Native American Press / Ojibwe News (Bemidji, Minnesota), 2001-08-03

              INDEX
News Around Indian Country 2
Commentary/Editorials/Voices 4
Smoke Signals of Upcoming Events 5
Classifieds 6-7
In need of help, Fond
du Lac RBC
increases award to
$100Kforhelpin
solving a murder
pg5
MCT land settlement
distribution stalled by
intra-tribal dispute
pg4
Press/ON responds to
DPS request to classify
tribal gambling audits as
"private data"
pg4
GOP appointment of
Rep. Erickson to
Indian council
draws fire
pg3
Commentary
Indian Council
appointment of Rep.
Erickson "right-on"
pg4
Press/ON responds to DPS request to classify
tribal gambling audits as 'private data'
Voice     of     t he     Peop
l  E
Editors note: This is a reprint ofa
letter sent to David F. Fisher, Commissioner, Department of Administration dated August 3. 2001.
Re: Department of Public Safety's
Temporary Classification Request
that audits oftribal gambling enterprises be classified as private data
Dear Commissioner Fisher:
Pursuant to the Commissioner of
Administration's Advisory Opinion
01-51 that the Red Lake gambling
audits held by the State were "public" and the Minnesota Government Data Practices Act, on June
19,2001 tlie Native American
Press/Ojibwe News made a written
request to the Minnesota Department of Public Safety (DPS) for
copies ofall tribal gambling enterprise audited financial statements
submitted to the State of Minnesota pursuant to §6.11 ofthe
Tribal-State compacts.
Due to apparent pressure from
Indian tribal governments, the DPS
responded with a June 27,2001
Temporary Classification Request
that audits of tribal gambling enterprises be classified as private data,
signed by Commissioner Charlie
Weaver, subject to the Data Practices Act §13.06.
Tlie Data Practices Act § 13.01
Subd. 3, "establishes a presumption tliat government data are public," and §13.06 Subd. 3, provides
tliat an applicant for temporary
classification "shall have the burden of clearly establishing" that
compelling grounds exist for classifying data as "private."
Minnesota Department of Public
Safety Commissioner Charles
Weaver bases his June 27,2001
Temporary Classification Request
on the belief that DPS has a "contractual obligation" to "prevent the
release" of public information.
The DPS's role as a Minnesota
State Department is that of law enforcement on behalf of the citizens
ofMinnesota, specifically including protection ofthe 'Valid public
policy interests ofthe State" by inspecting gambling equipment, performing background checks on Indian casino employees, and exam-.
ining audits oflndian gambling enterprises to ensure that Indian gambling operations within the state of
Minnesota are fair, honest and protected from criminal influences.
Weaver's notion that his "contractual obligation" is to the Indian
gambling enterprises is misguided—he is a public official
whose obligations are to the citizens ofthe State ofMinnesota.
On July 5,2001, Weaver formalized the narrative ofhis June 27 re- .
quest into a "Revised application
submitted at the suggestion of tlie
Department of Administration," officially submitted by Charles R.
Weaver, Jr., Commissioner of Public Safety.
Question 6
In the July 5 revised application,
Question 6, DPS attempts to find a
legal basis for the requested nonpublic classification oflndian gambling audits in the Indian Gaming
Regulatory Act (IGRA), 25 USC §
2716. However, in the only federal
court decision on point to date, the
9th U.S. District Court of Appeals
found in Confederated Tribes of
Siletz Indians v. Oregon 143 F3d
481 (1998) that, "[t]o the extent tlie
Compact specifically permits or
prohibits the release" oflndian
tribal gambling reports, "the parties
are bound by it. Where the Compact is silent, however, neither
IGRA. the Indian Commerce
Clause, nor any other federal law
prevents" tlie state from releasing
Indian gambling records [emphasis
added]. The court also found that,
"[fjbe Records Laws do not seek to
usurp tribal control over gaming
nor do they threaten to undercut
federal authority over Indian gam
ing. To be sure, the Records Laws
could have a detrimental effect on
the Siletz Tribe if the Report contained damaging information on the
operation ofthe Chinook Winds casino and the release of that Report
would cause a decline in business.
That possibility, however, is fully
consistent with the IGRA's goal of
fair and honest gaming."
Question 9
In Question 9 ofthe revised application, Weaver claims that public
access to tribal gambling audits
would make DPS's monitoring of
Indian tribal gambling enterprises
in Minnesota "unworkable." He
makes three arguments to support
that claim, none of which justify his
temporary classification request:
a) Indian tribes' 'willingness' to
provide audit information?
The first of Weaver's arguments
is that release of tlie tribal gambling
audits "would have a detrimental
effect on each tribe's willingness to
provide audit information under the
tribal-state compacts to Public
Safety [DPS]. Public Safety relies
on audits as a tool in monitoring a
tribe's compliance with the tribal-
state compacts.... As a result. Public Safety's ability to ensure the integrity of Class III gaming in Minnesota would be threatened."
The compacts, signed by the
tribal government as well as the
state, require tlie Indian tribal governments to provide the annual audits whenever the State requests
them in writing. For example, the
Red Lake Tribal-State Compact
controlling video slot machines
reads, § 6.11, "The Band shall...
make copies of tlie audit and all
current internal accounting and audit procedures available to the State
upon written request. Tlie Band
shall permit tlie State to consult
with tlie auditors ..." Tribes with
gambling operations are required to
provide annual audits to federal
regulators under the Indian Gaming
Regulatory Act (IGRA); it is up to
the State ofMinnesota to request
than under tlie Tribal-State compacts.
Although Weaver claims tliat
DPS "relies on audits as a tool in
monitoring a tribe's compliance,"
the State has not requested the audits on a regular basis. In an article
published on July 29,2001, Sl.
Paul Pioneer staff writer Doug Tice
quoted DPS's director of its Alcohol and Gambling Enforcement Division, Frank Ball, as stating tliat
"the division has on file only 23 audits from 18 casinos over a decade.
All were voluntarily submitted, not
requested by [DPS]." It is therefore
questionable how much monitoring
DPS has actually done since the
compacts were negotiated in 1990-
1991, and DPS was assigned the
task oi'overseeing Indian gambling
operations since the State ofMinnesota had already established an
Alcohol and Gambling Enforcement Division (AGED) within
DPS. lf Weaver's argument here
was valid (and tlie DPS had been
doing its job of ensuring fair and
honest Indian tribal gambling operations in Minnesota), the DPS
should have been obtaining the audits from every Indian casino—on
an annual basis.
The Commissioner of Public
Safety's notion that the State of
Minnesota should wriggle out of
complying with State law—the
Data Practices Act—because the
organizations that he is charged
with monitoring might not be "willing" to comply wilh other State
laws—providing gambling audits
to DPS—is really astonishing if
you think about it. How many
highly placed law enforcement officials would even think of arguing
that organizations which have demonstrated corruption and links with
organized crime in the past should
be placated by State policies of secrecy, or that State laws should not
be enforced because those organizations might not be "willing" to
comply with that State law?
Weaver's assumption Uiat compact-mandated tribal provision of
casino audits might be unenforceable is not valid. Nine ofthe
tribes—whose operations represent
about 95% ofthe gambling revenues—are subject to State ofMinnesota criminal jurisdiction under
Public Law 280. Red Lake and
Bois Forte reservations are exempt
from statejurisdiction under PL
280, but as the U.S. Supreme Court
recently established in Nevada v.
Hicks, _ U.S. _ (June 25,2001),
when "state interests outside the
reservation are implicated, States
may regulate the activities even of
tribe members on tribal land."
Minnesota has multiple off-reservation interests in Indian gambling
enteiprises, including the "high social costs" documented by Ford
Foundation researcher Robert
Goodman in 1994, increased state
expenditures on infrastructure due
to gaming (from roads to treatment
of compulsive gamblers), and the
influence which Indian gambling
enterprises are exerting on Minnesota politics through political contributions. In 1992 Minneapolis
Star Tribune staff writer Robert
Whereatt reported Indian casino
PACs to be the eighth-largest contributor in 1990. Joe Marble and
David Hoch ranked Indian gambling-enterprise PACs to be "3rd as
a group" in Minnesota political
contributions during 1999-2000.
The Boston Globe reported on
March 12,2001 that Indian tribes
that operate casinos have contributed nearly $40 million to Washington politicians and lobbyists over
the past five years.
Furthermore, if Indian tribal governments were to refuse to comply
with the provisions ofthe State-
Tribal compacts—including the
provision of audits to the state under §6.11 —then the state would
have potential grounds to renegotiate the contracts, or even to withdraw from them. Since Minnesota
is among the few states that does
not currently receive a sh;
Indian gambling revenues, voiding
the current compacts would not be
disadvantageous to tlie state.
b) Increased criminal activity?
Weaver's second argument is that
"disclosure ofthe financial information in the audits could lead to
increased criminal activity in the
tribal gaming operations since the
privacy of this data currently
shields the gaming operations 'from
organized crime and other corrupting influences'." This is a spurious
argument.
Release ofthe Mystic Lake casino audits by tribal official
Leonard Prescott on April 26,1994
and their publication in the Minneapolis Stair Tribune the next day did
not result, as Commissioner
Weaver argues, in an increase in
criminal activities, nor did it compromise security or surveillance-related information. The publication
of audit infonnation from the Red
Lake and White Earth casino by the
Native American Press/Ojibwe
News has not resulted in any increased criminal activity at those
tribally owned and operated casinos.
Weaver's notion that secrecy
begets honesty is at variance with
the philosophy underlying tlie "sunshine laws" aid openness in government in the State ofMinnesota,
as well as with a plethora of federal
laws mandating public disclosure of
coiporate information, for example
federal securities laws and antitrust
legislation. Furthermore, financial
infonnation for all other forms of
gambling in Minnesota—the state
lottery and various charitable gambling operations—is public information under state law.
DPS to pg. 3
Children's Preventive Health Initiative launched
By Jean Pagano
Blue Cross and Blue Shield of
Minnesota Foundation have announced a $ 1.4 million, multiyear
grants program. This program is to
improve access lo and encourage
the use of preventive health care
and dental service facilities for both
children and adolescents.      The
program, entitled Growing Up
Healthy In Minnesota, is particularly focused on tlie needs of immigrant communities and communities of color.
In a state that is considered to be
one ofthe healthiest in the nation,
many disparities exist in rates of
health care coverage and health status. A recent set of studies by the
Minnesota Department of Health
(MDH) and the Urban Coalition indicates tliat among American Indi
ans, populations of color, foreign-
born populations, and low-income
families compose tlie greatest part
of Minnesota's underiasured.
Sadly, preventive services and
not easily or universally accessible
or provided to young people from
all racial and ethnic backgrounds in
Minnesota according to an Urban
Coalition study.
Daniel Johnson, executive director ofthe Blue Cross Foundation
stated "Many kids face significant
barriers to good health. Growing
Up Healthy is designed to reduce
those barriers, and get kids the preventative care tliat sets them on a
course for lifelong health".
"This program builds on our
record of helping people with
unique cultural needs navigate the
care system and increasing preventive care, including immunization
rates, forchildren", Johnson said.
Tlie Blue Cross and Blue Shield
Foundation has taken an important
step towards making healthcare understandable at the local level, in
tlie very communities that need it
tlie most. Overcoming Racial Disparities in Health, a 1999 report by
tlie Surgeon General, pointed out
tlie unique role that grant making
foundations can fulfill in the health
field. Blue Cross and Blue Shield
Foundations Givwing Up Healthy
In Minnesota is exactly what the
Surgeon General had in mind.
Blue Cross and Blue Shield
Foundation, in conjunction with
Cover All Kids, will focus on the
increasing utilization of preventive
care and improving access to health
care coverage. Tlie Foundation will
make Grvwing Up Healthy grants
of up to S200,000 for two years.
web page: www.press-on.net
Native *
American
Press
Ojibwe News
We Support Equal Opportunity For All People
A weekly publication.   Copyright, Native American Press, 2001
Pounded in 1988
Volume 13 Issue 36
August 3,2001
(AP Photo/Ron Edmonds)
President Bush shakes hand with Navajo code talker John Brown, right, as House Speaker
Dennis Hastert, R-Ill, left, looks on, as they participate in a ceremony honoring Navajo code
talkers in the Rotunda ofthe U.S. Capitol, Thursday, July 26, 2001, in Washington. The 29
.original men—only five are still living—were awarded the Congressional Gold Medal for their
service in the Pacific during World War II.
Mille Lacs
lawyers file
response in
Armstrong case
(Press/ON) Attorneys representing tlie Mille Lacs Reservation
Business Committee replied last
week to motions by plaintiffs in a
civil rights lawsuit contesting the
jurisdiction ofthe RBC-controlled
court to hear the case.
Press/ON publisher Bill
Lawrence and reporter Jeff
Annstrong filed suit in U.S. District Court in 1998 over the arrest
and incarceration ofthe reporter at
a tribal meeting the previous year,
alleging numerous violations of
tlie U,S. and tribal constitutions.
In a brief prepared by Joseph
Marshall, a frequent defender of
police officers in civil rights complaints, and Marc Slonim and John
Arum ofthe Seattle law firm
which represented Mille Lacs in
its 1837 Treaty lawsuit, tlie RBC
legal team argues tliat the tribal
court has jurisdiction because the
newspaper had a "consensual rela-
tionshipi' with tribal officials.
"Plaintiffs apparently recognize
the consensual nature of their relationship widi the MCT and the
Band as they allege in their Complaint diat Armstrong was 'invited
by various members ofthe Minnesota Chippewa Tribe' to attend the
meeting ofthe TEC," the defense
brief argues. "Indeed, tlie gravamen of Plaintiffs' claim is that the
Band and the MCT improperly
decided to terminate that consensual relationship by excluding
Armstrong from the Band's property and the Tribe's meeting."
Citing the second exception to
tlie general federal rule that tribal
courts lack jurisdiction over non-
members, the attorneys maintain
that the right oftribal officials to
selectively exclude non-Indians
and reporters from official meetings is a vital function of self-government
"Armstrong was not merely
seeking to report on the TEC's
public actions or decisions.
Armstrong was seeking access to
tlie TEC s sensitive deliberations.
It cannot be seriously disputed tliat
tribal governments, like all governments, have an inherent right to
regulate public access to their deliberative processes," the RBC
brief argues.
Although the U.S. Supreme
RESPONSE topg. 5
MCT land settlement
distribution stalled by
intra-tribal dispute
By JeffArmstrong
A running dispute between officials ofthe six MCT reservations continues to stall distribution ofa controversial S20 million
U.S. land claims settlement involving more than 800,000 acres of
reservation lands and timber
token and sold by the government.
Widely opposed by grassroots
tribal members at a series of meetings tliat year, tlie settlement was
rejected by die TEC Oct. 22, 1997,
in part due to opposition from
Leech Lake officials. Shortly
thereafter, the TEC reversed itself
with the support of Leech Lake alter promising the reservation 50%
ofthe settlement proceeds, an
amount roughly comparable to its
reservation land lost under the
1889 Nelson Act.
I lowever, the TEC reneged on
the deal and approved a distribution plan equally dividing the
ftmds between the six reservations,
which White Earth opposed in favor of distribution in accordance
with population. The Bureau of Indian Aflairs rejected the TEC's
distribution plan, pointing out that
tlie two largest reservations with
73% ofthe tribal population,
White Earth and Leech Lake,
would receive less than half of the
settlement, S6.6 million, while the
27% oftribal members on the four
other reservations would be allocated $13.4 million.
According to a June 6 report by
the Acting Deputy Commissioner
oflndian Affairs, "Leech Lake is
connect in thai they suffered the
greatest loss underthe Nelson Act.
MCT's position has merit because
if the Tribe were recovering lands
instead of money, the lands would
be under tlie control ofthe MCT
instead ofthe bands. Any income
generated off of restored lands is
also under the control of MCT.
White Earth's position has merit
because in historical claims such
as this one, it has been the
Bureau's policy to distribute the
funds to die entity that would have
received the funds at the time of
taking. In this case, the funds
would have been divided per
capita and paid to the tribal members in the 1940's."
Instead, the BIA proposed a
compromise which would take
into account both reservation
population and the percentage of
land at issue. The proposal would
have distributed 65% ofthe funds
based on population and 35% calculated on the basis of reservation
lands. White Earth was the only
reservation to support die BIA
compromise.
The Bureau then determined
that the settlement should be divided solely on tlie basis of population in accordance with tlie
tenns ofthe Nelson Act and that
any other distribution plan must
be approved by a tribal referendum.
"We do not find any compelling
reasons to support a six-way split
ofthe fund tliat would result in
giving preferential treatment to the
membership of four smaller bands
at the expense ofthe two larger
bands. Any allocation ofthe funds
between the Bands that is not prorata should be adopted by a majority vote ofthe membership in a
tribal referendum," the BIA report
states.
Daisy West, author ofthe report, said die TEC's support for
the per-capito plan is not required.
"We're not looking for a vote
for it," she said. "They wouldn't
have to approve it."
Any alternative distribution,
however, would have to be "accepted or rejected by referendum.
That would show the will ofthe
people," said West.
West said if the tribe failed to
agree or submit to a distribution
plan, the funds would sit in an interest-bearing account until tribal
leaders submitted a BIA-approved
plan to Congress.
"Ifthey didn't want the money,
it would be handled like the Black
Hills," said West.
Citing a recent Western
Shoshone decision, West said
grassroots tribal members could
also urge Congress to release the
funds over the heads oftribal officials.
If individual reservations continue to oppose the per-capito distribution plan while the majority
support it, West said, the BIA
would have to reevaluate the situation.
The TEC met secretly in Fond
du Lac diis week, according to
tribal sources who speculated that
tribal land claims may have been
on the agenda.