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Attorney claims new White Earth constitution not legal

The White Earth Nation may have a new constitution, but one of its own attorneys is attempting to put the brakes on implementation.

Frank Bibeau is a tribal attorney and enrolled member of White Earth who has begun the process of filing an appeal to overturn the election results from the Nov. 19 referendum that led to the White Earth Indian Reservation adopting its own constitution.

When White Earth did that, it essentially stepped away from the Minnesota Chippewa Tribe and the blanket constitution that governs White Earth and five other Chippewa bands in the state.

Bibeau, who has remained an outspoken opponent of the new constitution both before and after the election, says although he personally favors about 90 percent of the newly adopted constitution, he also believes White Earth simply did not have the legal authority to break away in the manner it did.

Election Contest Judge Robert Blaeser will take Bibeau's brief under consideration sometime after Dec. 20, after which time an attorney for White Earth's election board will respond. Judge Blaeser will then make a ruling on whether there is enough evidence to agree to a hearing on the case.

At issue are voter turnout, lack of a legal reform vehicle and federal recognition.

The claims

There was never anything written in the Minnesota Chippewa Tribe constitution that provided a legal avenue for which an individual reservation could adopt its own constitution. There was no process to follow; therefore, Bibeau claims the move cannot be legitimate.

"There's no law that they did this under or anything to bind it," said Bibeau. "What mechanism are they pointing to that gives them the right to do what they've done here?"

Bibeau claims the board disenfranchised its own citizens by holding a two-step mail-in ballot election instead of an on-Reservation vote at the polls. He says the process was not exactly "user-friendly" for people in poverty who don't tend to easily bring themselves through that process. This, he claims, was a way for White Earth leaders to disenfranchise many of its citizens on the reservation who might have voted "no."

Voter turnout was not at 30 percent — a requirement by the MCT in order for a vote to be carried.

"I do not know the actual number (percentage of voters), but of the estimated 20,000 White Earth members, supposedly 17,000 are voting age," said Bibeau. "3,500 divided by 17,000 equals about 20 percent participation."

Bibeau also says that 30 percent is supposed to be taken from a list of eligible voters from White Earth, but claims it was instead taken from a list of registered voters, making it easier to obtain 30 percent.

The vote to adopt a new constitution, should not, according to Bibeau, be set up in a referendum-style vote. It's too complex, he says, to simply require a "yes" or "no" vote. "There are far too many changes within that constitution that people have to vote on, and they have no way of deciding the individual issues within it," he said.

Violating the MCT's constitution in this way, puts White Earth's federal recognition in jeopardy, says Bibeau. He also believes White Earth citizens have "no clue" what they have on the line if they do not obtain federal recognition through the MCT. He believes many of White Earth's citizens were purposefully kept "ignorant" of the implications of adopting a new constitution without first obtaining MCT approval.

The other side

The man who will have to defend the White Earth Election Board against these claims is White Earth attorney Joe Plumer.

Plumer says although there is probably some merit behind some of Bibeau's claims, he says the fact that the issue was so well publicized leading up to the election lends little merit to the claim that White Earth residents were being disenfranchised.

"It's not like this has been happening in secret," said Plumer. "There were 50-plus public meetings to educate people on the issue and three direct mailing pieces explaining the voting process that made it very simple and the return envelopes for the registration and ballots were already stamped and everything to make it very easy to participate."

With regards to whether White Earth had the right to adopt its own constitution, Plumer says the fact that there is nothing laid out on how to establish a separate constitution, simply means they will have to essentially take one step at a time throughout the process.

"I'm not worried about (the new constitution being thrown out), but there are some issues that there aren't clear answers for, and so we need to work federal people in order to be able to come to some understanding," said Plumer.

View from the outside

University of Minnesota Professor of Indigenous Law John Borrows has been keeping a close eye on this issue, and believes that while many of Bibeau's legal arguments won't carry, he does say Bibeau brings up an excellent point on the "breakaway" issue.

Was it legal?

"There are different interpretations of the law depending on who you ask, and there is very little clarity when it comes to constitutional change," said Borrows, who says many of the same issues were encountered when the federal constitution was adopted. "It's always like groping in the dark and searching for solutions when you don't necessarily have 100 percent consensus."

Borrows says because there are no clear-cut laws on issues like this, the future of White Earth will depend on negotiations — first the negotiations with the Minnesota Chippewa Tribe, then with the Bureau of Indian Affairs.

White Earth Chairperson Erma Vizenor has always expressed a desire to stay within the Minnesota Chippewa "frame" over completely withdrawing from its organization, but that means White Earth leaders must first convince leaders of the other Chippewa bands to change.

The executive committee of the Minnesota Chippewa Tribe held a special meeting in the Twin Cities recently, during which time Vizenor introduced a resolution asking for an amendment in the MCT constitution to allow all six bands the right to govern themselves.

"I didn't ask for a vote yet though," said Vizenor. "I wanted each one of them to take it back to their tribal councils, discuss it and decide for themselves before I ask for action at the regular January meeting."

Vizenor believes the best case scenario for White Earth would be to remain as one, big unit. However, at this point she does not seem to have a feeling as to which way the MCT leaders are leaning. MCT Executive Director Gary Frazer declined comment on the issue.

If the other five bands vote down the amendment to the MCT constitution, White Earth will be forced to withdraw and attempt to obtain federal recognition through the Bureau of Indian Affairs.

According to Borrows, although that wouldn't be a "sure thing," he says the bureau does make a true attempt to adhere to the wishes and expressed sovereignty of the tribes.

"And the fact that White Earth has the numbers going for it (with its large population) will make it easier for the federal government to recognize it as legitimate," said Borrows, who warns its large population could also go against it in terms of federal resources.

But even if it did come down to independent sovereignty, Plumer says the transformation process from the MCT to White Earth's new constitution will go so slow that it will give leaders plenty of time to lay the proper groundwork as they go.

"We would make sure that White Earth has federal recognition before going ahead with anything else," he said. "We're not about to go and do something stupid."

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Paula Quam

Paula Quam is the editor for Forum Communications Co. newspapers in Detroit Lakes, Perham and Wadena, all in Minnesota.

(218) 844-1466