GRANITE VALLEY HOTEL LIMITED PARTNERSHIP, d/b/a Granite
Valley Hotel, Respondent,
v.
JACKPOT JUNCTION BINGO AND CASINO, a Business Enterprise of
the Lower Sioux Indian Community, Appellant.
No. C8-96-1024.
Court of Appeals of Minnesota.
Feb. 18, 1997.
Review Denied April 15, 1997.
Hotel sought damages from tribal casino for breach of contract to guarantee occupancy. Casino moved to dismiss on grounds of sovereign immunity, invalid consent to jurisdiction, and doctrine of comity. Hotel moved for declaration of jurisdiction. The District Court, Redwood County, David W. Peterson, J., declared that it had jurisdiction and that casino's owner, the Lower Sioux Indian Community, had waived immunity. Casino appealed. The Court of Appeals, Thomas G. Forsberg, Acting J., held that district court's retention of jurisdiction to determine effectiveness of explicit contractual waiver of sovereign immunity and consent to state jurisdiction did not interfere with tribal self-government.
Affirmed.
Randall, J., filed specially concurring opinion.
Syllabus by the Court
When a state district court and an Indian community's tribal court have concurrent jurisdiction over an action, the district court may properly decide issues of sovereign immunity and jurisdictional consent without deferring to the jurisdiction of the tribal court, if retention of jurisdiction does not interfere with matters of tribal self-government.
John E. Jacobson, Joseph F. Halloran, Jacobson, Buffalo, Schoessler & Magnuson, Ltd., Minneapolis, for Appellant.
Timothy W. Nelson, Nelson Personal Injury Attorneys, St. Cloud, for Respondent.
Considered and decided by RANDALL, P.J., and DAVIES and FORSBERG, JJ.
OPINION
THOMAS G. FORSBERG, Judge. (FN*)
This case arises from a breach of contract action filed by respondent, Granite Valley Motel Limited Partnership (Granite Valley), (FN1) against appellant, Jackpot Junction Bingo & Casino (Jackpot Junction), seeking monetary damages for Jackpot Junction's alleged breach of a motel occupancy agreement. On a pretrial motion, the trial court declared that it had jurisdiction over the case and that Jackpot Junction's owner and operator, the Lower Sioux Indian Community (Community), had effectively waived its sovereign immunity. Jackpot Junction appeals the order declaring jurisdiction, arguing the trial court erred in refusing to defer to the jurisdiction of the Community's tribal court for determination of whether the Community effectively waived its sovereign immunity and consented to the jurisdiction of Minnesota courts. We affirm.
FACTS
On November 14, 1991, Granite Valley and Jackpot Junction entered into a written agreement whereby Jackpot Junction, through the Community, guaranteed occupancy of a certain number of rooms in the Granite Valley Motel (motel) in exchange for Granite Valley constructing the motel. The contract provided that if the agreed-upon occupancy percentage was not satisfied, Jackpot Junction was obligated to pay to Granite Valley an amount equal to the charter rates for the balance of the unsold rooms. Because construction of the motel would require substantial capital, and the motel's only purpose was to serve Jackpot Junction patrons, Granite Valley required safeguards in the form of contract provisions waiving sovereign immunity and consenting to jurisdiction of Minnesota courts. Allen J. Kokesch, general manager of Jackpot Junction and purported representative of the Community, initiated the contract talks and ultimately signed the contract as "General manager, on behalf of The Lower Sioux Indian Community."
Jackpot Junction performed under the contract until approximately 1993, when it refused to continue paying for unsold rooms. That same year, the Community created its own tribal court, and later began construction on a new motel located on reservation property. On October 27, 1995, Granite Valley filed a complaint against Jackpot Junction in Minnesota district court, alleging breach of contract. Jackpot Junction moved the court to dismiss the action on the grounds of sovereign immunity, invalid consent to jurisdiction, and the doctrine of comity. In response, Granite Valley moved the court for a declaration of jurisdiction, which the court granted. Jackpot Junction now appeals the order declaring jurisdiction.
ISSUE
When a state district court and a tribal court have concurrent jurisdiction over an *137 action, does the doctrine of comity require the district court to defer to the tribal court's jurisdiction for resolution of sovereign immunity and jurisdictional consent issues?
ANALYSIS
When a trial court goes beyond the pleadings on a motion for dismissal, this court reviews the trial court's decision under a summary judgment standard. Minn.R.Civ.P. 12.03; McAllister v. Independent Sch. Dist. No. 306, 276 Minn. 549, 551, 149 N.W.2d 81, 83 (1967). On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Review under this standard is appropriate here because the trial court issued its order upon consideration of both the pleadings and supporting affidavits.
Jackpot Junction's challenge rests on the theory that notwithstanding a valid exercise of jurisdiction by a state district court, the court must, as a matter of law, defer to the Community's tribal court for determination of whether the Community effectively waived its sovereign immunity and consented to the jurisdiction of Minnesota courts. We disagree.
[1] When both a state court and a tribal court have jurisdiction to entertain a dispute involving questions central to the governance of an Indian tribe, the doctrine of comity generally divests state courts of jurisdiction as a matter of federal law if retention of jurisdiction by the state court would interfere with matters of tribal self-government. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14-15, 107 S.Ct. 971, 975-76, 94 L.Ed.2d 10 (1987); see National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856-57, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (1985) (reversing exercise of jurisdiction on grounds that exhaustion of tribal remedies is required before claim can be entertained by federal court).
[2] Deferral to a tribal court for exhaustion of remedies is not based on whether a trial court properly has jurisdiction over an action. Klammer v. Lower Sioux Convenience Store, 535 N.W.2d 379, 380 (Minn.App.1995). Rather, it is grounded in the federal policy of promoting tribal self-government. Id.; see also Iowa Mut. Ins., 480 U.S. at 16, 107 S.Ct. at 976 (holding that federal policy supporting tribal self-government "directs a federal court to stay its hand in order to give the tribal court a 'full opportunity to determine its own jurisdiction' ") (citation omitted). Thus, the question before us is whether the facts and legal theories underlying this case require analysis of issues central to the governance of an Indian tribe, which must be heard by a tribal court. We hold they do not.
[3] [4] Jackpot Junction contends that this case begs the question of proper delegation of authority to Kokesch, and, therefore, it is necessary to review the Community's delegation documents and procedures. However, the facts of this case present issues of contract interpretation and apparent authority, rather than actual authority. In rendering its decision, the trial court reviewed the contract, pleadings, and affidavits submitted by both parties, without having to resort to tribal documents or procedures for guidance. While examination of tribal documents may be necessary to resolve a question of actual authority, apparent authority is a question for the trier of fact to decide after considering the parties' dealings under the contract, the defendant's actions, and other outward manifestations of delegation of authority. See Hagedorn v. Aid Ass'n for Lutherans, 297 Minn. 253, 257, 211 N.W.2d 154, 157 (1973) (holding apparent authority presents question for trier of fact). Under these circumstances, we conclude the trial court's exercise of jurisdiction and determination of the Community's waiver of sovereign immunity does not "undermine the authority of the tribal courts" or "infringe on the right of the Indian[ ] [tribes] to govern themselves." See Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed.2d 251 (1959) (disallowing state exercise of jurisdiction that would intrude upon authority of tribal courts over reservation affairs).
Jackpot Junction next urges that this court's recent decision in Klammer is dispositive in this case. In Klammer, the Community *138 was the defendant, and we deferred to the tribal court for resolution of jurisdictional and sovereign immunity issues. Klammer, 535 N.W.2d at 382. However, Klammer is distinguishable from this case. First, the basis of the action in Klammer was property damage that occurred on the premises of the Indian reservation, id. at 379, whereas this case involves a contract performed off the reservation. Second, unlike the situation here, the Community in Klammer did not explicitly waive its sovereign immunity or consent to jurisdiction of the Minnesota courts. See generally id. at 380. Because our determination of the Community's sovereign immunity and consent to jurisdiction in Klammer necessitated examination of tribal documents such as the "sue and be sued clause" contained in Community documents, that action involved issues of the Community's self-government. Here, however, none of these documents are at issue. Thus, Klammer does not impact our ruling today.
Finally, Jackpot Junction's interpretation of the exhaustion rule as applied to these facts would effectively render all waiver and consent provisions in this context impotent. As a result, the Community's economic independence, which forms the basis of the Community's self-determination, would most likely suffer. When the Seventh Circuit confronted a similar fact situation, it noted:
[E]conomic independence is the foundation of a tribe's self-determination. If contracting parties cannot trust the validity of choice of law and venue provisions, [the Indian business] may well find itself unable to compete and the Tribe's efforts to improve the reservation's economy may come to naught.
Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 815 (7th Cir.1993), cert. denied, 510 U.S. 1019, 114 S.Ct. 621, 126 L.Ed.2d 585 (1993). This is surely the case here, where the Community actually performed under the contract for several years before deciding to breach the contract and build its own motel. For the above reasons, we hold the trial court did not err in refusing to defer to the Community's tribal court for determination of whether the Community effectively consented to jurisdiction of the Minnesota courts and waived its sovereign immunity.
Because the district court in this case may decide contract and apparent authority issues without interfering with matters of tribal self-government, the court need not defer to the jurisdiction of the tribal court for resolution of whether the Community effectively waived its sovereign immunity or consented to state court jurisdiction.
Affirmed.
RANDALL, Judge (concurring specially).
In Indian country it is what you know, not what you read. The truth is in the shadows, in the wind, in the water, in the rocks, and in the silence.
Gerry Spence, the noted Wyoming trial attorney, is a self-styled "gunner for justice." Spence, who has a deserved reputation for backing up what he says, learned early in life the importance of not just reading, but thinking; of not just looking, but seeing; of not just hearing, but listening. In his book, With Justice for None, he uses a quote from Thomas Hobbes to make the point:
Although I respect the valuable insights of some academicians, and shamelessly cite them as authorities whenever it serves my purpose, I believe their conclusions are often flawed, for they have failed to expose themselves in the workplace of the law, in the pits where the killing is done and the most pungent truths revealed. Naturally my kind likes the boast of Thomas Hobbes: "Had I read as much as other men, I should have known as little as other men."
Gerry Spence, With Justice for None, at xi (1989).
Albert Einstein, himself one of the most gifted thinkers and theoreticians of all time, also knew the importance of participation in life and hands-on experience to supplement that which can be gained from books, and at times to learn what cannot be understood from books at all. Einstein was an acknowledged opponent of armed conflict and, thus, also an opponent of virulent "nationalism" and excessive trumpeting of "sovereignty." The fledgling League of Nations in 1931 "encouraged an exchange of letters between leaders of thought" for the purpose of bringing to bear the best minds of the time on the problem of war, a subject which to Einstein was "the most insistent of all the problems civilization has to face." As part of the collection of letters, Einstein wrote a letter of four pages to Dr. Sigmund Freud, which was later published in a limited edition under the title "Why War? "
In pertinent part, Einstein said:
These are the actions which have always been successful when the goal was to bring together larger political communities, and in this way to prevent armed conflict between them. The road to international security demands the unconditional renunciation by all nations of part of their freedom of action and sovereignty. I doubt that there is another way to international security.
* * * The desire for power makes the ruling party of a nation resist any limitation of its rights to sovereignty; the leaders feel their position of power threatened, as do industrialists whose economic strength is based on armaments and war.
Albert Einstein, Why War? (1933). Einstein then went on to discuss a question that puzzled him, namely how groups of people could permit themselves "to become aroused to the point of insanity and eventual self-sacrifice * * *." Id.
In answering his own question as to how communities of people could get so far off track, he pointed unerringly to the inability of the "ivory tower crowd" to contribute to the formation of social justice in a multicultural world, war being the extreme example of social injustice. Einstein said:
This leads me to a last question: is it possible to so guide the psychological development of man that it becomes resistant to the psychoses of hate and destruction? I am not thinking only of the so-called uneducated. In my experience, it is much more the so-called intelligentsia who succumb most readily to mass suggestion, because they are not used to drawing immediately from experience but encounter life in its most easily and completely understood form--the printed page.
Id.
It can be said that the unlikely trio of Thomas Hobbes, Gerry Spence, and Albert Einstein would have been able to contribute to the serious and institutionalized problems facing Indian country today. You see, all three had the courage to face issues of social justice, not shy away from them.
I concur specially in the result, our affirmance today of the trial court on all issues. That affirmance takes but a quick look at prevailing contract law. The essence of contract law is that parties should do what they say they will do. Our decision here assures simply that, as Justice William Mitchell once said, "just debts will be paid." But I have to add to the analysis of my colleagues to cover the real issue of whether appellant, a recognized Indian reservation, is a true "Sovereign Nation," or is rather a semi-sovereign governmental entity. Appellant demands an answer to that issue. I suggest that case law, when read, not just cited, makes it clear that reservation tribal governments are not true independent sovereigns, but rather semi-sovereign entities totally under the jurisdiction of the United States Congress and the United States Supreme Court. In fact, there are no cases that state otherwise.
The eleven American Indian reservations in this state, the four Dakota Sioux (including appellant) south of the metro area, and the seven Anishinabe/Ojibwe reservations in the northern half of the state are simply eleven semi-sovereign governmental entities, but, tragically, eleven semi-sovereign governmental entities that do not extend the basic rights of the Minnesota Constitution and the United States Constitution to their people.
This lawsuit on its face is a simple breach of contract lawsuit for money damages brought by respondent against appellant. But appellant, in its reply brief, challenged this court to go outside the black letter, four corners of the contract (the contract itself, the court file, and the entire record to date show an alleged blatant breach of that contract by appellant) and address issues of sovereignty and sovereign immunity. I accept the challenge. Appellant has a right to that. It is entitled to a legal analysis. (FN2)
I agree with appellant that "sovereignty" and sovereign immunity is the only real issue in this case. If it were not for this issue, both appellant and respondent, as they agreed to in writing, would be presenting their respective claims and defenses in the Minnesota District Court for the Fifth Judicial District, Redwood County, where this case started and from where the appeal came to this court. But as appellant's brief states:
In reality, Granite Valley alleges that it has an enforceable contract with a sovereign tribal government, and that the contract may be enforced in State Court based on the purported assent of that government. These assertions require a court's analysis to go beyond simple notions of contract law, to also address issues of sovereignty and sovereign immunity.
Appellant's reply brief further declares:
With this backdrop, the District Court should have looked at the core challenge to the contract in this action: The authority, or lack thereof, of a non-Indian to waive tribal sovereign immunity. In addressing this challenge the Court undoubtedly would be required to evaluate tribal sovereign immunity, relevant tribal resolutions or ordinances regarding waivers of immunity, and possibly the common practice and custom of the Community in waiving its immunity.
(Emphasis added.)
The facts are simple and not in dispute. Respondent Granite Valley Motel is a limited partnership consisting of eight individual investors. Appellant Jackpot Junction is a business enterprise of the Lower Sioux Indian Community and operates as a casino on Indian land near Morton, Minnesota, in Redwood County.
Appellant wanted an off-reservation motel close enough for its patrons. Respondent was willing to consider a substantial investment but needed a guaranteed occupancy of a certain number of rooms in its motel, as without guaranteed occupancy (meaning guaranteed cash flow) by appellant, there would be no reason for respondent to construct a motel in a relatively isolated area. Appellant understood this fully and completely, and as a part of the negotiations agreed in the written contract that appellant would guarantee occupancy of a certain number of rooms until 1999.
Respondent wanted a specific waiver of sovereign immunity and a specific consent to Minnesota state court jurisdiction written into the contract as part of the negotiations and before respondent would sign it. Appellant understood these negotiations and consulted with an attorney about them. The uncontradicted affidavit of plaintiff J.P. Martin is part of the trial court record. It said in pertinent part:
I had discussions with Mr. Kokesch about the issue of sovereign immunity and he told me that he had talked to another individual by the name of Bluedog, and that I should go ahead and put that clause in the contract if I was concerned about that issue.
Appellant and respondent expressly wrote into the contract a waiver of immunity and an express consent to Minnesota state court jurisdiction. Nothing was put into the contract, or even discussed by appellant, formally or informally, that they wanted to "reserve the right to back out" of this express waiver of immunity. Neither the negotiations nor the written contract contained any reference to appellant's tribal court system. As of the date of the signing of the contract, appellant did not have its own tribal court system. They created one later. (Evidence is accumulating that the fairly recent creation of tribal courts in Minnesota may be part of a calculated plan by tribal governments and their advisors to create a totally controlled in-house court system to shield themselves from lawsuits and accountability in state district court where the mandates of state and federal constitutions apply.)
The contract was formalized in writing and appears in full in respondent's brief. The contract is dated November 6, 1991 and was signed on November 14, 1991 in the following manner:
Yours truly,
GRANITE VALLEY MOTEL LIMITED PARTNERSHIP
By: Hall & Associates, Inc.
Its Managing General Partner
By: /s/ Greg Hall
Greg Hall, C.E.O.
Agreed and acknowledged this 14 day of November, 1991, by The Lower Sioux Indian Community, owner and operator of Jackpot Junction Bingo and Casino.
/s/ Allen J. Kokesch
General Manager, on behalf of The
Lower Sioux Indian Community
The contract contains five sections. The second section shows the term of appellant's guarantee to respondent. This section is part of the breach and states:
2. Term of Guarantee. This is a continuing guarantee, for the term commencing on commencement of occupancy of the motel and ending December 31, 1999.
Appellant unilaterally breached this contract in 1993 and refused to perform under its terms.
That same year, appellant created its own tribal court under its own jurisdiction, which tribal court appellant now wants to hear this lawsuit first. Appellant then went on to construct its own motel on reservation property which directly competes with respondent's. At the same time, appellant continued an ongoing breach of its contract with respondent. The waiver of immunity and consent to jurisdiction in Minnesota district courts is set out in the third section, which states:
3. Waiver. The Guarantor hereby waives sovereign immunity by virtue of its status as an independent Indian Nation and consents to jurisdiction of the Courts of the State of Minnesota in the interpretation and enforcement of this contract of guarantee.
Appellant, as "Guarantor," continued on in the fourth section, which states:
4. Character of Obligation. The obligation of the Guarantor is a primary and unconditional obligation binding upon this Guarantor, its legal representatives, successors and assigns.
After appellant unilaterally breached the contract and refused any consideration to respondent, respondent, pursuant to the contract, sued in the closest Minnesota district court with venue and jurisdiction. The trial court, which we affirm today, found that with the words of the contract clear and unambiguous, there was no need to look beyond the four corners of the contract.
The trial court, in ruling that respondent had the right to bring this lawsuit in district court and that the trial court had the authority to keep the lawsuit there, stated in its memorandum:
At this stage of the proceedings the contract must be examined on its face. The contract under the heading "Waiver" states, "The Guarantor hereby waives sovereign immunity by virtue of its status as an Indian Nation and consents to jurisdiction of the Courts of the State of Minnesota in the interpretation and enforcement of this contract of guarantee." The document is signed by a representative of plaintiffs, as well as Allen J. Kokesch, General Manager, on behalf of The Lower Sioux Indian Community. Above Mr. Kokesch's signature is an acknowledgment "by The Lower Sioux Indian Community, owner and operator of Jackpot Junction Bingo and Casino."
In its memorandum, the trial court went on to state:
At this stage of the proceedings the Court must give great deference to the face of the contract, which contains the explicit waiver of sovereign immunity referred to above. If assertions by affidavit at this early stage of the proceeding were sufficient to remove this matter to tribal court, then the clear waiver of sovereign immunity clause in the contract would be without meaning.
(Emphasis added.)
In its memorandum, the trial court pointed out that even the United States, a true sovereign, can consent to be sued, waive its sovereign immunity, and further stated that when consent to be sued is given, the terms of the consent establish the bounds of a court's jurisdiction. United States v. Mitchell, 445 U.S. [535] at 538 [100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980)]; United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058, (1941); Reynolds v. United States, 643 F.2d 707, 713 (10th Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981).
The court finds that this contract does contain an expressed waiver of sovereign immunity, and as such establishes this Court's jurisdiction over the above-entitled matter.
Appellant, in attempting to get out of a contract which it signed and a contract for which it has yet to allege a defense on the merits, spends most of its energy in its brief arguing that Klammer v. Lower Sioux Convenience Store, 535 N.W.2d 379 (Minn.App.1995), controls.
Once the facts of Klammer are read, it is clear that it is distinguishable and does not have relevance to the legal issue here, other than to buttress our affirming the trial court. In Klammer, there was neither a negotiated consent to jurisdiction nor a negotiated waiver of immunity clause. There could not have been. Klammer was a spontaneous tort which resulted in property damage. In Klammer, a non-Indian patron of a convenience store owned by the Indian Community sued the Indian Community for property damage when a ruptured hose at the store sprayed fuel over him and the passengers in his car. Id. at 380.
Obviously, Klammer and the convenience store owners did not sit down together and bargain out in writing where jurisdiction would lie and whether immunity would be waived if he should drive up to the store and have fuel sprayed on him. Thus, because it was a spontaneous inadvertent act happening on a reservation, the Klammer court felt compelled to go through an analysis of concurrent jurisdiction and comity. Our decision in Klammer points out the murky swamp that state and federal courts find themselves mired in when they attempt, in good faith, to research "appellant's version of sovereignty." The Klammer court ended up comparing identical tribal constitutional provisions of two different tribes and concluding that identical wording in the two constitutions could be interpreted two different ways. Id. at 382-83.
A semi-sovereign governmental entity is a large category including the 50 states of the United States of America and the many counties, towns, cities, school districts, etc. within a state that are also governmental entities with some limited or qualified immunity from lawsuits. All semi-sovereign governmental entities have carefully structured limited or qualified immunity to make certain discretionary decisions without fear of being sued. All semi-sovereign tribal entities should have a right to this once their organizations, as law-abiding municipalities subject to state law, including the Minnesota Constitution, and the federal Constitution, are in place. This is the only way to give Indian people half a chance to make it to the twenty-first century.
So far, we have not seen fit to require tribal governments to abide by the United States Constitution, its Bill of Rights, and individual state constitutions. This is both morally and legally inexcusable, as it is a race-based distinction--not helping a race, but killing a race.
This is the black hole we put ourselves into as long as we avoid the hard issue of sovereignty, which appellant has correctly framed as the real issue in this case. I *143 respect appellant for articulating the real issue.
Economic transactions and commercial intercourse between off-reservation entities and tribal governments is already beginning to seriously decline to the disadvantage of Indian people. Sovereignty, as now used, is causing the disintegration of tribal government credibility. This deterioration of tribal credibility is noted in federal court cases.
When faced with facts similar to ours, the Seventh Circuit Court of Appeals has refused to defer to a tribal court. See Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 815 (7th Cir.1993) (holding that tribal exhaustion doctrine did not require stay of proceedings in federal court). In Altheimer, an Illinois corporation brought suit against an Indian manufacturing corporation for breach of contract. Id. at 807. The parties signed a letter of intent, upon which the contract was based that included a waiver and consent provision almost identical to the one in this case. Id. The Altheimer court held that it is necessary in every exhaustion rule case to examine the factual circumstances of the case "in order to determine whether the issue in dispute is truly a reservation affair entitled to the exhaustion doctrine." Id. at 814.
Significantly, the Altheimer court held that by including the waiver and consent provision in its contract, the Indian community "wished to avoid characterization of the contract as a reservation affair by actively seeking the federal forum." Id. at 815. Altheimer further stated:
In the Letter of Intent, [the Indian company] explicitly agreed to submit to the venue and jurisdiction of federal and state courts located in Illinois. To refuse enforcement of this routine contract provision would be to undercut the Tribe's self-government and self-determination. The Tribe created [the company] to enhance employment opportunities on the reservation. * * * [E]conomic independence is the foundation of a tribe's self-determination. If contracting parties cannot trust the validity of choice of law and venue provisions, [the Indian company] may well find itself unable to compete and the Tribe's efforts to improve the reservations' economy may come to naught.
Id. (emphasis added).
A recognized exception to the normal regard for "comity" is bad faith. The requirement does not apply where assertion of tribal jurisdiction "is motivated by a desire to harass or is conducted in bad faith," or * * * where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction.
National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 856 n. 21, 105 S.Ct. 2447, 2454 n. 21, 85 L.Ed.2d 818 (1985) (quoting Juidice v. Vail, 430 U.S. 327, 338, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977)).
The undisputed facts here fit precisely within the "bad faith exception" to the exhaustion rule. Appellant intentionally waived sovereignty and consented to state court jurisdiction to get economic benefits from respondents. Appellant operated for two years under the contract and took the benefit of the contract. It breached the contract in 1993 and started construction of its own hotel on reservation property. Appellant's decision to breach the contract was the product of pure opportunism and not the product of any "cultural decision" to have its own hotel. At the same time its own hotel was constructed, appellant instituted its own tribal court that would be a friendly forum for appellant, which is perhaps more than a coincidence.
Now, examine the "court" that appellant insists should have the privilege of original jurisdiction, the absolute right to first look at the issues. This is the court that appellant infers could do a better job than a Minnesota district court examining the "authority, or lack thereof, of a non-Indian to waive tribal sovereign immunity." After examining appellant's brief and the tribal constitution of appellant, the remark about a non-Indian perhaps not having the authority to waive immunity is a nonargument at best, an inherently racist remark at worst. I question whether the argument is even appropriate to voice in a legal brief. In the Minnesota *144 Court of Appeals, the Minnesota Supreme Court, and our state trial courts, each having state-wide jurisdiction, there are judges representing both genders and all four colors, red, black, yellow and white. My use of descriptive colors is not belittling, but cultural to Native people. In Indian culture, these four colors are considered sacred, representing the four winds, the four directions, the four great races, and other symbolism. What I write about the four colors is true and culturally correct enough for analysis.
The four colors accurately describe our multi-cultural state and country. All "real" judges, state and federal, have the inherent power on cases that come before them to reflect on and decide the merits irrespective of their own particular race and irrespective of the race, creed or culture of litigants.
Appellant's argument about non-Indian versus Indian becomes arrogant and fatally flawed. The Lower Sioux Judicial Code itself, the one appellant wishes to control the outcome of this case, does not even require that the judges have Indian blood to any degree. That is not surprising. Throughout the Indian reservations in this state that have tribal courts, non-Indians, at times, have served on some or all of them. Appellant's constitution in Chapter 3 provides:
JUDGES
Section 1. Number of Judges.
The Tribal Court shall have a panel of three judges, a Chief Judge and two Associate Judges, at least two of whom shall be lawyers experienced in the practice of Tribal and federal Indian law and licensed to practice in the highest court of any state. By resolution, the Lower Sioux Community Council may increase the number of Associate Judges.
There is nothing in the rest of Chapter 3 indicating that any quantum of Indian blood is needed. What the constitution and the judicial code make clear is that the reservation business council (the equivalent of a mayor and city council members) itself maintains absolute control over the qualifications, appointments, salaries, and hiring and firing of those who serve as tribal judges. Appellant allows a nonlawyer to be a judge. Appellant requires that the other two judges on its three-judge panels be licensed to practice in any of the 50 states. Thus, appellant's court claims the authority over the liberty and property of Minnesota Indians and Minnesota non-Indians alike without adhering to the slightest shred of qualification under the laws of Minnesota and the Minnesota Constitution pertaining to the appointment, qualifications, selection, and disciplining of state judges. The Minnesota Supreme Court retains to itself (as the supreme courts of most states presumably do) the final determination on who shall be allowed to take the Minnesota State Bar examination and who is qualified to be sworn in. They retain to themselves the final authority to consider the fitness of a judge, including all discipline, from mild censure up to removal from office. All lawyers and judges in Minnesota know these rules and submit to them and all other Minnesota legislation that affects our courts. Now, to the point. Neither the Minnesota Supreme Court nor the Minnesota Legislature has any authority or control whatsoever over who any tribal government chooses to call a "judge."
Appellant's Judicial Code, under "Qualifications" provides:
Section 4. Qualifications.
In addition to the qualification requirements in Section 1, each judge must also be 25 years or older. The following individuals may not serve the Community as judges of the Tribal Court:
(a) The Clerk of Court, Assistant Clerks, and members of the Lower Sioux Community Council;
(b) Those who have been convicted by a court of the United States or of any State of the United States for a felony, as a felony is defined by the laws of that jurisdiction or misdemeanor within one year immediately preceding the proposed appointment or contract as judge or justice.
(Emphasis added.)
It must be observed that since appellant claims the right to set judicial qualifications, or the lack thereof, it could, with impunity, reduce the time after conviction for a crime from twelve months down to twelve days, or do away completely with this "hinderance." It has the authority, by amendment, to do away with the requirement that two of the three tribal court judges be lawyers admitted to practice before any state. Under its version of "sovereignty" and its judicial code, three lay persons that it decides to appoint, all previously convicted of a crime, could decide the liberty and property of all state residents, Indian and non-Indian, who come before them.
Each of the eleven Minnesota reservations claims it is an individual sovereign and thus can have its own rules and its own constitutions. All eleven cite the same cases and arguments that appellant cites here to support their claim for their own "independent courts" and their own "sovereignty." Thus, it is appropriate to consider abuses on other reservations, as each of the eleven claims it would have the authority to do likewise if it so wished. They might say, "Well, we would never do that," but they would always retain the right to change their mind under their version of "sovereignty" and do that. Just ask them.
On one reservation in this state, there is in place what I consider to be the worst individual case of abuse of judicial process, and abuse of a state citizen, that I have ever seen.
A Red Lake ordinance allowing tribal judges to overturn jury verdicts will face its first constitutional test in a federal court's response to a habeas corpus petition by Ronald Smith.
Smith was found not guilty of marijuana possession Jan. 25 by five of six Red Lake jurors. But Chief Magistrate Wanda Lyons, citing a Red Lake ordinance passed just two weeks earlier, overturned the verdict and remanded Smith to the reservation jail, where he is currently serving a 150 day sentence.
A petition of Habeas Corpus from a prisoner requires a federal court to rule on whether that detention is in violation of the petitioner's constitutional or legal rights.
Passed Jan. 9 by a nearly unanimous vote of the tribal council, Red Lake Ordinance 407.115 stipulates that "the judge in a criminal case may render a verdict contrary to that reached by the jury." Although a jury determination of guilt still requires such a finding by "all the jurors except one," the presiding judge could arbitrarily, and without explanation, set aside a guilty or not guilty verdict.
Smith's brief for Habeas Corpus asserts that the law renders the jury process irrelevant. "The Tribe, by enacting Section 407.115, has clearly taken the position that its members are not entitled to a jury trial in criminal cases," states the brief prepared by Minnetonka attorney Richard Meshbesher. The attorney argues that the law is contrary to the fourth and six [sic] amendments to the U.S. Constitution, as well as a violation of the Indian Civil Rights Act's guarantee of "due process of law."
Prosecutor attorney Denfield Johnson referred questions on the subject to his "bosses," the Red Lake Tribal Council. Council chairman Bobby Whitefeather and secretary Judy Roy were unavailable for comment.
Jeff Armstrong, Red Lake man jailed, sentenced after not guilty jury verdict, Native American Press, Mar. 8, 1996, at 1 (emphasis added).
I have no knowledge that even in any part of the deep South between the Emancipation Proclamation in 1863 and Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), in 1954, any sitting judge, trial or appellate, claimed the right in a criminal case to take a verdict of not guilty away from a jury, convict the defendant, and sentence him to imprisonment.
The outcome of the above-described travesty was that defendant's attorney brought a writ of habeas corpus in federal court and while the magistrate was taking the matter under advisement, the tribal government and its prosecutors folded and plea bargained the matter out. They knew better than to risk a full and open public hearing on the record on this issue.
The sequence of events makes it clear, by definition, that Indian tribes are not true *146 "Sovereign Nations," but remain, as always, subject to the plenary power, and the will and complete control of Congress, and ultimately the federal judiciary. If they were truly sovereign, there would not have been a legal writ in the nearest federal court, thus denoting jurisdiction and power over the proceeding there. Neither the tribal court nor the tribe even attempted to keep the matter out of federal court on the grounds that a Minnesota federal court had no right to hear it. The deeper issue is, why such a complete lack of oversight over important constitutional guarantees on Indian reservations, an oversight to the point where this tribal ordinance was passed and actually enforced, and would still "be in force" and hidden from public view except for exposure by the press.
In Minnesota when you have successfully passed the Minnesota Bar examination and have been sworn in, your admission to the nearest federal district court and the federal system, although ceremonial, is automatic. A licensed attorney, not under some form of suspension, can go into any court in this state without fear and represent his or her client. On reservations throughout Minnesota, tribal governments have set extra qualifications over and above admission to the Minnesota Bar, have at times refused to admit licensed members of the Minnesota Bar to its tribal courts, and at times have prevented litigants in tribal court from bringing in the attorney of their own choosing. Some tribal courts in this state do not let you bring in your own attorney on family law matters, but instead give you a "court-appointed advocate" who may or may not be an attorney.
Whether advocates are attorneys or not, they are selected by tribal government. Their qualifications, or lack thereof, are set by tribal government and their hiring, salaries, and discharge are under the control of tribal government.
Recently a non-Indian woman living outside a reservation started a divorce action with her Indian spouse, who was enrolled on a reservation. She commenced a lawsuit in a proper state district court with venue and jurisdiction. He commenced his lawsuit in the tribal court. The tribal court somehow obtained jurisdiction on her divorce, including matters of child custody, and she was required to go into tribal court without her attorney and instead with a court-appointed advocate. Although technically the tribal court gave a version of joint legal and physical custody and visitation, etc., she has had a tremendous hardship getting visitation off the reservation to the point where her own attorney suggested, only half in jest, that if she was on the reservation and could get her children into a car, it would be wise to speed across the reservation borders and attempt to bring the minor children within the venue of the local state district court. She and others similarly situated have faced severe obstacles in getting visitation and in the collection of child support from on-reservation obligors. Minnesota's normal legislatively-mandated enforcement provisions run into serious problems when the obligor lives and works on a Minnesota reservation. It can be noted that the off-reservation spouse can be either Indian or non-Indian; he or she will still have the same problems in reservation tribal courts when going up against a reservation resident.
It has become common knowledge throughout the state for attorneys whose clients have commercial or personal dealings with reservations that tribal courts should be avoided if possible.
There is a cruel irony in the case before us. It is that appellant would have had every single right to go into state district court and demand that its contract be honored by respondent if respondent had committed the alleged open and blatant breach. I suggest that appellant's attorney, if respondent had breached the contract, would have immediately sued the matter out in state district court, as would be his right, to ensure that his client, tribal government, would have a full and fair hearing in an independent state judicial forum with the power to grant the judgment and the power to enforce it against respondent if respondent's breach was proven.
After the courts of this state, trial and appellate, have gone out of their way to construe, on behalf of tribal government, the consent to sue and be sued clauses and waiver of jurisdiction, in favor of tribal government, here is appellant's position today. Even with a specific waiver in place that they do not deny, they refuse to willingly come into state district court to which they would have an absolute right of access if they so chose.
Indian people living on reservations know that change must come and they know they will suffer economically if change does not come, since without change, tribal government credibility will disappear. As the Altheimer court noted:
If contracting parties cannot trust the validity of choice of law and venue provisions, [the company] may well find itself unable to compete and the Tribe's efforts to improve the reservation's economy may come to naught.
983 F.2d at 815.
The recent flow of Minnesota cases, trial and appellate, have had nothing to do with cultural preservation. They have to do only with money and a tribal government's continued insistence on the right to be unaccountable to anyone, Indian or non-Indian, in any state court, unless they choose to go to state court. Otherwise they try to force parties into their own hired tribal courts.
The bulk of Minnesota cases have involved reservations with Indian gaming casinos stubbornly refusing to defend the merits of any case in state court.
It is not known to all reading this opinion that the following list of state and federal constitutional guarantees and rights are not in place for Minnesota Indians domiciled on a reservation:
There is no guarantee that the Minnesota Constitution, the United States Constitution and its precious Bill of Rights will control. There are no guarantees that Civil Rights Acts, federal or state legislation against age discrimination, gender discrimination, etc. will be honored. There are no guarantees of the Veteran's Preference Act, no civil service classification to protect tribal government employees, no guarantees of OSHA, no guarantees of the American with Disabilities Act (1990), no guarantees of the right to unionize, no right to Minnesota's teacher tenure laws, no right to the benefit of federal and state "whistleblower" statutes, no guarantees against blatant nepotism, no guarantees of a fair and orderly process concerning access to reservation housing, and no freedom of the press and no freedom of speech. In other words, all the basic human rights we take for granted, that allow us to live in dignity with our neighbors, are not guaranteed on Indian reservations under the present version of "sovereignty."
In Tom v. Sutton, the court stated in part:
This holding is consistent with other judicial decisions finding the Constitution inapplicable to Indian tribes, Indian courts and Indians on the reservation.
533 F.2d 1101, 1102-03 (9th Cir.1976).
It is ironic that every Minnesota Indian who resides one foot off a reservation, is guaranteed the benefits of the Minnesota Constitution and the United States Constitution and its Bill of Rights. It is only on eleven tiny enclaves within this state that this state's residents are deprived of due process of law and deprived of the benefits of the state and federal constitutions.
This opinion is not meant to state that every single one of the eleven reservations practices all of the above enumerated abuses. But this opinion is meant to state that the above enumerated abuses have taken place in at least some places and are taking place today, and any inquiry into a tribal government council as to whether they will fully honor the Minnesota Constitution and the United States Constitution is met with the same rigid response: in effect, we may or we may not, but whatever we do will be totally up to us and our "sovereignty."
Even the federal government, although it prolongs the present inept version of sovereignty, knows better. The federal government recognizes that tribal governments and reservations do not act independently, but under the will of Congress. When the federal government decides to act, it pays no attention to claims of sovereignty. Such is the case with serious felonies, such as those tried to a conclusion in 1996 involving two different northern Minnesota reservations. One of the first defenses of the defendants was that the federal district court (meaning the federal government) could not do anything about the alleged crimes and could not put the defendants in harm's way before a federal jury, because whatever was alleged to have happened, happened on a reservation and, thus, the reservation's sovereign immunity protected the defendants from accountability in federal district court.
The defense was listened to and then immediately swept away. The defendants were put on trial in federal district court in St. Paul, Minnesota. Ironically, all defendants enjoyed in federal district court an absolute guarantee to all rights mandated under the United States Constitution, which rights they would not have been guaranteed if they had been tried in their own tribal courts. To any knowledgeable observer of tribal reservation courts and of how they are controlled by tribal government, any trial in a tribal court involving these defendants would have been a meaningless sham. You see, tribal governments, such as appellant here, claim the power to isolate and immunize themselves even from their own tribal courts. This is something not even a true sovereign dares do. The United States Supreme Court, not the Executive Branch, retained control over the Watergate investigation and the Nixon tapes. Indian tribal government and their advisors claim an immunity Congress does not even give to itself or the Oval Office or the federal judiciary. Nor has the Oval Office or the federal judiciary ever claimed for itself total immunity. No person in this country is totally free of a possible federal indictment for misuse or abuse of the public trust or for misfeasance and nonfeasance. President Ford granted to former President Richard Nixon an unconditional pardon for possible acts committed while in the Oval Office. Ford did not grant Nixon the pardon because Nixon had total sovereign immunity for acts committed while in the Oval Office; Ford granted Nixon the pardon because he did not.
Appellant's Judicial Code in Chapter II entitled "Jurisdiction" in Section 3(a) provides:
Section 3. Suits Against the Tribe.
(a) Sovereign Immunity of Tribe. The sovereign immunity from suit of the Tribe and every elected Lower Sioux Community Council member or tribal official with respect to any action taken in an official capacity or in the exercise of the official powers of any such office, in any court, federal, state or tribal is hereby affirmed; nothing in this Code, with the exception of subsection (d) of this section, shall constitute a valid waiver of the Tribe's sovereign immunity. The Tribal Court shall have no jurisdiction over any suit brought against the Tribe in the absence of an unequivocally expressed waiver of that immunity by the Lower Sioux Community Council.
(Bold emphasis added.)
In Section 3(d), respondent waives its own sovereign immunity and consents to the tribal court hearing the suit, just for the limited purpose of determining "the eligibility of Tribal members for per capita payments made pursuant to a Lower Sioux Community in Minnesota Tribal plan to distribute funds from Tribal Gaming enterprises."
Respondent, Granite Valley, is a group of individuals being threatened with the possible deprivation of their property by tribal judges over whom they have absolutely no input. Why is this startling, even profound? The answer is that it exists nowhere else in this country.
The partners in respondent and all members of the Lower Sioux Community have, as they should, the right of a direct vote on all state district court judges in their judicial district, all intermediate appellate judges in this state, and all members of the Minnesota Supreme Court. All of the partners in respondent and the members of the Lower Sioux Community enjoy a direct voice in the election of state representatives, senate constitutional officers, and the governor. They therefore have a direct vote over those by whom they will be governed, and a direct vote for governor, which is an indirect vote for the state judges that a governor appoints.
In the federal system, both Indians and non-Indians enjoy a direct vote for United States senators and, through the electoral college, an indirect vote for the president. *149 Thus, although federal judges do not submit to direct election, Indians and non-Indians, as American citizens, can vote for those who control the appointment of federal judges, i.e., the President and members of the United States Senate. Conversely, the partners in respondent have absolutely no input into the selection or appointment of tribal judges.
Ironically, the northern Minnesota defendants who stood trial in St. Paul federal district court enjoyed a number of constitutional guarantees that would not have been guaranteed in their own reservation tribal courts. They enjoyed constitutional guarantees to the right to pick the best possible criminal defense attorney they could afford. They were able to afford some of the finest in Minnesota.
If they had pleaded poverty, they would have been assigned one of the many excellent federal court public defenders. They enjoyed a constitutional guarantee to a trial by a jury. They enjoyed a constitutional guarantee to a trial conducted by an independent and neutral federal judge, a federal judge enjoying objective qualifications for that post. They enjoyed a constitutional guarantee to an orderly and thorough appellate court process up to the United States Supreme Court, all before independent, neutral, and qualified judges.
The defendants enjoyed, as they would not have done in tribal courts, a constitutional guarantee to the right of a not guilty verdict by the jury on whatever count or counts the jury found the prosecutor did not prove beyond a reasonable doubt. Of the multiple counts against all defendants, some defendants had more than others. The two different federal juries returned some counts of not guilty. The federal trial judge took no further action on the not guilty counts. The federal prosecutor did not request any. Those not guilty verdicts stand forever.
The two sets of federal criminal cases to which I have referred, and to which it is proper to refer, as they are part of an open public judicial record, are not about anything more, tragically, but greed.
As a former criminal defense attorney for 17 years, both in private practice and as a part-time public defender, and as an appellate judge for 13 years, I have a deep appreciation for the difference between pretrial allegations, in either criminal complaints or indictments, and what is later proven, or found to be unproven, after a full trial. Routinely, pretrial allegations, no matter how strongly stated, result in not guilty verdicts in state and federal courts. On some occasions, pretrial allegations are found not only to not be proven by a reasonable doubt; at times the evidence at trial may show the pretrial allegations to be nearly or totally unfounded.
But after a full and fair jury trial in state or federal court, and after a jury has rendered a verdict of guilty by proof beyond a reasonable doubt, the highest standard in any case in any court in this country, those convictions stand as an open public record that the defendants, after having been given their constitutional right to a fair trial, were found guilty by proof beyond a reasonable doubt.
In the two sets of trials involving Northern Minnesota reservation tribal council members and advisors, the pretrial allegations included multiple counts of:
conspiracy to defraud the United States/misapplication of tribal funds; embezzlement; interstate commerce/money laundering; civil rights conspiracy; mail fraud; conspiracy scheme to defraud the United States; theft/misapplication of tribal funds--aiding and abetting; theft involving program receiving federal funds; scheme to defraud; aiding and abetting.
At the conclusion of the two lengthy trials involving multiple defendants, the verdicts of guilty included:
conspiracy to defraud the United States/misapplication of tribal funds; embezzlement; interstate commerce/money laundering; civil rights conspiracy; mail fraud; conspiracy scheme to defraud the United States; theft/misapplication of tribal funds--aiding and abetting; theft involving program receiving federal funds; scheme to defraud; aiding and abetting.
Thus, two of eleven, or close to 20 percent of all tribal governments in Minnesota, were *150 found to contain systemic and institutionalized corruption, and the evil that corruption brings. The evidence at trial revealed that this systemic and institutionalized mismanagement stemmed from unaccountable casino money. The unaccountability stems directly from the lack of state and federal oversight. That lack of oversight is directly attributable to tribal "sovereignty." The investigation of other Minnesota reservations with gaming casinos continues today.
This mismanagement is a direct result of the "myth of sovereignty" protecting tribal leaders and tribal government from the normal rules of federal and state accountability. It has been noticed by Indian and non-Indian leaders alike.
Robert A. Fairbanks is an enrolled member of the Minnesota Leech Lake Ojibwe Reservation and presently resides in Oklahoma. A small portion of his resume includes the following: Juris Doctor, University of Oklahoma; Master of Laws, Columbia University; Master of Education in Teaching Math and Science, Harvard University; Master of Arts in Medical Science, Stanford University; Master of Business Administration, Oklahoma City University; Master of Criminal Justice Administration, Oklahoma City University; Colonel, United States Air Force, Judge Advocate Corps; former Editor-in-Chief, American Indian Law Review; President and Executive Director of the Native American College Preparatory Center; and author of dozens of articles, notes, and book reviews relative to the history of American Indian people in America.
Fairbanks, after looking back at these sets of trials and after examining the present situation on Indian reservations, recently stated:
The Minnesota Chippewa Tribe in 1997: A new beginning, or the beginning of the end?
1996 was a benchmark year in the history of the Minnesota Chippewa Tribe due to federal felony convictions of longtime political leaders at Leech Lake and White Earth Reservations. * * *
More than just revealing far-reaching and entrenched corruption in tribal government, the convictions and post-conviction events at Leech Lack and White Earth reservations and within the Tribal Executive Committee of the Minnesota Chippewa Tribe expose the fragility of the tribe's claim to sovereignty. The tribal body politic, if some measure of sovereignty is to be preserved, can no longer afford to ignore the wrongdoing of their political leaders.
Political Aftermath
At Leech Lake the convictions did little to rid tribal government of the clutches of unscrupulous tribal officials. * * * To stymie * * * reform efforts, they have held numerous illegal tribal council meetings, passed illicit legislation and wasted untold amounts on attorney fees. The result has been governmental chaos and an expose of the depth of corruption in Leech Lake government.
* * * * * *
Furthermore, the action, or more correctly the lack of reaction, of the Minnesota Chippewa Tribe Tribal Executive Committee to the federal convictions of four of its members * * * suggests tribal corruption extends beyond those convicted. * * *
[T]he nonfeasance of the executive committee reveals a pervasive political ethic of criminality within the leadership of the Minnesota Chippewa Tribe. It is, indeed, remarkable that at their federal sentencing hearing [convicted tribal officials] refused to accept personal responsibility for their wrongdoing. Instead, they chose to blame others for their downfall, including the disingenuous argument that the federal government was at fault. They argued that the federal government was responsible because it created the business committees and, therefore, made it possible for them to lie, cheat and steal. By making this silly argument, they revealed their lack of character and personal criminal ethic.
* * * * * *
Sovereignty Endangered
The Minnesota Ojibwe will soon learn that the American people will not tolerate, *151 and continue to finance, such political bungling. The postconviction political events, coupled with the fact that the Minnesota Ojibwe have lost almost all their land and very few remember the Ojibwe language, argue strongly for the conclusion that the Leech Lake and White Earth Ojibwe, and other similarly situated Minnesota Chippewa Tribe reservations, do not possess the capacity of sovereign political personalities. In fact, they are in grave danger of losing the scintilla of government they have remaining.
* * * * * *
However, before any significant constitutional reform can be achieved, the Minnesota Chippewa Tribe body politic must accept the fact that the tribe lacks any reasonable measure of inherent sovereignty. In fact and law, the tribe is a creation of the federal government under the Indian Reorganization Act of 1934 and can be abolished by the plenary authority of Congress at any time. The federal government, of course, can insidiously decide and quodlibet to the contrary by merely reducing, or eliminating, federal funding of tribal programs. Denying political reality will not foster constructive constitutional reform.
Robert A. Fairbanks, The Minnesota Chippewa Tribe in 1997: A new beginning, or the beginning of the end?, Native American Press, Dec. 27, 1996, at 6 (emphasis added).
I recognize that two out of eleven is a small sampling to draw hard and fast conclusions from. But I will also state, on the other hand, that if in a small, sparsely populated county in Minnesota, approximately 20 percent of the mayors and city councils in cities in that county went through a trial that determined theft, fraud, kickbacks, swindle, corruption, and vote rigging had been in place in those towns for years, it goes without saying that the citizens of those towns, the area legislative representatives, the state attorney general's office, and the state auditor's office would set their teeth and grimly determine to find out how those conditions existed for so long.
You see, the guilty verdicts in those two sets of trials were not about a single act or two of spontaneous theft or embezzlement. The guilty verdicts were not about in-state residents defrauding out-of-state strangers over the telephone. Rather, the evidence and the guilty counts showed a pattern of years and years of corruption, and the evidence forming the basis for the convictions proved beyond a reasonable doubt that defendants were stealing from their own people.
All persons found guilty are and remain human beings, brothers and sisters to the rest of the state. The unaccountability they took advantage of is a direct result of the presently held view of "sovereignty," a view that denies to state officials the right to investigate, protect, and regulate their own citizens living on Minnesota reservations.
All elected officials, state and federal, executive, legislative, and judicial, must shoulder their respective share of the shame stemming from the institutionalized neglect of Indian people. Due process and justice demand an immediate move toward formulating sound public policy to ensure this never happens again.
We have stretched the law, contorted it, and tortured it to promote the view of "sovereignty" that tribal governments or reservation business councils want as "the law." This has taken us to depths that could not be fathomed for any other racial, ethnic, or cultural group in this country.
The case of Cabazon Band of Mission Indians v. County of Riverside, 783 F.2d 900 (9th Cir.1986), which needs to be read thoroughly, not just cited, and then thoroughly understood, is puzzling. Carried to its logical extreme, it could be renamed "The Indian Gaming and Reservation Nonaccountability Act." Briefly, the Cabazon Band resides in California. California for years had various forms of gambling, but under control of its state legislature and its state courts. If the Cabazon court had said that if California Indian people were being prevented by reason of their race from participating in California's regulated forms of gambling, that is constitutionally improper, it would be a wonderful and clear decision and the court could have stopped there. But the Cabazon court went on to expand and give the Cabazon tribe gambling unregulated by the State of California. Id. at 903. Unregulated gambling is a type of gambling the State of California never gives to its own residents.
When Cabazon members gamble off the reservation, state regulations apply. When they gamble on their reservation, state regulations do not. Yet the Cabazon band members are residents of California in both places.
Cherokee Nation v. State of Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), and its progeny, like Cabazon, further increase the isolationism and the red apartheid that is now separating American Indian people from all other cultures and races. That apartheid cannot be justified on the grounds that lack of accountability and "self-determination" and "self-governance" is good for Indian people, and thus, we will close our eyes to constitutional improprieties. The lack of state and federal constitutional guarantees make today's life on reservations intolerable to Indian people who are not on the good side of the reservation business council; they have no practical recourse to state or federal courts when they are on the "bad side." They have learned about their own "tribal courts."
Cherokee Nation needs our attention because it is the seminal case defining Indian tribes as "domestic dependent nations" and describing their relationship to the United States as "that of a ward to his guardian." The majority opinion delivered by Chief Justice John Marshall describes the issue:
This bill is brought by the Cherokee Nation, praying an injunction to restrain the State of Georgia from the execution of certain laws of that State, which as it is alleged, go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force.
30 U.S. (5 Pet.) at 15 (emphasis added).
The Supreme Court sets out the standing of the United States to its Indian people, and discusses how "they look to our government for protection."
Their relation to the United States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father.
Id. at 17.
The Supreme court then points out that if they wanted to hear the petition of the Cherokees, it would certainly be a great idea for the Court to address the listed grievances.
If the courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined.
Id. at 15.
Among the listed bill of particulars by the Cherokees, including a claim that the State of Georgia was unilaterally breaching previously signed treaties, taking the Cherokee's land, and expelling them out of the state, one specific bill of particular is remarkable. It is remarkable because petitioner Cherokee Nation set out, with no dispute, that one of their members had been sentenced to death by hanging by the State of Georgia, and after the Chief Justice of the Supreme Court signed a "writ of error" forbidding the execution, the State of Georgia went ahead and executed Corn Tassel, Georgia stating that "this was no business of the Supreme Court of the United States."
The individual called in that bill Corn Tassel, and mentioned as having been arrested in the Cherokee territory under process issued under the laws of Georgia, has been actually hung, in defiance of a writ of error allowed by the Chief Justice of this court to the final sentence of the court of Georgia in his case. That writ of error having been received by the governor of the State was, as the complainants are informed and believe, immediately communicated by him to the Legislature of the State, then in session; who promptly resolved, in substance, that the Supreme Court of the United States had no jurisdiction over the subject, and advised the immediate execution of the prisoner under the sentence of the State court, which accordingly took place.
Id. at 12-13.
This listed "grievance" is remarkable because I cannot find at any time in any of our 50 states that a state execution has ever taken place in direct defiance of the United States Supreme Court. It is also remarkable that from the opinion it is apparent the Supreme Court acted no further against the State of Georgia, rather than to note what happened.
The majority opinion further discusses in detail how Indian tribes are not the equivalent of a foreign Sovereign Nation.
[Y]et it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations.
Id. at 17.
Then the majority concludes with the holding of the case, which is, that if wrongs had been afflicted, and if even greater wrongs for Indian people are on the horizon, the Supreme Court is not able to lend a hand at this time.
If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.
The motion for an injunction is denied.
Id. at 20.
Cherokee Nation is a real case and it sets out two important truths. The first truth is that on the narrow legal issue of whether federally-recognized tribes are the equivalent of a true Sovereign Nation like Canada or Mexico, it is clear that they are not. All of Cherokee Nation 's progeny, from the date of its release to 1997, continue to reiterate that Indian tribes are under the will and defeasance of Congress and that Congress has total "plenary power" over tribes.
The second truth to be taken from Cherokee Nation is that from that day to today, the federal government has engaged in a failed Indian policy; partial failure at times and total failure at others, but always a failure, because both before and after 1924 when the American Indian was finally accepted as an American citizen, the American Indian has never been extended all the rights, privileges, and obligations of statehood and American citizenship. Right today, the rights, privileges, and obligations of the Constitution of the State of Minnesota and the U.S. Constitution are not guaranteed to Indian people domiciled within the boundaries of Minnesota's Indian reservations.
In attempting to reconcile the different descriptions of Indian tribes in the many federal cases that, like Cabazon, at times carelessly use the terms "sovereignty," "semi-sovereignty," "domestic dependent nation," and "ward of the government" interchangeably, hard-working trial judges and appellate judges throughout this state are now caught in a cross-fire, with everyone struggling to do the right thing.
Clear example. Cases are starting to flood our courts over which driving laws and safety statutes of the State of Minnesota can be enforced on Indian reservations. That has broken down into near illogical subgroupings, such as: severity of transgression; those living on reservations; those driving onto reservations from the outside; those driving from reservations on to public roads, etc. These contorted subgroupings are sucking us into the black swamp of internal inconsistency.
I am describing the "criminal/prohibitory" dichotomy versus the "civil/regulatory" analysis laid out in State v. Jackson, 558 N.W.2d 752 (Minn.App.1997); State v. Stone, 557 N.W.2d 588 (Minn.App.1996); Bray v. Commissioner of Pub. Safety, 555 N.W.2d 757, 760 (Minn.App.1996). All three panels have struggled to do the right thing, some finding that certain illegal driving conduct is civil/regulatory and some finding that certain illegal driving conduct is criminal/prohibitory.
With no other race, creed, or culture would we spend a minute struggling to find distinctions that do not exist on an issue so serious as the right of state residents, Indian and non-Indian alike, to expect that all other drivers they meet are bound by our state's motor vehicle safety laws.
Here is the simple honest answer: The State of Minnesota does not regulate drunken driving, it prohibits it. The State of Minnesota does not regulate speeding, reckless driving, or careless driving, it prohibits them. The State of Minnesota does not regulate driving without insurance or driving without up-to-date registration and current license plates, it prohibits them. The State of Minnesota does not regulate driving without a license, it prohibits it. The State of Minnesota does not regulate failure to have a child restraint, it prohibits it.
The State of Minnesota regulates legal conduct. It prohibits illegal conduct. Clear example. A highway with a posted speed limit of 55 miles per hour. The state regulates driving conduct up to 55 miles per hour. That is legal conduct. Over 55 miles per hour you are not regulated, you are prohibited. If on that road the county or the state is doing some work and establishes a construction zone with a sign that says "temporary speed limit 40 miles per hour," legal driving conduct up to 40 miles per hour is regulated. Driving conduct over 40 miles per hour is no longer regulated, it is prohibited. The state regulates driving with the minimum amount of liability insurance, 30/60. If you have that or more, you are legal and you are regulated. If you have less than 30/60 limits, or none at all, that driving conduct is not regulated, it is prohibited.
Everyone in the judiciary tries its best to be ethical and fair. The inconsistent swamp we are in is a direct result of incongruous spinoffs of "tribal sovereignty" and "tribal immunity."
The cases coming before the court on the issue of sovereignty are coming from Minnesota's eleven Indian reservations. Appellant has placed sovereignty in issue. I have accepted appellant's request to address sovereignty. Appellant's attorney has every ethical right to promote his client's interests and to put at issue whatever he feels he must do to protect his client's interests. I have an obligation to give the attorney and his client my answer and my legal analysis.
It is helpful to start with the status of Minnesota's eleven recognized reservations, seven Anishinabe/Ojibwe, and four Dakota Sioux. Although they range in size from under 100 acres in southern Minnesota to thousands of acres in northern Minnesota, they contain as residents an extremely small percentage of our population. The most recent figures available show approximately 12,000 Indian people spread out in those eleven different reservations. The four Dakota Sioux are small in size and small in number. Their combined residency is about 1500. The other approximate 10,500 Minnesota Indians living on reservations are spread out among the seven northern Minnesota Ojibwe reservations. Actual populations on reservations range from under 200 to perhaps 3,000. There are a total of approximately 60,000 identified American Indians in the State of Minnesota. The other approximate 48,000 do not domicile on a reservation but reside in all other parts of the state where the Minnesota Constitution and the United States Constitution, with its Bill of Rights, control their rights and privileges and their obligations. If they go back to the reservation, they are stripped of those guarantees. If they leave the reservation again, those guarantees come back to protect them.
The eleven reservations have a total of 17 exclusive gaming franchises, including 16 Las Vegas style casinos, some large, some small, and one bingo franchise. Because there is no open meeting law, because there is no freedom of the press, because there is no forum to change that, Indian casino interests keep the total gambling revenues on Indian reservations hidden as much as possible from tribal enrollees and from the public eye.
Although the actual figures are kept hidden by the reservation business council and their casino managers, we know from various sources, shop talk, publications, and comparisons to known figures from regular casinos of similar size, that the money pouring into the 17 Minnesota Indian gaming franchises is substantial.
It can be said that their combined "handle" is between 2.5 and 3 billion dollars annually. "Handle" or "drop" is the total amount wagered. Then we know that the range of cash *155 back or payout to customers is within the range of 80 percent to 90 percent of that amount. Thus, the amount of cash retained by the casinos called gross profit would be approximately 250 million to 300 million at 10 percent in retainage, and 500 million to 600 million at 20 percent retainage. That figure represents gross profit, a rather loose term, but a sufficient one for these computations. Then from gross profit must be subtracted the costs of doing business to arrive at the net profit. Well-managed gaming casinos historically enjoy an excellent ratio of net profit to gross profit. That, simply and with no further explanation, explains the billions and billions of dollars poured into Las Vegas style casinos in Nevada, in New Jersey, and now in Indian casinos dotting this country since the 1940s. The net profit margin can be as much as 50 percent. Thus, simple arithmetic from the above range of gross profits shows a possible combined net to the 17 franchises of some 100 to 200 million dollars on up through 250 to 300 million per year. That is a lot of money.
South Minneapolis, between Franklin and Lake Street, has one of the largest urban Indian populations in this country. They belong primarily to Minnesota's Dakota and Ojibwe reservations. They know nothing of these figures. Some may receive a small pittance; most receive nothing. Their life is a struggle for survival. They do not know of, much less discuss, Cherokee Nation, 30 U.S. (5 Pet.) 1, Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), Cabazon, 783 F.2d 900, Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn.1996), etc. They are mostly concerned with getting through the day, getting enough to eat, and having a warm place to sleep. They assume that social justice for Indian people, like all important matters, is somehow handled by men and women in tailored suits going quietly to and fro in the executive, legislative, and judicial branches, talking about important things with each other in marbled halls and paneled chambers.
There are people out there on reservation business councils, and their advisors, intimately connected to the management of that tribe's casinos, who know far more than I the truth and accuracy of my approximations. Anyone wishing to come forward in a public forum and on a public record and correct me as to whether I am high or conservative would provide a relief to me and to Indian people. Then all would know the exact figures. All city residents with a well-managed and state-regulated municipal business entity know exactly how much belongs to them. This is simple and can be done. It occurs, dozens of times, hundreds of times per year in this state, as all cities, villages, unincorporated townships, etc. maintain carefully calculated and open financial records for the residents and all appropriate state agencies that are entitled to examine those records. It is done by employing, as a normal cost of doing business, an outside and fully objective and independent major accounting firm to do a complete and thorough certified financial statement.
In Minnesota, like in other states, whether you are a for-profit corporation, a nonprofit corporation, or a municipal corporation running a business entity, you are subject to applicable state and federal laws and regulations. That ensures accountability of the owners, investors, managers, officials, and residents of the towns involved. The one exception in Minnesota is tribal government. Yet in Minnesota, all members of a tribe, whether living on or off the reservation, are full-blown Minnesota residents and American citizens.
For now, fair and full public disclosure of casino and other tribal government proceeds is denied to all Minnesota Indians, whether they are off-reservation enrollees or reside right on the reservation 100 yards away from the casino that they are told "belongs to them."
If in Minnesota, eleven small towns totalling approximately 12,000 residents had within them 17 different gaming casinos, all would be well in those towns. With state regulation and the laws controlling a municipality's accounting for its revenues, I suggest city planners from towns in Minnesota and other states would make yearly pilgrimages to those casino towns to get city planning and lifestyle ideas. Instead, we have a situation on our eleven reservations where there is still poverty, illiteracy, inadequate medical care, crime, violence, alcohol abuse, drug abuse, domestic abuse, sexual and physical assaults, lawlessness, incest, and all the other societal ills that plague small towns and large cities.
On Minnesota reservations, even those with the potential for vast revenues, there is a "poverty of the spirit" that no amount of money can salve. See Mark Aamot, Greed vs. Culture?, The Circle, Feb. 1996, at 5. The article refers to the reservation the smallest in size, but the richest in revenues, the Shakopee Dakota Community with its Mystic Lake Casino. The article details how on a reservation with the most lucrative casino, culture and togetherness get drowned in the fight for control over the money.
My concurrence is decidedly not anti-casino gambling and for those who have read my dissent in Cohen, 543 N.W.2d at 382-408, they will know this is true. What I am pointing out is the tragic mismanagement of what should be a legitimate bonanza for Minnesota Indians, previously impoverished for decades. This tragic mismanagement flows directly from the failed governmental Indian policy of "sovereignty." The simple but institutionalized change which is necessary, and must be done quickly, is for the federal congress, federal judiciary, state legislatures, and state courts in some fashion to confer full rights of statehood on residents of Indian reservations. When the casinos are located within a Minnesota municipality with all the attendant rules and regulations and open government laws required by that designation, the people will be guaranteed the right to know what those proceeds are. The way it is today, they do not, and are deliberately kept in the dark by the reservation business councils and casino managers.
There are many examples in Minnesota of the proper handling of money by municipalities. For decades, municipalities have owned municipal liquor stores, waste and sewer treatment plants, public utilities, garbage disposal companies, and other businesses. There is nothing wrong with a Minnesota municipality making money at a municipally-owned enterprise. Properly accounted-for dollars help the quality of life by supporting needed services without adding to the tax load.
Even though there are significant gaming revenues, Minnesota and federal taxpayers still are asked to supply to Minnesota reservations with such things as HUD housing, Bureau of Indian Affairs-financed reservation schools, Indian Health Service, AFDC benefits to those who qualify, and other benefits. Each of the above-enumerated uses of taxpayer funds for appropriations for people living on reservations is ethical and appropriate. The people living on reservations share exactly the same class as myself, all readers of this opinion and all residents of this state. The class is Minnesota residents and United States citizens. It has always been permissible to target groups within this state that need legitimate financial aid and then give it to them.
But the gambling money must be accounted for. That is so in Minnesota towns and villages; that is so on federal enclaves, of which Indian reservations are a type. For instance, on military reservations, the profits, whether lucrative or modest, from commissaries, post exchange stores, etc. are subject to rules, regulations, and accounting. The budget of Congress and the Oval Office is a public record.
The majority of Indian casinos in Minnesota and in this country have failed to comply with the federal gaming act which is supposed to regulate them.
This week the National Indian Gaming Commission (NIGC) released a copy of the Report to the Secretary of the Interior on Compliance With the Indian Gaming Regulatory Act (IGRA) by the nation's tribal casinos. The Report, which was dated September 30, 1996, found that only 32 of the country's 274 tribal gaming operations complied with all eight requirements of the IGRA.
As far as Minnesota is concerned, the Report found that only six of the state's 16 tribal casinos were in full compliance with the Act
William J. Lawrence, Most Casinos in state, U.S. failed to comply with federal gaming act, Native American Press, Dec. 20, 1996, at 4.
Appellant here, Jackpot Junction, is included on the lengthy list of tribal gaming operations not in compliance. This article stated:
The Report cited the 11 other tribal casinos for the following violations:
Jackpot Junction Casino, owned and operated by the Lower Sioux Indian Community, for failure to be licensed by the tribe and for failure to submit audits to NIGC * * *.
Id.
Thirty-two out of 274 is not even enough Indian gaming casinos in compliance in this country to construct an accurate model of how it should be done right!
The following truth must be noted. The hundreds of millions of dollars per year generated by the casinos are not even split fairly among the approximate 60,000 Indian people in this state. Only a tiny few of the 48,000 off-reservation enrollees ever share in any per capita distribution by the reservation business council of net gambling proceeds. Those tiny few off-reservation enrollees who share only got their share after finding themselves pitted against their own tribal leaders who resisted such sharing, and after bitter struggles in federal court. Other than those tiny few, the approximate 48,000 off-reservation but bona fide enrollees get nothing from the proceeds of their tribes' casino income.
What happened to the gross and net revenues from those 17 gambling franchises that I described above? The answer lies in the two previously-described sets of trials from northern Minnesota reservations with casinos. Those casinos were "managed" under the presently held view of "sovereignty." Thus, the total unaccountability and the resulting criminal convictions happened. The results of those criminal trials will forever stand as a public record in mute testimony to the utter failure of present American Indian policy.
Those trials had tragic results for all state residents, Indian and non-Indian alike. There is no triumph, only sadness, in my description of what happened. But federal trials are a matter of public record, open to all, and judicial opinions rightfully can refer to public documents when appropriate.
It is only the "intelligentsia" that Einstein referred to that neither understand nor accept the truth in Indian country. As I previously stated, tribal government leaders, their advisors, and the casino managers know far better than I or anyone else the true figures as to the flow of money. Tribal governments know that the "winds of change are coming." The two sets of previously-described public trials, together with the intensive investigation preceding them, have put tribal governments on notice that the end of total unaccountability to their own people is coming.
There are four distinct sets of outrage. The first outrage belongs to Indian people living on reservations. They have no state or federal constitutional guarantees, no open records as to casino money, no state regulated open and honest elections, no Minnesota state auditor, no secretary of state, and no state attorney general to look over the shoulder of government leaders as is done in all other Minnesota towns.
The second outrage belongs to Indian people enrolled in a tribe but living off of the reservation. They are often ineligible to run for tribal government office, they have no guarantee that their absentee ballots are counted correctly, they have to fight for a piece of the per capita distribution or get none at all, and they have no input in how the tribal government spends money on their reservation.
The third outrage belongs to state residents, Indian or non-Indian, who cannot walk onto a reservation and feel safe on any part of the reservation, including, but not limited to, the gaming casino because city, county, and state law enforcement authorities are hamstrung most of the time, and forbidden some of the time, from even attempting to enforce state laws that promote the safety and welfare of people on reservations. State residents, Indian or non-Indian, cannot even sue a tribal casino for serious injuries that the plaintiffs claim were caused by the casino's neglect.
The fourth outrage belongs to Minnesota and American taxpayers who are expected to fork out millions of tax dollars a year for various support services for people living on Indian reservations and then are denied the normal accounting we get from state government and the federal government as to annual budgets.
To further add to the misery of Indian people, rightfully entitled to a fair accounting of gross and net profits from their casinos, but not getting it, is the growing probability that when Minnesotans and others who gamble fully realize the total lack of protection they have once they step inside a casino, the number of those coming to gamble will decline. Then the casinos will begin to sink financially and may eventually close. The specter of competition is here.
Clear example. Assume that the State of Minnesota authorized a Minnesota municipality or a private group of investors to build a large and comfortable Las Vegas style casino somewhere in central Minnesota or in the Twin City metropolitan area. It is a matter of public record that for the last few years various state legislators have discussed openly whether there should be state-based or privately-owned gaming in direct competition with reservation casinos. No one can discount this possibility.
Now assume that after state and region-wide publicity, this new Minnesota casino opened, and as eager and curious patrons came through the front door on opening day, they were met by a huge, neatly lettered, painted sign above the door with individual paper copies for all who entered. Assume the sign above the door said the following:
ACCOUNTABLE CASINO
Welcome to Minnesota's first and only accountable casino. The management hereby makes the following pledge to all customers, all employees, and all individuals and business entities that do business with us:
We understand that we are subject to the United States Constitution, its Bill of Rights, the Minnesota Constitution, and all lawfully passed Minnesota, state and local, legislation or ordinances that affect our right to do business. We agree to be bound by state and federal laws, including without limitation, civil rights acts, laws protecting veteran's preference, OSHA, social security withholdings, workers' compensation, laws against age, race, color, and gender discrimination, zoning ordinances, labor rights to attempt unionization, and all other such matters.
We reserve the right to vigorously defend on the merits any charge against us or our employees wherein it is claimed we are civilly or criminally liable. But we understand fully and accept that we are under the lawful jurisdiction of all law enforcement agencies. That includes, without limitation, city police, county sheriffs, the resident county attorney, the attorney general of the State of Minnesota, and all other agencies and sub-agencies of the State of Minnesota that regulate business enterprises, including those of this type.
We fully understand and agree to unqualifiedly submit to the jurisdiction of Minnesota state district courts and its appellate process, and Minnesota federal district courts and their appellate process when state or federal issues arise. We reserve the right to any and all legitimate defenses, including without limitation the normal qualified immunity involving discretionary decisions of duly elected council members. We reserve the right to attempt to move causes of action wherein we are sued from state court to federal court or from federal court to state court if our attorneys advise us that we should do that to protect our interests. But we agree that we are required to defend on the merits in either a state and federal court.
We pledge not to take money from this casino and set up a system wherein we set the qualifications for and control the selection of "judges" paid by us to entertain lawsuits by others against us.
Our defenses to lawsuits will include, without limitation, defenses on the merits on such matters as statutes of limitation, collateral estoppel, laches, etc.
It is our intention to make a fair profit from this casino for our shareholders if we are privately owned, and for residents of this municipality if we are a municipal corporation. But we will not do so at the expense of your dignity and rights. We will not cheapen our own by so doing. If we are a privately-owned casino, our books will be open to the appropriate taxing authorities, state and federal, and all income taxes, excise taxes, sales taxes, etc. collected will be paid to the appropriate authorities. If we are a municipally-owned business, we understand that we are subject to open meeting laws, freedom of the press, display of all of our public records to our residents at appropriate times, and all other laws regulating municipally-owned businesses.
We accept the authority of the State of Minnesota, through its State Auditor, to examine our books as required.
We accept the authority of the State of Minnesota, through its Secretary of State, to monitor and regulate our municipal elections so that all qualified voters have their votes counted fairly.
If there are any allegations against us, civil or criminal, we reserve the right to hire attorneys to defend us. But we understand there will be an independent judicial forum for the respective claims and defenses to be heard.
If the above were the case, it would not be long before the seventeen Indian gaming franchises would suffer financial distress, and then close, one by one.
There is nothing "anti-casino" in what I say. I am "anti-anything" that runs to the detriment of the people it is supposed to serve. If there are to be Indian gaming casinos or other tribal business enterprises, I am for healthy, regulated, accountable casinos and other businesses run by properly elected public officials, under Minnesota state laws regulating municipalities. Nothing bad can happen from the change that I suggest must come, meaning the change from "federal tribal enclaves" to Minnesota municipal towns, villages, or cities, whatever form is chosen. The present existing gaming casinos have "grandfather" rights. It is just that the gaming casinos need to be operated like all other municipally-owned business entities, open, accountable, and subject to Minnesota's laws on open meetings and open public records.
The foundation of the myth of sovereignty and its concomitant evils is that the federal government has never entrusted American Indian people with the ownership of reservation land. This is unlike any other race, color, or ethnicity. It is time. Reservation residents must be given the right of ownership in fee simple. Since 99 percent plus of Americans have this right, the tiny percentage of Americans living on reservation land are being discriminated against to the full extent of the law. There is somewhere between perhaps 600,000 to 900,000 Indian people in this country actually living on the 554 scattered federally-recognized reservations. All Indian people living off the reservation can own land in fee absolute. A tribal government can do little or nothing without the approval of a federal agency, some arm of the federal government. Indian people, generally, living on a reservation cannot. This prohibition applies whether it is called reservation land, trust land, or allotted land. It may be "deemed to be the tribe's," but it lacks the pure ownership indicia of fee simple absolute.
This will take federal congressional action and the guidance of the federal judiciary, but I am setting out the reasons why it has to be considered, and considered quickly.
All municipal governments in this state and country own land, as do their residents, in fee simple. Many municipalities have valuable land, including but not limited to lake front property, riverfront property, commercial land suitable for private investors to buy and develop, etc.
The Cherokee Nation nineteenth century, antiquated, questionable, and patronizing "government/ward status" continues to keep Indian people on reservations in a tribal state of dependency on either state and federal handouts or expansion of the increasingly unaccountable gambling. See Cherokee Nation, 30 U.S. (5 Pet.) at 17 (noting that tribes' "relation to the United States resembles that of a ward to its guardian").
Give them their land! Without ownership, there is no chance of attracting home owners and businesses.
If Indian reservations are reorganized as standard Minnesota cities and towns, the flight of Indian people off their reservations to the "free part" of the state will be halted, and hopefully reversed. Today, 75 percent to 80 percent of all enrollees in Minnesota have turned their back on reservation life because of tribal politics, unaccountability, institutionalized nepotism, and fear. On the other hand, as a normally regulated town under Minnesota laws and Minnesota courts, professional and white collar people of Indian descent might consider moving back to the reservation. Now, because of the inability to buy or build a home, because of the questionable quality of reservation schools, because of the total lack of job security (even for those hired by tribal government as advisors), because of the lack of a stable state-regulated police force, even those pretending to adhere to the security blanket of "sovereignty," choose not to live as permanent residents on the reservation. If you ask them point blank, "Why not?" their moment of awkward silence will be the truth.
When you examine the status of Indian people today, it is clear that even after the 1924 passage of what can be called the American Indian Citizenship Act, see Act of June 2, 1924, 43 Stat. 253, now codified at 8 U.S.C. s 1401(b) (1994), acceptance of American Indian people as individuals, endowed with every right to individually demand the benefits of a state constitution and the federal constitution, has never been granted by the United States Congress or mandated by the United States Supreme Court.
Under the pretense of "sovereignty," we deny Indians living on reservations the most basic rights given all other Americans, the right to own land and the rights, privileges, and obligations of state constitutions and the federal constitution. Instead, the federal government holds reservation land "in trust" on behalf of the Indians. Oklahoma Tax Comm'n v. Texas, 336 U.S. 342, 355, 69 S.Ct. 561, 568-69, 93 L.Ed. 721 (1949) (stating that the "allotted Indian lands held in trust by the United States [are] 'an instrumentality employed by the United States for the benefit and control of this dependent race.' ") (citation omitted, emphasis added.)
Many Indian reservations in this country are small. Some consist of a few hundred acres or less. Some consist of a few thousand acres. A few reservations, particularly in the western states, comprise a few hundred thousand acres or more. The Navajo reservation, occupying parts of two states, New Mexico and Arizona, and the Crow reservation in Montana would be two examples of our larger reservations. We need not be afraid to give these tribes and their people land ownership of hundreds of thousands of acres in fee absolute. If the reservation boundaries contain that much land now, all that means is that before various federal agencies, and the U.S. War Department, acting under the control of Congress, stole Indian land and then set the reservation boundaries, the Indian people thereon owned millions of acres! When we established reservation boundaries and forced Indian people within those boundaries, we always downsized their former holdings, we never "upgraded."
The present reservation system preserves isolationism and red apartheid. From 1619, when the first slaver hit America's eastern shores, until 1863, when Lincoln proclaimed the Emancipation Proclamation, we had slavery, pure and simple. But after emancipation and quick passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, no thought was given to appropriating lands from the defeated South and handing them over to American blacks and telling them to set up their own "plantations/reservations," where as long as they stayed within the borders they could pretty much do what they wanted, pretty much elect who they wanted to, and those elected could pretty much do what they wanted to anybody within the boundaries.
We did not force now full-fledged American black citizens onto "plantations/reservations." But both before and after 1924 and passage of the American Indian Citizenship Act, we forced Native people to live on reservation/plantations to enjoy the benefit of "sovereignty." We say to no other race, color, or culture, "you are free to leave the reservation and step into the free part of the state where the state constitution is in force, but the second you step back across the line, state and federal constitutional guarantees, and the right to own your own land, disappear."
America's history is replete with both subliminal and overt nonacceptance of Indian people. See "Indian Wars of the Nineteenth Century." By my use of the word "nonacceptance," those living who were involved in a direct or peripheral way with the legal analysis leading to Brown v. Board of Education, (and anyone studying the history of that case) will recall that the nonacceptance of colored children in all white schools was testified to at length in various public records as being so dysfunctional, so destructive of normal hoped-for emotional adolescent growth patterns, that by starting with the emotional and psychological sickness suffered by colored children, the grown-ups finally said, "there ought to be a law against it." 347 U.S. at 483, 74 S.Ct. at 686.
They should have paid attention to the little children far earlier. These same patterns of arrested development and psychological disability from nonacceptance plagues not just the young, but all Indian people domiciled on reservations.
As we pushed westward in the 1900s and took over Indian land and called it federal territories, then accepted those territories as states, after referendums, all persons in that former territory had a right to be a resident of that state, all except the Indian people who, during the westward push, had been physically herded onto reservations. As residents of any county in Minnesota, off-reservation enrollees have far more "self-determination" and "self-governance" than anyone living on an Indian reservation. Indian reservations are subject to the "will and defeasance of Congress." They are subject to the "plenary power" of Congress. Off-reservation enrollees and other Americans are not so subject. The Tenth Amendment to the United States Constitution states:
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.
U.S. Const. amend. X.
Today, Indian reservations are nothing more than thinly disguised federal enclave "plantation/reservations." Freedom as a state resident and as an American protected by the Tenth Amendment lies off the reservation, not on it.
Off-reservation tribal enrollees can buy and sell a home, buy and sell a business, own land, mortgage it, vote for city, county, and state officials, knowing that the secretary of state monitors those elections. They can demand to review public records at appropriate times. If they feel aggrieved on any cause, the nearest Minnesota district court with venue and jurisdiction will entertain their claim. They must prove it, but they will have a forum to entertain their claim.
When the State of Minnesota had virtual sovereign immunity, the Minnesota Supreme Court, at least at that time, had the good sense of social justice to insist that the legislature waive it for legitimate claims of their citizens. In Spanel v. Mounds View Sch. Dist. No. 621, the court stated that it was unanimous in expressing its intention to overrule the doctrine of sovereign tort immunity as a defense with respect to tort claims against school districts, municipal corporations, and other subdivisions of government on whom immunity has been conferred by judicial decision arising after the next Minnesota Legislature adjourns, subject to any statutes which now or hereafter limit or regulate the prosecution of such claims. However, we do not suggest that discretionary as distinguished from ministerial activities, or judicial, quasi-judicial, legislative, or quasi-legislative functions may not continue to have the benefit of the rule. Nor is it our purpose to abolish sovereign immunity as to the state itself.
264 Minn. 279, 292-93, 118 N.W.2d 795, 803 (1962).
The Spanel court characterized the doctrine of sovereign immunity as "archaic" and stated that it would overrule it as a defense with regard to tort claims brought against *162 school districts, municipal corporations, and other subdivisions of government on whom immunity was conferred by judicial decision, arising after the 1963 Minnesota Legislature adjourned, subject to any statute presently, or subsequently limiting or regulating prosecution of such claims. Id.
If the doctrine of sovereign tort immunity is archaic as to a state of 4.6 million residents, it is even more archaic to eleven tiny scattered enclaves with a total of approximately 12,000 state citizens living on them. The changeover, from unregulated reservations to Minnesota towns and municipalities, will cause no damage whatsoever to the right of tribal government to continue to make the decision necessary to serve their residents. All Minnesota municipal entities, from the state itself on down to city councils, towns, school districts, etc., share a limited immunity for purposes of those discretionary decisions needed to make and implement sound public policy. See Minn.Stat. s 446.03, subd. 6 (1996) (excepting municipalities from tort liability against "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused"); see also Waste Recovery Co-op. v. County of Hennepin, 504 N.W.2d 220, 230 (Minn.App.1993) (noting that "discretionary function immunity protects a governmental act that 'involves a balancing of policy objectives' ") (citation omitted).
When they become municipalities, Indian reservations, like all Minnesota towns, will enjoy the same rights, privileges and obligations as do every other governmental entity in this state. But for now they stand out as a glaring exception to the maxim that no person or entity "is above the law."
Gavle, 555 N.W.2d 284, is the law and we have to deal with that. Between 1834 and the Emancipation Proclamation, which went into effect on January 1, 1863, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1856), was the law and we had to deal with that. Between January 1, 1863, and Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, in the fall of 1954, black apartheid was the law and we had to deal with that. Thus, it is permissible to explain existing law to explore its ramifications and see whether appropriate changes should be considered.
The complaint in Gavle is a public record and thus can be reviewed by all. The complaint is a 25-page document carefully detailing allegations including, but not limited to, physical abuse, sexual abuse, coercion, terroristic threats, job loss, impregnation, and other alleged abuses. The complaint contains carefully-detailed allegations that several of the claimed torts took place on Mystic Lake Casino property with the knowledge and consent, and at times the aiding and abetting, of casino employees. If you substitute for the named defendant and the tribal corporation in Gavle, the governor, attorney general, any constitutional officer, any sitting judge, any state senator, or any member of the house of representatives, and the state agency that employs them, the plaintiff would have a forum to attempt to keep both the defendant and the governmental entity in as a co-defendant. The plaintiff would have an acknowledged uphill battle. There is far more red tape in suing a governmental entity than in suing an individual. This red tape has a legitimate purpose. Governmental entities in Minnesota (and elsewhere) are clothed with a carefully crafted limited or qualified semi-sovereign immunity from certain types of acts. See Minn.Stat. s 446.03, subd 6 (1996) (listing specific instances where a municipality may be shielded from tort liability). Discretionary/ministerial, official immunity, discretionary immunity, common law immunity are known examples of how a governmental entity can be shielded from a lawsuit either started against itself alone or when the entity is named as a co-defendant. But in recognition of the need for social justice for its citizens, carefully crafted exceptions are built into the law to allow a plaintiff a due process opportunity to crack the veil of sovereignty. Spanel sets out the sound reasoning and logic. 264 Minn. at 292-93, 118 N.W.2d at 803. The point is, no plaintiff in this state is denied a forum to at least argue that they should have a chance to prove they qualify for one of the recognized exceptions. The Gavles of the world are denied an independent forum when the defendant *163 is an Indian reservation's tribal government or their "business arm," a gaming casino.
Between the 1834 release of Dred Scott and the 1863 Emancipation Proclamation (followed quickly by the Thirteenth, Fourteenth and Fifteenth Amendments, to complete the concept that no one can be enslaved), slavery as an acceptable American institution, with its attendant evils too numerous to mention, was unexplainable if the goal of the judicial system is justice. In that time frame, slavery was legal; but it remained unexplainable.
Between 1896 and 1954, state-sanctioned black apartheid (the Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting), separate but equal doctrine), with its attendant evils too numerous to mention, was unexplainable if the goal of the judicial system is justice. In that time frame, black apartheid for states that so chose to practice it was legal; but it remained unexplainable.
Today, the result in Gavle is unexplainable if the goal of the judicial system is justice. It is legal, based on "sovereignty," with its attendant evils of lack of state and federal constitutional guarantees; its attendant evil of unaccountability; but it remains unexplainable.
If the goal of the judicial system is not justice, then the judicial system becomes unexplainable.
I recognize that justice is guaranteed to no one; but can we consciously, as human beings, deny other human beings the first step, a legal forum, to attempt to invoke justice?
Normally, Minnesota does not leave plaintiffs suing a governmental entity "hanging out to dry" from the outset of a case by stating, "we do not care what your claim of proof may be. You are not entitled to a forum to voice it against us. Go pursue the individual. It is none of our concern."
The City of Minneapolis for the last few years has been hit with a series of lawsuits alleging excessive force by their police officers. The City vigorously defends on the merits. They use every available defense, including their limited sovereign immunity, but they never start the lawsuit by stating, "this is between the plaintiff and the police officer. Whatever the two of you end up doing is your own business."
Minneapolis stands behind the officer with its financial assets. If the plaintiff obtains a judgment against the officer and/or the City of Minneapolis, the City of Minneapolis and its taxpayers honor their commitment. They pay their just debt.
The case before us is about a semi-sovereign tribal government that does not even wish to appear in a state court to present a defense.
I use the term "semi-sovereign" to describe Indian reservations and their tribal government, the reservation business councils. Thus, I need to take some time now and attack a myth, a myth that, like a sighting of "Elvis," you can squelch and bury, but that is resurrected when somehow, somewhere, another individual claims that he has seen "Elvis."
The "Elvis sighting" is a stubborn belief of some individuals, some of the "intelligentsia," that each Minnesota Indian reservation is like a true Sovereign Nation, "a nation within a nation." The backup argument is that members of a reservation enjoy "dual citizenship," dual as in citizens of the United States of America, and citizens of some equivalent foreign independent nation, an Indian tribe.
I can only point out again that none of the normal attributes of a true sovereign nation or a true independent foreign country has ever been attributed to our federally-recognized Indian tribes.
Real sovereignty includes, without limitation, the right to seal one's borders, declare war, make peace, coin one's own currency, design and distribute one's own postage stamps, nationalize essential industries such as radio. telephone, communications, steel, oil nationalize industries belonging to foreigners, control immigration, set quotas, forbid emigration, apply for a seat in the United Nations, etc.
Cohen v. Little Six, Inc., 543 N.W.2d 376, 386 (Minn.App.1996) (Randall, J., dissenting), aff'd (Minn. Jan. 21, 1997).
Gavle contained the most recent pronouncement of the Minnesota Supreme Court on this issue of whether tribes are true sovereign nations. Gavle laid that myth to rest. In pertinent part, Gavle stated, "Because we have jurisdiction to hear Gavle's claim, and we choose to exercise it, we now address the issue of sovereign immunity." Id. at 292.