Native American Press / Ojibwe News (Bemidji, Minnesota), 2001-08-31

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INDEX
News Around Indian Country 2
Commentary/Editorials/Voices 4
Smoke Signals of Upcoming Events 5
Classifieds 6-7
A "blank check"
for Indian secrecy?
pg4
Resistance -
Wells Fiasco
pg4
White Earth Treasurer
Erma Vizenor
responds to letter to
the editor
pg4	
Press/ON plaintiffs
confront tribal
attorneys in Mille Lacs
court
pgi
Commentary
Federal Appellate
Panel declares tribal
courts illegal
pg4
U.S. Appeals Court rules tribal court
legally non-existent
by Bill Lawrence
In an August 27 decision, a 3
judge panel ofthe U.S. Court of
Appeals for the 5"1 Circuit affirmed a federal district court's
ruling that the tribal court for the
Alabama and Coushatta Indian
Tribes of Texas (Tribe) was not
created in accordance with federally mandated procedures and
was therefore illegal. The Court
went on to further hold "that the
illegitimately formed tribal court
could not exercise jurisdiction
over the instant tribal oil and gas
lease dispute, that the oil companies were, therefore, not required
to exhaust their remedies before
the non-existent tribal court and
that the tribal council members
are not entitled to sovereign immunity against the oil companies'
declaratory judgment action in
federal court. In addition, the
Court reversed and remanded the
lower court's ruling that the Tribe
is entitled to sovereign immunity
from the oil companies' suit for
proceedings consistent with their
opinion."
The case arose from a dispute
nr>.
regarding the validity of nine oil
and gas exploration leases entered
into by the Tribe,
Comstock Oil and
Gas Company, and
Kerr-McGee Corporation (oil companies) between
1979 and 1993.
Two ofthe leases
were negotiated     ^^^^^^^
and executed by
the Bureau of Indian Affairs
(BIA) pursuant to the Indian Mineral Development Act of 1982.
The State of Texas executed the
remaining seven leases and the
BIA approved them.
On October 26, 1998, the Tribe
and seven tribal council members
filed suit in the U.S. District
Court for the Eastern District of
Texas against the oil companies.
Alleging that certain oil and gas
leases were void because the Secretary ofthe Interior had not approved them, the Tribe and the
tribal council members sought to
cancel the leases. In addition, they
claimed that the leases were void
1 he district court found
that the Tribes constitution
and bylaws, as amended
June 20, 1990, contained no
provisions for the creation of
a judiciary.
for deficiencies in production,
and that the oil companies had
misappropriated natural gas liquids from tribal lands. They
sought damages in excess of
$100,000,000, but dismissed the
federal action on December 18,
1998.
On that same date, the Tribe
filed suit in a tribal court that was
formed after the Tribe initially
filed suit in federal court. The
Tribe again sought to have the
leases declared null and void be-.
cause of deficiencies in execution
or production. The Tribe also
claimed that the leases were void
RULING to page 8
A 'blank check' for Indian secrecy?
by Clara NiiSka
Department of Administration
Commissioner David F. Fisher released his August 20,2001 decision
to classify Indian tribal gambling
audits as nonpublic infonnation
eight days after
it became offi-
COMITY:        cial,onAugust
Courtesy;
complaisance;
respect; a
wiSingnessto
28,2001.
Commissioner
Fisher's decision was faxed
grant a privilege, to Press/ON on
not as a matter ot August 29,
right, but out of along with a
deference and cover letter ex-
goodwill. Dowv. plaining that
Lillie, 114 N.W. "die temporary
1082,1088; Cox classification is
v. Terminal R. effective as of
—p ssas
oneofpractice, l>m*\°*
convenience and uponstetutory
expediency. classification
-Black's Law by the Legisla-
DJctbnaiyA* aire, whichever
Edition. is earlier."
The next step in the legal battle
over whether or not Indian casino
audits are public information is a
review by the Attorney General, to
whom Commissioner Fisher's decision "will be submitted ... for review as to form and legality."
Commissioner Fisher, in his August 28* "Office Memorandum"
approving Commissioner Weaver's
"Request for Temporary Classification of Data under Minnesota Statutes, Section 13.06," finds that "no
statute currently exists which either
allows or forbids classification as
nonpublic or protected nonpublic."
Some ofthe tribal attorneys had argued that the gambling audit data
was "trade secret data." Fisher
found that "analysis ... did not uncover sufficient evidence" to support classification of the audits as
"nonpublic trade secret data."
Indian "sovereign immunity"
overturns Minnesota state law
The reason that the State ofMinnesota reclassified the tribal gambling audits as "nonpublic" was because, Fisher wrote, "several tribes
have stated that they would refuse
to provide the data if the data were
to be made public, or that they
would require the Department [of
Public Safety] staff to review the
data on site.
"Should tribal governments assert claims of sovereign immunity
in response to enforce the [State-
Tribal] compacts," Fisher continued, L)PS "would have no legal recourse in obtaining the audits and
would be unable to monitor tribal
government compliance with the
Tribal-State compacts or to ensure
the integrity oftribal gaming enterprises pursuant to Minnesota Statutes Chapter 299L."
Commissioner Fisher explained
his decision that Indian gambling
enterprises' sovereign immunity
should supersede the Minnesota
Data Practices Act:
"Tribal governments represent
sovereign entities, not necessarily
bound as such by the same laws as
the State ofMinnesota, and this
sovereignty, as well a the need for
comity between sovereign entities
COMITY to page 8
Press/ON plaintiffs confront tribal
attorneys in Mille Lacs court
(NAP/ON) Press/ONpublisher
Bill Lawrence and reporter Jeff
Armstrong appeared in Mille Lacs
reservation court Aug. 23 for oral arguments opposite two attorneys defending tlie Reservation Business
Committee from a civil rights suit by
the plaintiffs. The complaint stems
from Armstrong's arrest and detention for attempting to report on an
Oct. 22,1997 Tribal Executive Committee meeting on a controversial
tribal land claims settlement.
Specially-appointed judge BJ.
Jones vigorously questioned both
sides to clarify the issues before the
court. Plaintiffs argued that the case
should be heard by the federal court
in which it was initially filed, while
the defendants maintained that the
issues involved went to the heart of
tribal self-government and should be
heard in the Mille Lacs Court of
Central Jurisdiction.
Jones said he was barred by a previous ruling by the Mille Lacs court
from considering plaintiffs' challenges to the legality ofthe court under the Minnesota Chippewa Tribe
Constitution. Instead, the judge focused his questioning on whether the
reporter was arrested pursuant to a
state law enforcement statute or under the tribe's inherent right to remove undesirable persons from
tribal trust lands.
Armstrong reiterated his contention that the tribal law enforcement
COURT to page 3
Judge says MN Supreme Court
ruling treats impoverished parents
as 'second class citizens'
By JeffArmstrong
Reversing a lower court ruling,
the Minnesota Supreme Court last
week upheld the termination of
parental rights in the case ofa
mother who failed to appear in
person at a pre-trial hearing in a
child protection petition in
Hennepin County. The 6-3 decision prompted a blistering dissent
from Alan Page, the high court's
sole minority member.
"I am compelled to comment
on what is alleged to be a common practice in Hennepin County
District Court—granting default
judgments at pretrial hearings in
termination of parental rights
cases. It appears that in many
cases the only reason for holding
such pretrial hearings is to see
whether the parents will appear in
person as opposed to appearing
through counsel and, if not, to enter a default judgment against
them on the merits ofthe termination petition," wrote Page.
Deloris Coats was ordered in
appear at a hearing scheduled for
Oct. 12,1999 in advance ofa
Nov. 23 trial date on her parental
rights to four children who had
been removed from her home in
1998. Her court-appointed attorney attended the hearing but withdrew from the case on the
grounds of inability to defend the
client due to lack of contact with
her. The district court then proceeded to hear the merits ofthe
case and issued a verbal order terminating Coats' parental rights.
However, the Court of Appeals ,
reversed the ruling on due process
grounds, finding that the court
"exceeded the usual scope ofa
pretrial hearing.. .and Coats was
neither present nor represented by
counsel."
But the state supreme court reinstated the judgment, maintaining that Coats' attorney did not
assert due process violations in ,
the district court or on appeal, and
that such claims were insufficient
grounds to overturn the trial court
ruling.
"Even if Coats had raised the
argument that the default judgment was void for lack of due
process and that issue was properly before us, she would not pre-
PARENTS to page 3
Mille Lacs
provides only
partial list of
arrest statistics
By JeanPagano
Six months ago, Press/ON requested arrest statistics from the
Mille Lacs Tribal Police Department under the Minnesota Data
Practices Act. The interest in the
arrest statistics was to determine
the number of arrests of Indians
by the Mille Lacs police department as contrasted to the number
of non-Indians arrested by the
same authority. Press/ON enlisted
the assistance of an attorney's office in order to obtain these statistics, after months upon months of
delays from the head ofthe Mille
Lacs tribal police. Finally, a letter
from attorney Randy V. Thompson seemingly caught the tribal
police's attention. Data was finally
provided by the Mille Lacs Police
Department for the years 1991
through 2001 (partial). Unfortunately, the data provided detailed
only Arrests by Race for Native
peoples, combined with Alaskan
peoples into a racial subcategory
ofNative/ Alaskan. Press/ON'will
again ask the Mille Lacs Tribal
Police for the complete set of statistics that include all race categories, not just for Native peoples.x
As soon as this information is
available, a comparison of statistics will be provided to our readers.
Statistics from 1991 seem rather
sparse, and perhaps describe only
a part ofthe year. There were a total of 16 arrests where the perpetrator ofthe arrest was listed as Indian/Alaskan by race. 7 of the 16
arrests were for 'Failure to Appear', or roughly 44% of arrests.
Statistics from 1992 are more
complete. A total of 154 arrests
were recorded for Native/Alaskan
people. Crimes ranged from 'Failure to Appear' to Assault-type
crimes and Alcohol related arrests. A total of 56 arrests were for
'Failure to Appear', or approximately 37% of arrests.
Numbers from 1993 show an
STATISTICS to page 3
Voice
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I    H   E
People
web page: www.press-on.net
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Volume 13 Issue 40
August 31, 2001
Photo: AssociatedPress
A member of "The Magic Flute" production, LaRae Wiley, left, of the Colville tribes, greets Kalispel tribal elder
Francis Cullooyah in Usk, Wash., Aug. 23,2001, as he arrives to explain the sacredness of the powwow arena
to cast members. Opera singers from New York, Seattle and Spokane work with the Kalispels to stage a production of Mozart's The Magic Flute," which will be performed on the Kalispels' open-air powwow ground on
■ Ajgust 29. To read the article, go to Newsbriefs on page 3.
Interior says trust
fund accounting
problems being
fixed
By Robert Gehrke
AssociatedPress
WASHINGTON - Interior officials are working to fix a complex
accounting system central to a S10
billion lawsuit over royalties from
American Indian land that the government allegedly mismanaged, attorneys for the department said.
interior Secretary Gale Norton
has ordered an outside appraisal of
the accounting system designed to
track the Indian trust funds, department attorneys said in court filings
Thursday.
Norton also has hired a staffer to
focus specifically on the accounting
system and given more authority to
a trustee overseeing trust fund reform.
A court-appointed investigator
slammed the $40 million accounting system this month, saying it was
faulty and "may not be salvageable."
The investigator also said Interior
officials and attorneys may have
given false reports to the judge in
the case and to Congress when they
said the accounting system was
nearly operational.
The Interior Department's inspector general has been asked to
investigate whether tlie U.S. District Judge Royce Lamberth was
misled, tlie department's response
said. The attorneys involved have
been removed from the case until
the probe is complete.
Lamberth is presiding in the
class-action lawsuit on behalf of
300,000 American Indians that alleges the government squandered at
least $ 10 billion from the trust accounts. The fund was established in
1887 to manage royalties from
grazing logging, mining and oil
drilling on Indian lands.
Attorney Dennis Gingold, representing the plaintiffs, said Interior
officials did not dispute in their response that the accounting system
is flawed, and the department misled the court.
"In this case you have facts that
are uncontested, and the facts demonstrate fraud," he said. Interior
spokeswoman Stephanie Hanna
said the outside assessment ofthe
accounting system and the inspector general's findings offer "a much
better evaluation of what is working
and what needs to be improved."
Casinos, tracks in new fight
Off-track betting revenue at stake
By Tom Zoellner
The Arizona Republic
Aug. 21,2001 Tlie ongoing fight
between Arizona's racetracks and
the Indian gaming industry has
flared up on a new front, this one
involving the off-track betting television signal beamed into three casinos. Racetracks are trying to prevent the Fort McDowell Yavapai
Nation from signing a contract with
a Nevada signal company that pays
off-track betting customers richer
rewards than any Arizona track. At
stake for the tracks are millions of
dollars in revenue and tlie potential
disintegration ofa tenuous business
relationship with the casinos that
has persevered even in the midst of
a bitter legal battle in federal court.
Tlie Yavapai Nation has been trying
for almost a year to amend an appendix of its state compact that requires an Arizona racetrack to get
any off-track betting business taking place at the casino. Oral arguments in a formal arbitration with
the Department of Gaming have
been set for Sept. 7, but racetracks
are threatening to sue to bring the
talks to a halt. A switch to an out-
of-state OTB vendor at an Indian
casino would violate the terms of
an Aug. 14 court order from U.S.
District Court Judge Robert
Broomfield, track attorney Neil
Wake said. Track spokeswoman
Jody Kent said the attempt by the
Yavapais to switch its off-track betting business away from Arizona
"smacks of retribution" in light of
Broomfield's ruling. "It could set a
precedent which could destroy racing in this state and put 6,000
people out of work," she said. "If
there's a disagreement here, it
ought to be solved between two
governments - the state and the
tribe," countered David LaSarte,
executive director ofthe Arizona
Indian Gaming Association. "For
an attorney for the racetracks to interfere here seems a bit self-serving" The Yavapai Nation also contends that it only wants the right to
get full use out of its Sl .3 million
off-track-betting facility. "The tribe
has worked diligently to appease
the owners ofthe local tracks and
accommodate the state and its
regulatory agencies," tribal officials
said in a brief last month. The
CASINOS to page 3
Plaintiffs press judge to hold
Norton, other officials in contempt
By Robert Gehrke
Associated Press
WASHINGTON- Ajudge is being pressed to find Interior Secretary Gale Norton and other officials in contempt for allegedly
misrepresenting their efforts to fix
a trust fund that squandered royalties from American Indian lands.
"Defendants have participated in
a pattern and practice of deception
and cover-up, repeatedly violated
court orders, intimidated witnesses, destroyed... trust documents and data and have filed innumerable frivolous motions," the
plaintiffs said Monday in the contempt request to U.S. District
Judge Royce Lamberth.
Lamberth is presiding in the
class-action lawsuit filed in 1996
on behalf of 300,000 American Indians claiming the government
mismanaged at least S10 billion
from the trust accounts. The fund
was established in 1887 to manage
royalties from grazing, logging,
mining and oil drilling on Indian
lands.
"Since this case has been filed,
tens of thousands of individual Indian beneficiaries have died," the
motion said. "They will never
know a just resolution to this
case."
The plaintiffs cited two reports
by court-appointed investigator
Joseph S. Kiefier III that said Interior officials dragged their feet
and misled the court into believing
the department was making
progress toward trust fund reform.
"These actions constitute an unprecedented fraud on the district
court and the court of appeals that
plainly have undermined the integrity of this judicial proceeding," wrote the plaintiffs' attorney,
Dennis Gingold.
The motion seeks a contempt
finding against Norton, Assistant
Secretary for Indian Affairs Neal
McCaleb, their predecessors in
the Clinton administration - Bruce
Babbitt and Kevin Gover - and
various government attorneys.
Interior spokeswoman
Stephanie Hanna had not seen the
NORTON to page 3