The following questions were presented to the White Earth Legal Department, their responses are as follows:
1. MCT LAND
Currently each Band maintains the MCT lands within their own Reservation boundaries. Some of these lands house MCT members from various bands, some are home to gaming enterprises.
a. How much MCT Land does each Band have on their Reservation and how was it attained?
Review information from Laura; how each parcel was attained will be more difficult to determine; MCT land was generally purchased with funds from MCT (most MCT land purchased under 1937-1964 constitution when there was no mechanism for Band specific governance)
b. How much, if any, of MCT land on the White Earth Reservation was originally owned by the Band, and what are the legal options for separating White Earth land from MCT Land?
All MCT land (and for that matter, all non-MCT land) within the boundaries of the Reservation was, at one point, owned for the benefit of the Indians of the White Earth Reservation pursuant to the Treaty of 1867.
MCT has no mechanism to manage its own lands. There were some attempts at management and regulation of MCT lands at the TEC level in the 1970s and 1980s, but ultimately, the MCT lands within each reservation are managed by the reservation on which the lands are located.
c. What are the legal options for White Earth attaining title to all MCT land on the White Earth Reservation?
MCT has expressed its desire to legislatively or administratively have the MCT land transferred to each reservation as MCT does not manage or regulate its own lands. There is a political obstacle to overcome (Fond du Lac and Grand Portage have historically not been in favor of this proposition), but at various times, White Earth, Leech Lake, Mille Lacs and Bois Forte have expressed a desire in having MCT land transferred to each reservation.
d. Does implementing the new Constitution have any potential impacts on White Earth members domiciled on MCT lands on other Reservations? If so, what are the potential impacts?
That would be up to how the Constitution is implemented, what impact the new Constitution has on the relationship between the White Earth Nation and the MCT, and the response of other Band governments to White Earth’s reform attempts.
Generally speaking, leases of trust land must be approved by the BIA (changes came with the HEARTH Act, but I am not aware of any MCT Band that is implementing their own trust leases at this time). Revocations or reassignments of leases also need BIA approval with specific reasons on provided under the regulations. There is a potential that White Earth member leases on other reservations may be non-renewed in the long term, but it is unlikely those leases will be cancelled or reassigned outright without any other valid reason (waste, destruction, etc.)
2. FEDERAL RECOGNITION & SOVEREIGNTY
Although all six Bands of MCT have their own government-to-government relationship with the Federal government, they are joined under one IRA Constitution as MCT.
a. What does White Earth need to do to ensure we maintain our government–to-government relationship with the United States federal government during this transition to the new Constitution?
The most important thing to ensure the gov-to-gov relationship continues is to stay on the official list of Tribal entities recognized by the BIA to receive services from the federal government. This is a list mandated by Public Law 103-454 to be published in the Federal Register each year. Currently, White Earth is listed as a “component reservation of the Minnesota Chippewa Tribe.” However, other tribes have petitioned the BIA to change their name for various reasons; leaving the MCT would be a reason to request the BIA change White Earth’s name on the list.
b. Does separating from MCT necessarily mean we lose our federal recognition?
The Ojibwe on the White Earth Reservation had a relationship with the federal government dating back to the Treaty of 1855 and Treaty of 1867. The MCT did not provide White Earth with federal recognition. The government-to-government relationship between White Earth and the federal government has existed and continued unabated since the mid-1800s. From 1937 until the time of Self-Governance compacts, a lot of that relationship was accomplished through the vehicle of the MCT, but it cannot be said that the MCT completely subsumed the specific relationship between White Earth and the Federal Government. The Band’s Gaming Ordinance (approved by the BIA/NIGC), 638 contracts, and Self-Governance Compact are all recent examples of the specific relationship between White Earth and the Federal Government without any oversight or involvement from the MCT.
c. Was White Earth recognized as inherently sovereign prior to agreeing to join MCT under one IRA Constitution?
Yes. There was no specific mechanism for “federal recognition” until after the termination period, when some tribes’ had their sovereign authority and government-to-government relationship terminated. Tribes that were never terminated during the termination period continued their “federal recognition” going back to their original treaties with the federal government. Joining the MCT did not revoke White Earth’s inherent sovereignty.
d. Did joining MCT extinguish White Earth’s sovereign status?
No, see above.
e. As a sovereign, doesn’t White Earth have the right to separate from MCT in the same manner as White Earth joined MCT?
This can be a tricky question. The way White Earth joined the MCT was in a single election held where ALL eligible Ojibwe people voted in one election to join. The appropriate question might by “Can White Earth decide by itself to leave the MCT?” I think the answer to that question is yes, because White Earth has maintained its inherent sovereignty and the government-to-government relationship with the federal government independent of the MCT.
*Repeatedly, the federal government referenced the sovereign status of MCT and the sovereign status of each individual Band in testimony related to Leech Lake’s challenge re: MCT Judgment Fund Distribution, as the example below illustrates:
“H.R. 1272 raises a unique and complex question involving the United States' respect for the sovereignty of tribal governments. The Minnesota Chippewa Tribe is a sovereign government, formed in 1936 under the Indian Reorganization Act, and the TEC is the governing body of the Tribe. The TEC is comprised of twelve members, two from each of the six constituent Bands. Each constituent Band, however, also functions as a distinct sovereign government.”
Currently, White Earth citizens are federally recognized as members of MCT.
a. When White Earth implements the new Constitution and citizenry or membership criteria reverts back to lineal descent for White Earth, can White Earth citizens still be recognized as members of MCT? Why or why not?
In black-and-white, under the current MCT structure, the answer would be that White Earth citizens must continue to meet the eligibility criteria set out in the Constitution and enrollment ordinance. However, there are currently two bands (Mille Lacs and Fond du Lac) that have a “moratorium” on accepting new enrollees from other MCT Bands even though there is no mechanism to allow for moratoriums contained with the Constitution or the enrollment ordinance. Every time a member of Leech Lake or White Earth eligible for a transfer to Fond du Lac or Mille Lacs is denied the transfer due to these unconstitutional moratoriums, the enrollment process is violated. Therefore, MCT really needs to overhaul its entire enrollment process before denying any other Band the right to change its process.
b. Can MCT members who are White Earth by blood and also another Band by blood, choose to forfeit their membership to White Earth and instead maintain their membership with MCT? Why or why not?
Again, currently, in black-and-white, theoretically, the answer is yes to those who are members of another Band, but not to those who are members of White Earth. A member only eligible for enrollment in White Earth would not be able to “forfeit” membership in White Earth and maintain membership in MCT, as that individual would not have a mechanism to maintain MCT membership without the band membership. However, MCT really needs to change their enrollment process as noted above, so this area continues to be a “gray” area with room for interpretation.
c. What impact do you see the new Constitution will have on other MCT members?
This depends on whether the relationship between the MCT and the White Earth Nation under the new constitution continues or ends. If the MCT/White Earth relationship ends, there should be little to no impact on other MCT members. If the relationship continues, it will mean that the MCT will have increased numbers, and that could potentially impact the MCT’s human services programs (which typically operate for off-reservation members, probably the bulk of “new” White Earth citizens) and possibly the MCT Finance Corporation’s home loans.
d. Do you believe White Earth would be disenfranchising the rest of the MCT membership by implementing the new Constitution?
No, I do not believe so. White Earth members can and should be able to direct their fate. This is the definition of self-determination. To say that White Earth determining its own future “disenfranchises” other self-determining people doesn’t make sense.
e. There are concerns about meeting the needs of all members when we transition to lineal descent and our enrollment criteria. What is your advice on this?
See Chapter 2, Article 2 of the Constitution of the White Earth Nation.
f. Do you know how IHS would be impacted when we transition to lineal descent?
IHS currently has capacity to serve descendants of White Earth.
4. TRIBAL STATUS
In the Indian Reorganization Act “The term “tribe” wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” Understanding this definition is not the same as some of our membership would construe it to be.
a. What impact does being under an IRA Constitution have on tribes?
The IRA Constitutions were simply a “boilerplate” way for the federal government to continue the government-to-government relationship between tribes and the federal government on terms that were easier for the federal government to handle than many traditional forms of governance. Several tribes (most notably Navajo), rejected IRA Constitutions, and today, about 60% of the 566 federally recognized tribes have adopted IRA Constitutions.
b. How many other “Tribes” have been established as a confederation of multiple Reservations under one IRA constitution? What are the legal advantages and disadvantages of this configuration?
To my knowledge, there is no other “Tribe” that is established as a confederation of multiple reservations. Some IRA governments are confederations of different tribes residing on the same reservation (due to circumstances of history), such as Salish and Kootenai, the “Chippewa-Cree” of the Rocky Boy, Shoshone and Northern Arapaho (Wind River), etc.
c. Briefly, what historical facts led to the six sovereign Bands forming MCT under one IRA constitution?
Primarily, it was the Nelson Act of 1889 and the federal government’s allotment policy. Prior to allotment, each Reservation was distinct based on history and its treaty with the federal government. The Anishinaabe of those reservations were somewhat transient, moving from one reservation to another. Then the federal government came in with the idea that five of the six Reservations should be abolished, and each of the Anishinaabe moved to White Earth. When this didn’t work, they decided to divide up the land, “civilize” the Indians, and open the surplus land to non-Indian settlement. But it was this Nelson Act and Allotment policy that allowed the federal government to view the six bands as one tribe, to the exclusion of other Anishinaabe even within the state of Minnesota.
The federal government realized that they had an easier time dealing with one tribe rather than six bands individually, so they created the Consolidated Minnesota Chippewa Agency, the federal forerunner to the Minnesota Chippewa Tribe. When the policy of Allotment officially failed, the federal government, wishing to continue its streamlined relationship with the six bands, formalized the only multi treaty, multi-reservation government under the IRA with the 1936 MCT Constitution.
d. What is our legal status with the Federal government now and how would you foresee it changing when the new Constitution is implemented?
The White Earth Band is a federally recognized tribal government, due to its long standing government-to-government relationship with the federal government. There should be limited or no change to this status under the new Constitution, if the federal government recognizes the new Constitution.
The referendum was held on November 19, 2013 with 2,780 White Earth members voting for approval and 712 White Earth members voting to reject the proposed Constitution.
a. Does each Band have the legal right to conduct a citizen referendum?
Yes. Article XIV of the Revised Constitution and Bylaws of the Minnesota Chippewa Tribe recognizes the right of reach Band to hold a referendum, either through RTC action or through petition by the resident eligible voters.
Outside of Article XIV, each Band does have the right to conduct referenda as inherently sovereign, self-governing societies.
b. Under the Band’s own sovereign governing authority, was the referendum held on November 19, 2013 legally valid?
Yes, the referendum was legally valid, but there are arguments against its validity. White Earth followed 25 U.S.C. § 476, which states “Any Indian tribe shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws.” In doing so, White Earth interpreted “any Indian tribe” in this provision to include the White Earth Reservation.
There are arguments against the referendum’s validity, including that in order for White Earth to change its Constitution, White Earth would have to first go through the MCT Constitutional amendment process.
c. Did the referendum need to follow the MCT Election Code?
No, the referendum did not need to comport with the MCT Election Ordinance, but the referendum did follow the MCT Election Ordinance to the extent that the Ordinance was applicable. For the conduct of the November 19, 2013 referendum, White Earth followed the post relevant ground rules – those spelled out in the United States Code.
d. Should voters have been required to submit notarized ballots to vote in the referendum?
There is a resolution that stated that ballots would be required to be notarized. However, the White Earth RTC later amended this provision and stated that a notary would not be required for the acceptance of ballots.
e. Do you think the referendum held on November 19, 2013 met the requirements for the number of voters that were necessary to consider it valid?
The number of ballots cast exceeded the percentage required under 25 U.S.C. § 476, so yes, given the relevant ground rules White Earth used, the referendum met the requirements for the number of voters to be considered valid.
f. Does a White Earth citizen referendum require a Secretarial Election?
No. Secretarial Elections are governed, overseen and conducted by the BIA for specific reasons. Under its inherent sovereign authority, White Earth does not need the BIA to conduct a citizen referendum.
6. NEW CONSTITUTION OF THE WHITE EARTH NATION
a. Can we legally discard the new Constitution and stay as we are now?
It is unlikely the new Constitution can simply be “discarded.” The people approved the new Constitution in a referendum vote. The intent of those voters was to approve a new Constitution for the White Earth Nation. Simply “discarding” the new Constitution without further action by the people will potentially de-legitimize future reform attempts.
b. If we disagree with portions of the new Constitution, what are our legal options for changing it?
There is an amendment mechanism built-in to the new Constitution. No governing document is perfect or will please 100% of the people. The important thing is that a governing document protects individual rights, outline realistic limits on governmental authority, and provide checks and balances on authority. Outside those parameters, changing the Constitution is at the will of the people and their elected representatives.
GENERAL CONSTITUTION QUESTIONS
1. Why is this constitution important to the White Earth Nation?
Constitutional reform has been an important issue on White Earth since the 1980s. The governmental crisis in 1996 showed that the Minnesota Chippewa Tribe (MCT) constitution does not provide governmental checks and balances and does not protect the civil rights of White Earth citizens. Remember the history of MCT. The organization was proposed by BIA staff in the Minnesota Regional BIA office in 1934 with the goal of making communication, management and control easier for the BIA. Consequently, the current Revised Constitution of MCT has at least 17 sections where BIA approval is required before actions of the tribe are valid. More importantly, the current MCT constitution does not provide for a good government structure, does not provide for citizens rights, and does not provide a base for the cultural, economic and democratic well being of White Earth citizens. Simply put, the MCT constitution does not meet the needs of White Earth citizens; the White Earth Nation needs its own constitution.
2. What happened to the earlier constitution that we worked on?
White Earth citizens came together as delegates and drafted a constitution in February 1998, two years after the White Earth government crisis showed the need for a new White Earth constitution. This proposed constitution was discussed in the communities that summer of 1998. Remember how deeply divided the communities were at that time. The consensus was that it was too early to move forward with that draft constitution, but that it would be revived and accomplished at a later time.
3. How the constitution reform process started and how was it written?
This constitutional process started in 2007 when each of the ten Community Councils appointed two delegates to attend the constitutional convention. White Earth citizens at large were also invited to apply to become constitutional delegates; all who applied and who were at least 18 years of age were accepted as a delegate. Forty (40) delegates were sworn in by the Honorable Judge Anita Fineday at the opening of the constitutional convention.
Between 2007 and 2009, the delegates convened four constitution conventions, which were all open to the public. After the 3rd convention in October 2008 a drafting team was formed to create a draft based on conversations and decisions in the first three conventions. Gerald Vizenor was the principal writer. They presented this draft at the 4th convention in April 2009 where additional changes were made and the current draft was approved by a vote of 16 in favor and 8 opposed.
4 . When was the vote?
The referendum vote was held on November 19, 2013. Results were a record number of voters overwhelmingly agreed to ACCEPT the proposed Constitution.
5. Who voted?
All enrolled members of the White Earth Nation 18 and older were eligible to vote. The actual count of votes was 2780 to Approve and 712 to reject. Overall, 3492 people voted, which is over a 50% increase in voter turnout as compared to the last few elections for Tribal Officials.
6. Are we risking our relationship with the US government if we adopt a new constitution?
Not at all; if anything, the new constitution will strengthen our relationship with the US government because we will be able to work with them more directly in order to protect the needs of the White Earth Nation.
7. Have other tribes written their own constitutions? Other MCT tribes?
There are 562 federally recognized tribes and approximately 230 have adopted written constitutions. Over 60 tribes had written constitutions before the Indian Reorganization Act was passed in 1934. Approximately half of the tribes with written constitutions have completed or are working on updating their constitution.
Within MCT the Mille Lacs Band of Ojibwe are in the middle of a process of drafting and reviewing its own constitution. In Minnesota the Red Lake Nation has begun a process of drafting its own constitution as well.
8. When does the new Constitution go into effect?
White Earth is committed to see that an orderly transition takes place. In May, 2014 we were awarded a new grant to start the implementation phase.
9. Can descendents get enrolled now?
No. Until we have fully adopted the new Constitution, we will continue to be governed under the current Revised Minnesota Chippewa Tribe Constitution and follow the criteria as approved by the Tribal Executive Committee (TEC), specific enrollment criteria is outlined in Article II - Membership