acknowledge them.²³ In affidavits collected by Twin Cities attorney Bernard Becker, who played a critical role in effecting litigation to restore Anishinaabe treaty rights, plaintiffs such as 79-year-old Maggie Bongo complained that state officers confiscated her fishing nets and had over the years seized guns, nets, fishing rods, and even cars from tribal members exerting their treaty rights.²⁴

In 1971 a federal judge ruled that the Nelson Act did not, as the state had argued, dissolve the Leech Lake reservation and that tribal members therefore retained hunting and fishing rights within its boundaries.²⁵ The American Indian Movement held a national convention in Leech Lake in 1972 and threatened to block the main highway into the reservation by force of arms on opening day of the state fishing season. Units of the state National Guard were placed on alert, and hundreds of state and federal agents gathered in the area for a possible confrontation.²⁶ The conflict was defused, however, through a state agreement with the Leech Lake RBC under the leadership of Simon Howard, who also served as TEC president. Ratified by the state legislature in 1973, the agreement would serve as a prototype for future state-tribal agreements widely opposed by both tribal and state citizens. Under it, the Leech Lake RBC would receive the proceeds from an optional $1 surcharge on state hunting and fishing licenses in exchange for suspending the exercise of exclusive tribal treaty rights on the reservation.²⁷ Non-Indians could thus hunt undisturbed (for an extra dollar), while tribal members would become subject to reservation game wardens enforcing state and/or tribal conservation codes, none of which were subject to popular approval.

While this and subsequent agreements on taxation and other areas aroused significant tribal opposition, it was the White Earth land issue that mobilized the Anishinaabeg politically and defined many activists' relationship with tribal government for years to come. George Aubid, descendant of a signatory to the Treaty of 1837, won a ruling from the Minnesota Supreme Court in 1977 that his allotment on White Earth was illegally taxed by the state and seized for non-payment. State legislators, such as Democrats Colin Peterson and Roger Moe, and Minnesota congressmen, led by Rep. Arlan Stangeland and Sen. Rudy Boschwitz, pushed for legislation to clear white landowners' title to some 100,000 acres of White Earth land found by tribal researchers to be clouded by the Zay Zah ruling.

A group that became known as Anishinabe Akeeng (People's Land) led a vibrant protest movement against the proposed White Earth Land Settlement Act (WELSA) with the nominal support of the RBC until 1985. Akeeng waged a sophisticated campaign that blocked passage of the first version of the settlement bill in 1983, compelling the state to agree to cede 10,000 acres of reservation land (less than 5% of what it held) in a deal brokered by Deputy Minnesota Attorney General James Schoessler, who had also played a role in the Leech Lake agreement.²⁸ The bipartisan Minnesota consensus for the supposed compromise resulted in a lopsided 111-7 house vote in the 1984 legislative session for the Minnesota enabling act to WELSA, which was to expire on Dec. 31, 1985 in the absence of federal legislation. The federal legislation had died for lack of official tribal support in 1983 and seemed destined for a similar fate in 1985. Akeeng and its supporters had forced the RBC at a stormy May 13, 1985 meeting to formally retract its support for the bill.²⁹ The TEC had unanimously opposed WELSA by resolution two weeks earlier. Yet White Earth chairman and TEC President Darrell (Chip) Wadena endorsed the settlement act in defiance of the two tribal resolutions, ultimately sparking a decade-long political insurrection for tribal constitutional reform.

The movement that became known as Camp Justice began on Leech Lake in 1987. Under siege from his opponents, TEC President Wadena had formally proposed a constitutional amendment reading in significant part, "All inherent powers of government shall be vested in the Tribal Executive Committee and the Reservation Business Committees, who shall exercise legislative, executive and judicial powers." In the wake of the WELSA debacle, however, an aroused tribal populace was in no mood to confer unlimited authority on its elected leaders. Led by Akeeng members and Leech Lake supporters, who called the proposed Amendment III an "attempt to impose a legal dictatorship," some 500 tribal members attended a special TEC meeting on the amendment on June 22, 1987. Massive opposition to the proposal prompted the TEC not only to withdraw the proposed amendment, but also to agree to hold a tribal constitutional convention within the next eighteen months to draft a new constitution reflecting popular demands for participatory democracy. It was not that tribal members did not want judicial and police powers, they did, however, desire a system of checks and balances that would allow them to hold tribal officials accountable. As of today, the TEC has yet to convene a constitutional convention, despite a similar pledge in 2004.

Beginning in 1988 and continuing until 1992, Camp Justice members began occupying tribal offices on Leech Lake and White Earth and establishing camps outside until the weather became intolerable. In the absence of a tribal police force, tribal officials were forced to rely on state officers to arrest and detain the protesters. As the grassroots movement produced more and more tangible evidence of White Earth electoral and financial fraud, including votes cast in the name of deceased tribal members, U.S. Attorney David Lillehaug initiated a broad investigation of White Earth and Leech Lake upon taking office in 1994. ³⁰ Wadena responded by reviving efforts to establish legal and police powers, sending a May 31, 1994 letter to BIA director Ada Deer stating that "the MCT and individual bands shall continue to exercise all such court authorities as are determined by the TEC to be authorized by the Constitution of the Minnesota Chippewa Tribe." He vowed to defy five separate Interior Department opinions dating back to 1980, which held that the tribe lacked authority for a court system in the absence of a constitutional amendment to authorize it.³¹ Associate Solicitor Michael J. Anderson dutifully replied with a one and one-half page ruling on August 16, 1994 that granted Wadena's request on the basis of heretofore unknown "safeguards and checks and balances sufficient to preserve the rights and powers of the tribal membership."³² Deer reaffirmed the decision in a September 20 letter to TEC President Norman Deschampe, who had since replaced Wadena, probably due to the federal investigation.³³ James Schoessler, who had made a career out of defending the state from assertions of tribal sovereignty but was now an MCT tribal attorney, wrote, "The (Ada Deer) letter is short—as we had asked—so there won't be lots of legal analysis to debate."³⁴ If there was no legal reasoning to support the decision, it followed that there could be no grounds on which to challenge it.

One week later, however, on September 27 the first indictment of the federal investigation was handed down against White Earth Election Judge Carley Jasken, who was charged with tampering with evidence for allegedly shredding 1994 election records sought by prosecutors. Eventually, the chairmen and secretary-treasurers of both White Earth and Leech Lake were prosecuted and convicted, along with a White Earth district representative and a former Leech Lake attorney, tribal judge, and state legislator--Harold (Skip) Finn. Although new leaders took office on White Earth and Leech Lake on the promise of constitutional reform, they faced stiff opposition from supporters of the previous regime and eventually alienated what should have been their base of support in the grassroots movement. Tribal police protection on any available terms must have seemed an attractive option for MCT reservation officials who faced not only increasingly aggressive and competing demands from their constituents, but also the sudden availability of federal funding under the COPS (Community Oriented Policing Services) program.

Individual tribal members had successfully challenged state traffic jurisdiction by 1996, an event that should have greatly impeded perceived racial profiling on the reservation by state officers. Instead, it prompted the state legislature to authorize law enforcement agreements between reservations and counties that would again essentially preserve the status quo, with the added burden of tribal officers accountable only to the RBC empowered to enforce state law against tribal members on the reservation.³⁵ Although the reservation officers were defined as state officers for some purposes, federal courts considered them tribal officers subject to tribal court jurisdiction.³⁶ Funded almost exclusively under COPS grants, amounting to $11.8 million to MCT reservations (see attachment 1), the tribal officers only added to tensions on the reservation that had arisen over continued county enforcement of state traffic laws. A cartoon in the Native American Circle newspaper in 1997 depicted a county deputy holding his gun at a stopped Native motorist, saying, "Here's my jurisdictional authorization, chief."

Many tribal members did not recognize the tribal police or courts, having never voted to authorize them, and on a significant number of occasions state and tribal police responded with force to legally-based challenges to their authority. By the time the state supreme court deigned to review the legality of the state-tribal law enforcement agreements in 2001, upholding the conviction of the daughter of a leading activist in Anishinabe Akeeng and Camp Justice, the justices summed up frankly the relationship of the agreements to tribal sovereignty: "The cooperative agreement gives concurrent powers of arrest and law enforcement to state-licensed tribal police officers, and the State of Minnesota, through Becker County, retains jurisdiction to charge and prosecute individuals alleged to have engaged in criminal conduct, as defined under Minnesota Statutes. As such, the cooperative agreement is not a step-back by the state from its jurisdiction on the reservation, but more akin to an augmentation of its law enforcement powers" (emphasis mine).³⁷

In fact, tribal members charge, the Minnesota law enforcement agreements have effectively expanded state authority beyond its legal jurisdiction, in violation of the Indian Civil Rights Act of 1968.³⁸ They have served to undermine tribal constitutional reform efforts and entrench a deeply flawed political structure, while insidiously integrating the tribe into a traditionally hostile state system. In the most thorough contemporary review of tribal policing issues, Eileen Luna-Firebaugh concludes that tribes should pursue retrocession of state PL-280 jurisdiction if they wish to develop effective sovereign legal institutions.³⁹ To facilitate this process and thus purge reservations of the toxic legacy of termination, Congress should amend ICRA to allow tribes to initiate binding tribal referendum votes to require state retrocession, while requiring tribal governments to subject any interim jurisdictional agreements with states to popular votes of their constituents. Such a move would at long last return authority over one of the most critical functions of tribal sovereignty to those most directly affected. It would also offer the practical benefit of establishing the legitimacy and popular support essential to the efficacy of any police force.

Cartoon by Patrick Rolo, from the Circle, 1997.