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RACHEL REABE: MPR's Mainstreet Radio coverage of rural issues is supported by the Blandin Foundation, committed to strengthening communities through grant-making, leadership training, and convening. We invite you to visit the Mainstreet website at www.mpr.org, where today's broadcast will be available for later listening.

You can also hear our series of reports and commentaries on treaty rights and tribal sovereignty and view a historic collage of Native photographs from the Minnesota History Center. The address, again for the Mainstreet website, www.mpr.org.

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Good afternoon. And welcome to this special Mainstreet Radio show live from the Mille Lacs Indian Museum in Central Minnesota. I'm Rachel Reabe. If you drive up the Western shore of Mille Lacs Lake, you'll find yourself on the Mille Lacs Indian Reservation, a sovereign nation with its own laws.

This hour, we're going to talk about tribal sovereignty and how the rules are different on the reservation. Joining me here at the museum is Henry Buffalo, a Minneapolis attorney and sovereignty expert. He's also a member of the Red Cliff Band of Ojibwe.

Our other guest is in our St. Paul studio. Mary Jo Brooks Hunter is the Chief Tribal Judge for the Ho-Chunk tribe in Wisconsin, where she's a member. She also teaches law at Hamline University in St. Paul. Welcome to both of you. Our phone lines are open also for your questions and comments. You can call us 1-800-537-5252.

Let's begin talking about tribal sovereignty. It's evolved over the past 200 years. Henry, what was the original intent of sovereignty as it applies to the Indian Nation?

HENRY BUFFALO: Well, as a matter of policy, the activity actually predates the existence of the United States in terms of the relationships between Indian Nations and the colonial governments that appeared on these shores.

At that point in time, they pretty much ruled themselves pursuant to what was known as international law. And within international law, they recognized each other as sovereigns. And they decided that they would engage through either a policy of war to achieve their political or economic objectives, or they could engage themselves in a policy of dialogue and negotiation, which would usually result in a treaty, again, achieving the same sort of political or economic objectives.

RACHEL REABE: Mary Jo, does sovereigns mean equals?

MARY JO BROOKS HUNTER: I think so in terms of the standard definition of sovereign that each sovereign nation or sovereign group has their own power or their own rank within that particular jurisdiction. It doesn't, I don't think, mean equal in the sense of is, say, the Mille Lacs Band of Ojibwe Nation equal to the US government? No, not equal in that sense but equal in their inherent sovereign abilities.

RACHEL REABE: We have seen sovereignty, though, go through quite an evolution. People now talk about quasi sovereignty or semi sovereignty. What does that mean?

MARY JO BROOKS HUNTER: Henry, I don't know if you're answering or I will. But I'll be glad to go ahead. My sense of that is that for Indian Nations, because tribes did have, as Henry mentioned, their own sovereign status prior to the arrival of Europeans, what has occurred with Indian nations in particular is that they have gone from fully independent nations and evolved into a status where we have a relationship with the federal government, which has placed some limitations on the level or the degree of sovereignty that an Indian Nation has that has come about by the legal history of American Indians in this country. Case law, legislation, treaties, all of that has impacted to have certain limitations on the sovereignty level of Indian Nations.

HENRY BUFFALO: There are at least two concepts involved in the word "sovereignty." One is internal and the other is external. And normally what one would view as the external powers of sovereignty would include those that involve the ability to negotiate treaties, or agreements with foreign nations, or to raise an army, or to print your own money.

All tribes in the United States that have a relationship with the United States no longer have those external forms of sovereignty. For the most part, what you see exercised now and which has been recognized by the courts and has evolved over this time pretty much are aspects of internal sovereignty, which is that idea of making your own laws within your territory and being governed by those laws.

RACHEL REABE: Henry, if we look at sovereignty as a pendulum swing, as so many other things are, did we go from being fully sovereign, or did you as an Indian Nation? Then this quasi semi-sovereign which some people would even call dependency. You are being protected by big brother. You are being taken care of by the United States.

Have we seen that now with the introduction of casinos and the economic turnaround that we're seeing on some reservations? Is that coming back now? Are tribes now asserting more of their sovereign rights than they were 15 years ago?

HENRY BUFFALO: No. The United States and tribal government relationship has been through various periods of policy development over time. And the period that I would say we're in right now is called the self-determination period and actually began in the early '60s.

And so we began to see a lot of the initial assertion of authority by tribes or assertion of rights in the natural resource area, like we have been discussing with respect to the example here in Mille Lacs involving the Mille Lacs Reservation, the other Chippewa, and the Fond du Lac Reservation in Minnesota, and the other Chippewa from Wisconsin. But I would say that it's been-- it predates the development of economic prosperity that some tribes are seeing as a result of gaming.

RACHEL REABE: Mary Jo, your comment on that.

MARY JO BROOKS HUNTER: I agree with Henry. I think what has occurred is that now the exercise of sovereignty is being known by others outside of the tribal jurisdictions. And that is why there's a view that it's being exercised more strenuously when that is not the case.

I just think that others are becoming more aware of it, feeling its effects more. However, there has always been that level of tribal sovereignty. And I think that tribes, because of the economic developments that have occurred recently, it is becoming more known to people who were unaware of what it was occurring on Indian reservations and jurisdictions.

RACHEL REABE: We have Dale from the Fond du Lac Reservation on the phone. Good afternoon.

DALE: Hi. I was just wondering here about these reservation business committees in this era of self-determination or self-governance here. They're operating with nonconsensual authority. In 1934, the Indian Reorganization Act was passed to supplant our natural forms of self-government.

And my question is, is why aren't these reservation business committees following the governing document, the Minnesota Chippewa Tribe constitution, and getting the consent of the affected people on this new era of self-determination and self-governance? The document that authorizes these people to run as a government is only authorizing them to run as reservation business committees.

RACHEL REABE: Let's give our guests a chance to respond to that. Henry, do you have a response?

HENRY BUFFALO: Well, it's correct that the Indian Reorganization Act authorized or at least provided a form of government under which tribes could organize. And all the tribes, as far as I know, in Minnesota, maybe with the exception of Red Lake, did indeed organize under a constitution and bylaws.

It's the vehicle, I guess, that was created. And it's been now in use for over 60 years, I guess, if you look back to 1936 as a starting time. And so for a lot of contemporary tribal people, it's the only vehicle that they know.

One of the issues I know when I was in college that always used to come up is, why don't we return to the traditional form of government? Well, I'm not so sure who would determine what the traditional form of government was. And in most instances, my experience with that is the people who argue most for that are people who cannot get elected to the existing forms of tribal government.

RACHEL REABE: We have Kevin from Northfield on the phone. Good afternoon.

KEVIN: Hello.

RACHEL REABE: Go ahead with your question or comment.

KEVIN: Yeah, I'm an Ojibwe from Bad River. And what I was thinking about on this issue is that those people who are protesting against Indian Treaty rights are also the same people that would be protesting for the rights of people in the former states of the Soviet Union, Czechoslovakia, Romania, Poland, and East Germany.

And they agree with the idea that those people have a right to self-government in those countries. But they do not agree that that issue is applicable to Native American people. And I was wondering if you had any comments on that comparison.

RACHEL REABE: Mary Jo, comment for that?

MARY JO BROOKS HUNTER: Well, I think that-- I want to respond to Kevin as well as to Dale. In terms of our self-governance, I think there is a real impatience about what we should be doing in terms of where tribes are going. And I'm not Ojibwe, I am Ho-Chunk so that I'm speaking more in terms of my own tribe.

But I think we are in a period of progression. It's important for tribal governments to respond to their own members in a positive way so that all of our tribal members or the majority of them are satisfied with our own tribal governments. And that is a process that's going to take time as we evolve and develop into whatever our governments take, whatever form of governments we evolve into in the next few years or in the next Millennium.

The other part of that is that I think for what our attributes of self-governance are, we have to take part and participate in our own governments and make them viable processes for our people so that those on the outside who may be critical of what we're doing can look at them and see that we are satisfied with them. So we project a positive image. But it's a process. It's an ongoing process.

Our tribal governments, as they stand now, have been changed recently. And we don't have traditional forms, as Henry said. We've evolved into some standardization of microcosms of the US government.

And now tribes are taking time to go back and to revitalize their systems to redo their constitutions. My tribe in particular, we've rewritten our constitution to incorporate things that are traditional as well as a system that's going to be beneficial to all of our people. And that's something that outsiders can understand when we talk about what we're doing to move into a better form of government.

HENRY BUFFALO: Kevin, [NON-ENGLISH]. One of the things that I would like to do is maybe respond to his point about who's protesting. And I would hate to generalize. I graduated law school from Wisconsin in 1981. And 1982, I created the Great Lakes Indian Fish and Wildlife Commission. So I've been involved in these issues in the hunting and fishing or natural resource issues since that time.

And it seems to me that certainly there may be some of those people that he described who would support other governments rights for self-determination and not support Indians rights for self-determination.

But I think we don't want to fall into a situation where we generalize across the board at that, because I know there are many of those people who are concerned about the harvest of resources by Indian people, are operating pretty much on the basis of ignorance in terms of what tribes have to do in order to harvest in this contemporary day.

And I think in your first hour, you talked a lot about the types of regulations that tribes have adopted and that they do. Their primary concern is protection of the resources. And that's the basis for adopting those regulations.

But I think a lot of those other protesters may come from those who are just sincerely concerned about the resource, don't have the information, listen maybe to too many rumors and base their judgments on that. And what I would like to have is to have them continue to have an open mind with respect to this issue.

RACHEL REABE: Indians themselves are split on the issue of tribal sovereignty. Some think it should be expanded. Others feel they would be better off if it was abandoned. We have Marvin Manypenny on the phone with us this afternoon. He's a member of the White Earth band of Ojibwe. Marvin, you don't think the present system of semi-sovereignty works very well. Tell me why you support a concept of expanded sovereignty.

MARVIN MANYPENNY: You're going to have to state your question again. I had a bad connection here. And I didn't hear your question fully.

RACHEL REABE: I'm asking you about your opinion on expanding sovereignty. Why is that important?

MARVIN MANYPENNY: Expanding sovereignty?

RACHEL REABE: Yes.

MARVIN MANYPENNY: I believe that-- first of all, when we talk about sovereignty, I've been listening to the two attorneys here talk about the type of sovereignty we're currently under. I believe that there's quasi sovereign status we are now under. I believe it has to come to an end in that the people have a right to self-determination.

And I believe that right to self-determination is our right to determine our own form of government or political status. Right now, under the--

RACHEL REABE: Marvin, does that mean--

MARVIN MANYPENNY: --Indian Reorganization Act System--

RACHEL REABE: Are you saying that the Indian people should succeed or fail on their own without any input or support or regulations from the United States government?

MARVIN MANYPENNY: The relationship has to be rehashed in the sense that who speaks for us politically. I believe that our political voice isn't being truly heard here because we have a quasi sovereign setup where basically the government is carrying out the policies of the federal government.

RACHEL REABE: So you want a tribal government that is more independent than what you're seeing now?

MARVIN MANYPENNY: Certainly. I think the people have a right to develop their own form of government. And I think you mentioned, we have the right to fail or succeed based upon our own visions and our own ways of setting up institutions of government that will work for us.

RACHEL REABE: Henry Buffalo, do you think that would work? Do you think if the United States just got out of the business of the Indian Nation, that that would be an improvement?

HENRY BUFFALO: I think that the relationship is very important. And that relationship sets us apart from every other minority group in the country. And I think we would want to continue to assure that the relationship that we have, which basically is the status as sovereign nations within this country, is protected in some way.

And I'm not sure if-- see, the federal government did try to get out of this at one point. And that was in the '50s. And when the federal government did, it basically terminated its relationship with a lot of Indian tribal governments in this country.

And after that happened, the tribes themselves became disorganized and assimilated into the general society around them. One of the biggest-- I guess, one of the greatest examples of how this type of termination-- the adverse impact this type of termination does have is located right next door here in the state of Wisconsin when the Menominee Tribe was terminated. And there were just a tremendous amount of problem associated as a result of that.

So I think most tribal leaders will say that they would have to go very slowly and carefully when engaging in this sort of discussion because we cannot forget our history. We cannot forget what termination had done before. And instead, we should continue to look at ways that we can strengthen our own governments from this point on.

RACHEL REABE: Mary Jo Brooks Hunter, your comment?

MARY JO BROOKS HUNTER: I agree with Henry. I think that it's very serious to consider having the US government not be a part of this situation. Part of the problem is we forget the history that this is all based upon, that the status of Indian nations predates the European arrival, but that the special, unique legal relationship that we have with the federal government is based upon the history that American Indians have here, that is with the relationship of the alliance to the colonists to allow for the land to be taken or if you have-- I don't really want to use that word.

But there was a lot that was based on it in our history, which many of us forget about. And I think there needs to be caution, with all due respect to Mr. Manypenny, that there are those who take those kind of words and take it to the nth degree.

And by that, I take Senator Gordon's bill, which is being introduced-- or which was introduced in the Senate in February, that is asking for limitations on tribal sovereignty. And we have to be cautious about what we ask for because we may get it. Congress does have plenary power and almost absolute power to make inroads on tribal sovereignty.

And without the involvement of the federal government, that can impact on some of the smaller tribes with very serious effects. And as Henry said, the Menominee are a prime example. They were terminated.

They asked to have their status as a tribe reinstated, which did occur because the counties and the states have to think about if there is no longer a federal government relationship to tribes, then that's going to put more on the state and county coffers to have an involvement with those tribes. And I don't know if that's really what everyone wants.

And as far as what's going on within our own tribes, Mr. Manypenny, I really encourage you to take part in trying to change the status within your own government. Now, I know there are many problems at white earth.

And I know they're not something that can be simply resolved by my suggesting that you work within your own government. But I think that's what we all have to do as tribal members-- that's a very important part of it-- if we want to get to a different type of status in the interests of self-determination.

MARVIN MANYPENNY: I understand what you're saying. And I think I've been misunderstood. I believe that article six of the United States' Constitution, section 2 points it out. And I think that's where we should redirect our efforts. In the sense of this plenary power, I suggest you take a look at McCulloch v. Maryland in 1819.

But the finding was that congressional authority consists only of those powers delegated to Congress in the Constitution. And for the life of me, I've been reviewing the United States Constitution.

And the Indians are mentioned three times in the US Constitution, article 1, section 2, clause 3. And that talks about representation in Congress. Article 1, section 8, clause 3, that's the Indian Commerce Clause.

I'm also talking about the 14th Amendment in section 2.

And what it says there, excluding Indians not taxed. And I believe that we have to take a darn good look at that. And are we represented in this government? Do we have representation in Congress who passes laws, who the courts hear? And what are we? A ping-pong ball within that system? Johnson versus McIntosh for the incorporation of the discovery doctrine into American law.

I think those types of things have to be looked at. I don't think that we should be accepting this plenary authority. I want to know, where did it come from? Is it just based upon might makes right? I think that's where I'm coming from. And article 6 talks about the treaties.

RACHEL REABE: Respond to this, Henry. Let's take a break here and respond to some of the things that he has said. Your comments on them?

HENRY BUFFALO: I think he's correct. There was a period in the early '80s where several people who work in this area of the law, federal Indian law, questioned the whole idea of the origin of plenary authority because I think the individual caller is right that there isn't any one place you can point at in the Constitution that says Congress will have this absolute power.

However, what has happened over time is that the relationship has been defined by the courts. And those cases that he mentions, McCulloch and Johnson, those have all been brought up from time to time to challenge Congress's authority to do what it does with respect to Indian tribes and the Indian federal relationship.

But we're in that situation, I guess, where we continue to make the arguments in the hopes that maybe someday some court will listen. And I guess, agree with our position, which is that Congress should be made to identify the source of this power.

RACHEL REABE: Thank you. Pete, we will now go to you in St. Paul for your question or comment.

MARVIN MANYPENNY: Yes. I was just wondering how your guests felt about the fact that the tribal members are getting the benefit of all the taxpayer-funded programs in the state. And they are not currently paying really any taxes. And with the casinos around, I just wonder how they felt about that and the ability to fund their own programs and social programs and such.

RACHEL REABE: At this point in the conversation, I'd like to introduce the Solicitor General for the Mille Lacs Band of Ojibwe, Jim Genia. Maybe this is a question, Jim, that would be good for you to jump in on.

What about the question of taxes? This is something that people are very unclear about. What do the people on your reservation-- which taxes do they pay?

JIM GENIA: In terms of individual Indians, there's a common misperception out there that individual Indian people don't pay any taxes. And that's very wrong. Individual Indian people pay the same federal taxes as anyone else would pay, income taxes, Social Security taxes, those sorts of things.

The one limited exception for types of taxes that individual Indian people pay is that if an individual Indian person lives on a reservation and also works on a reservation, then they are exempt from paying state income tax.

But that's the only exemption in terms of an individual Indian person. So because individual Indian people pay all the same taxes to the federal government, they receive services from the federal government. But they are taxpayers. And they ought to be receiving services.

HENRY BUFFALO: And there is a large number of Indian people. Minneapolis, for example, was the stopping point in the '50s for what they call the relocation program which took a lot of Indians off reservations and put them in urban areas.

And so the state of Minnesota itself outside of the reservations does have a large Indian population. And all of those people who are working in the urban areas or off reservation, all are subject to paying the state income taxes. And that's money that goes into funding the programs that the state does fund on Indian reservations.

RACHEL REABE: Mary Jo Brooks Hunter, I know we're out of time with you. We want to thank you for being part of our show this afternoon. Thanks for coming in.

MARY JO BROOKS HUNTER: You're welcome.

RACHEL REABE: We are going to continue this discussion on sovereignty from the Mille Lacs Indian Museum with Minneapolis Attorney Henry Buffalo and also the Solicitor General for the Mille Lacs Band of Ojibwe, Jim Genia.

You heard early in this hour Marvin Manypenny talk about his ideas of expanding sovereignty. We now have Bill Lawrence on the phone. He's a member of the Red Lake Band of Ojibwe Indians. He thinks his people would be better off without tribal sovereignty. Lawrence, who runs two Native American newspapers out of Bemidji, is on the phone with us. Mr. Lawrence, why doesn't sovereignty work?

BILL LAWRENCE: Because sovereignty gives the tribal governments too much power. It recognizes tribal governments and the Indian people. I have come to the conclusion that sovereign immunity is based on injustice and bad policy. It is not in the Constitution. It is not in any treaty. It is not in any law. It is merely the figment of imagination of a few judges and afflicted politicians with a noble, savage mentality.

Tribal sovereign immunity is killing Indian people, both literally and figuratively. Just look at the reservation homicide and suicide rates if you don't believe me. Tribal sovereign immunity is like giving tribal leaders a license to steal from and abuse Indian people. It needs to be changed.

RACHEL REABE: So your real concern is with tribal government? You say they have too much power. Would you also agree there's too much secrecy involved with tribal government?

BILL LAWRENCE: Well, obviously, they don't have to be accountable to us. We cannot obtain audited financial statements from them. They can close any meeting to us that they feel like. They don't have to extend any rights to us under the Bill of Rights. There's no separation of powers. There's no judicial review. There's just no separation of anything. They just have absolute control.

If you can imagine one body of government in this state having the body to make laws, enforce the law, and to judge the law, then that's what we got on reservations. That's what you'd have in Minnesota.

RACHEL REABE: So what you're saying, there is no guarantee. The things that we enjoy, some of the freedoms under the US constitution, the freedom of speech, freedom of press, guarantee of civil rights, you're saying that that doesn't always happen on a reservation because of tribal government?

BILL LAWRENCE: It generally doesn't happen. We're in court right now in the state courts in Mille Lacs County because one of our reporters was arrested for attending a meeting at a casino at Mille Lacs and charged with trespass. And--

RACHEL REABE: Let's turn that over to Jim Genia. Does that happen? Do you have the right to say, no, you cannot stay here?

JIM GENIA: The incidence that Mr. Lawrence was referring to was a meeting of the Minnesota Chippewa Tribe, not of the tribal government here at Mille Lacs. It was held at the hotel at the Grand Casino, Mille Lacs.

The leaders of that meeting asked that it be closed and that all people who weren't members of the board of the Minnesota Chippewa Tribe executive committee leave the meeting. A reporter from Mr. Lawrence's newspaper refused to leave after being asked. And he was taken into custody for trespass because he refused to leave when asked to leave.

RACHEL REABE: And so you feel were within your rights to close the meeting?

JIM GENIA: It wasn't Mille Lacs that closed the meeting. It was a meeting of the Minnesota Chippewa Tribe. And the governing body for the Minnesota Chippewa Tribe decided that they needed to go into executive session. And they closed the meeting and asked everyone to leave. A reporter refused to leave after being asked. And so he was arrested for trespass. But I think--

BILL LAWRENCE: Jim Genia, there was never any executive session at that meeting. And he was arrested an hour and a half before the meeting even started.

JIM GENIA: --very vehemently. And his beliefs very vehemently is that tribal governments are governments just as any other and have democratic processes and have elections to elect their leaders. And so while an individual Indian person may have the beliefs that Mr. Lawrence does, that all works itself out through a democratic process. And people get to vote and elect their leadership. And that's how it happens.

And so by choices here at Mille Lacs and at other reservations through that democratic process, people voting, they've made the decisions for the types of governments that they have and the leaders that they have.

RACHEL REABE: Mr. Lawrence, your response to that.

BILL LAWRENCE: Well, these elections very seldom are fair. When the tribal government controls the election process, they control the courts. Virtually, it's impossible to contest an election and win it against a tribal government. We have Mille Lacs members complaining to us all the time about the lack of rights there. We've written stories about it.

We would ask Mr. Genia, who is a member of the Wisconsin Band, and also Mr. Buffalo, who is a member of the Wisconsin Band, as is Mary Jo Hunter-- I should welcome them as immigrants to Minnesota and ask why Mille Lacs doesn't have more tribal members running their affairs. Either non-Indians and other Indians from our state are running the affairs of Mille Lacs.

RACHEL REABE: Mr. Lawrence, let me ask you this question. How many Indians agree with you? Are you the silent majority? Do you represent the silent majority, or is this an opinion that more people are coming around to? How would you answer that?

BILL LAWRENCE: Well, I would say more and more people are beginning to speak out. Before, people have been afraid because of the retaliation from tribal governments. They control things on the reservation from birth to death.

And because of this policy of governance contracts and self-determination, they have taken over virtually everything. And I can tell you stories of people who run off Mille Lacs. I can tell you people who are fired from these reservations and denied jobs, denied housing, denied all kinds of services and opportunities. And they've just been afraid to speak out.

Today, I'm getting calls, faxes, email, letters every day from Indian people all around the country with the same problems. And the system's got to change. And it is changing already. And there's court decisions right now that have come out limiting tribal government. There were seven cases before the US Supreme Court involving Minnesota cases that I think are going to make some more changes. But--

RACHEL REABE: Jim Genia, let's give you a chance to respond here. You again are the solicitor general, the attorney general of the Mille Lacs Band of Ojibwe, this reservation. Is this a police state?

JIM GENIA: Most definitely not. Obviously, Mr. Lawrence holds his beliefs, as I said, very strongly. But everything gets sorted out through the democratic process. And by a democratic process, it's the will of the people that ultimately governs. And although Mr. Lawrence has his viewpoints, the majority of people have different viewpoints as expressed through the democratic process, through elections.

It's hard to address specifics, allegations because that's all they are, allegations. And we don't have specific details about types of things that Mr. Lawrence says is occurring. But I would like to address a couple of misconceptions that he stated just very quickly.

First off, there are separation of powers forms of government for tribes, including at Mille Lacs. Mille Lacs has had a separation of powers form of government since the early 1980s, separate legislative, executive, and judicial branches.

RACHEL REABE: So providing that checks and balances?

JIM GENIA: Exactly. We also have a tribal court that has the authority for judicial review of decisions made by the legislative and executive branches. So there are separation of powers forms of government.

It's up to each individual tribal government to make the decision on what form of government is the best for them. But at Mille Lacs, as I said, in the early 1980s, we went to a separation of powers form of government. And it's worked very well.

RACHEL REABE: Although, Henry, we don't have to look very far back in history to remember the corruption charges on the White Earth Reservation, the power takeovers on the Red Lake Reservation. Certainly, these are things that have happened, major problems with tribal governments. Would you respond to Mr. Lawrence?

HENRY BUFFALO: Well, those are two out of the 11 that you're talking about with respect to just Minnesota. I think his views are just extreme views. And I doubt that there are a lot of people that would support it.

I believe that tribal government continues to evolve. And like any government, it's going to go through periods of pain and sorrow that will also include periods of joy and happiness. And it just seems to me that tribes are working through those right now.

They're trying to create these institutions, even though, yes, there are some constitutional problems with respect to attaining true separation of powers. I think tribal leadership on most reservations is working very hard in good faith to create the institutions to have the processes that are in place work better, more efficiently, and more fair. But I certainly do think that those views that he has are just very, very extreme and off the record.

JIM GENIA: One of the biggest barriers to the development of tribal governments has been the lack of resources. Indian reservations in the United States have historically been the poorest areas in the United States that the Mille Lacs Reservation, as recently as 1990, we had a 46% unemployment rate. With that kind of lack of economic activity, there weren't a lot of resources to develop tribal government, develop tribal institutions.

When you go from having a reservation business committee, which is one small committee that has all the legislative, executive, and judicial power, to separating that out and creating three separate institutions, you're also going to require some money to fund those institutions and the things that they do in terms of development, for example, of tribal law.

Mille Lacs, in terms of reservations in the United states, has a very well-developed set of tribal laws. We have our band statutes that are actually published by West Publishing, the largest legal publisher in the United states.

RACHEL REABE: And it's easier to build the infrastructure with the money.

JIM GENIA: With the money. And tribes haven't had the resources.

HENRY BUFFALO: I'll give you one example, too, of-- the Ho-Chunk Tribe, Mary Jo Brooks's tribe, in Wisconsin adopted a new constitution where they separated into four branches of government. And I was involved representing the president of that tribe about two years ago, involving a struggle between the executive branch, which he was a member of, and the legislative branch.

And so even though you go forward and make those changes and create those separation of powers, there's still going to be that period of time in implementing those changes that will result in conflicts. And hopefully you can resolve those conflicts within the methods that were created also by the constitution.

RACHEL REABE: We have John from Minnetonka on the phone. Good afternoon, sir.

JOHN: Good afternoon. I'm enjoying the conversation. But I did have a point to make that I thought I'd like to get some feedback on it. It appears to me that you really don't have any sovereignty at all. If you're paying taxes to a foreign government, you don't have any sovereignty from that government.

If the courts you hope will help you are federal courts, you're not sovereign from those federal courts. I think you should be. Looking back at the history that I didn't learn in grammar school, you were never really given sovereignty. It was never recognized by the federal government or Congress. And our Senate never recognized it.

They recognized a limited sovereignty that they could control or manipulate. If an Indian was in the Indian territories, moved over into the white man's land or the free white man's land and committed some crime, they were punished there. Vice versa was not true, was not permitted.

To me, that's not sovereignty, guys, I wish you well. And I wish you would get to the sovereignty issue. It's really your problem if you're sovereign. What happens on your reservations is not the federal government's business. If you're not--

RACHEL REABE: Jim Genia, let's give you a chance to respond to that.

JIM GENIA: Well, the sovereignty of tribes is real. It's recognized in the US constitution, as has been talked about earlier this morning. And in fact, the treaty-making process, the US government entered into over 350 treaties with various Indian tribes, including Mille Lacs.

And the fact that the way the federal government chose to memorialize its agreements with tribes through the treaty process is a recognition of tribal sovereignty. That's the same way that the US government makes agreements with Mexico or Canada or other foreign nations.

A treaty at its simplest form is a contract. But it's a special type of contract. It's a contract between sovereign governments. So the fact that government used the treaty-making process was a recognition of that sovereignty.

In terms of how that sovereignty interrelates with the federal government's sovereignty and the state's sovereignty, unfortunately, those questions have been resolved by the federal government itself, particularly through the federal court system.

And what the federal courts have said is that tribes' sovereigns lie somewhere between the federal government and the state government. So they have more sovereign powers within their territories than states do within Indian reservations but less than the federal government.

The federal government, as the one who makes the rules, has the ultimate sovereignty. And they've decided that they can impose their laws on Indian tribes if they want, including in the area of taxation. And that's why individual Indian people are subject to federal taxation.

HENRY BUFFALO: But I would like to make sure that there is an understanding that individual Indian people do not have sovereignty. And so he's got a-- there's a misconception there that he has.

RACHEL REABE: The Indian Nation has the sovereignty.

HENRY BUFFALO: It's the nation that has it and not the individual Indian person. And so when we talk about the people who are paying taxes, it is those individuals who are living off state income taxes, who are living and working off the reservation.

RACHEL REABE: My guests here today on the shore of Mille Lacs Lake, Henry Buffalo and Jim Genia. I'm Rachel Reabe. This is a special Mainstreet program on tribal sovereignty. There are Indian reservations scattered across Minnesota. So those listening to us today probably live within relatively short distance from an Indian reservation.

When they drive in, as you would come up to Mille Lacs today, there would be no huge division on Highway 169. You would see a sign that you are entering onto the Indian reservation. Many of us have so many questions about, what does that mean? How does it actually play out?

I was in the state of Minnesota. Now I'm driving through a sovereign nation. What if I get stopped for speeding? What if I get stopped for DWI? Those sorts of things. Let's talk specifically about when non-Indians come on to the reservation, what applies to them?

JIM GENIA: The first big area is in terms of criminal law. Do tribal criminal laws apply to non-Indians who come within the reservation? And the answer-- and again, it comes from a decision of the US Supreme Court-- is no, that tribes cannot apply their criminal laws to non-Indians. Tribes can apply their criminal laws to all Indians within the reservation, including tribal members and nontribal members who are Indian, members of other tribes.

RACHEL REABE: Give me an example, Jim, of how a law might be different for you or for me committed here on the reservation.

JIM GENIA: Basically, many of the tribal laws that apply to Indian people are similar to the types of laws that you'd see outside of reservations in the state of Minnesota. So we have DWI laws, laws against assault, speeding, those sorts of things.

So the type of law that applies is very similar. But who it applies to is very different, depending upon whether it's an Indian or a non-Indian. I'm a member of a tribe in Michigan, a little Traverse Band of Ottawa in Michigan. We ended up in St. Paul when I started fifth grade.

And because I'm an Indian person, although I'm not a Mille Lacs member, the criminal laws of the Mille Lacs Band, such as laws against DWI, would apply to me. Yourself, being a non-Indian, if you were on the reservation and violated a criminal law such as assaulted somebody or were driving while intoxicated, the tribe could not apply its criminal laws against you. Only the state has jurisdiction.

This dichotomy is from a 1953 federal law commonly referred to as Public Law 280. And it was a part of the termination policies which Mr. Buffalo spoke about a little while ago, where the federal government had an official policy for a while of terminating tribes, of doing away with them and trying to force them to assimilate.

RACHEL REABE: But the Mille Lacs Tribal Police Force, which is funded by the reservation, run by the reservation, they do have the power to stop me and enforce the laws of the state of Minnesota, do they not?

JIM GENIA: It gets even more complicated. As you said, the general rule is that tribes don't have criminal jurisdiction over non-Indians within the reservation. At Mille Lacs, pursuant to a 1991 state law that we were successful in getting past, our tribal police department, as long as we meet the requirements of any other police agency in the state, any sheriff's department or city police department, as long as we meet those requirements, our tribal police department are authorized to enforce state law against all Indians and non-Indians.

So if we use Mille Lacs as an example, again, if a non-Indian, such as yourself, were driving within the reservation and were driving while intoxicated, our tribal police could stop you and arrest you and issue a citation. But that would be the state court, not the tribal court.

RACHEL REABE: And you push that change because of the huge influx of people coming here for the casino?

JIM GENIA: The predominant factor was we've got a major state highway running right through the reservation, a lot of non-Indians traveling. And we were looking at developing the casino. And so we were hoping that there would be even more non-Indians coming to the area.

And not having criminal jurisdiction over crimes committed by non-Indians when they're within the reservation is a very difficult situation in terms of providing law enforcement for the community here. So we were successful in getting that law passed to cover that gap.

RACHEL REABE: Leif Enger, we have a question in the audience here at the Mille Lacs Indian Museum?

LEIF ENGER: Yes, Rachel. The Mille Lacs Messenger is the local newspaper. It has the distinction of publishing probably more treaty rights articles, editorials, letters to the editor than any other paper around, probably even a few more than Minnesota Public Radio. But a reporter, Brett Larson, is here. And he's got a question.

BRETT LARSON: There's a sticky issue that we've been dealing with in the newspaper and that local people are concerned about. It has to do with the original boundaries of the Mille Lacs Reservation.

The three townships on the South Shore of Mille Lacs were included in the original boundaries. Apparently, over the years, the federal government has recognized those boundaries while the state of Minnesota hasn't.

And currently the federal government in implementing one of the EPA's programs has chosen not to give the state power to implement the program in those townships. So a lot of people in those townships are concerned that, well, to put it bluntly, that someday they're going to be living on the Mille Lacs Reservation.

So my concern has a few parts-- or my question has a few parts. Are their fears well founded? And then do you see this issue being resolved outside of federal courtroom? And do you see it being resolved any time in the near future, or is the Mille Lacs Band in the state of Minnesota content to live with things the way they are for the foreseeable future?

RACHEL REABE: Jim Genia, why don't you respond?

JIM GENIA: Although Mr. Larson talked about that there are differences between some non-Indians who live in the area of Mille Lacs Lake, our belief here in the reservation is that those people within the three townships do live within the Mille Lacs Reservation.

The federal government has recognized those boundaries. Have to remember that the treaty that created the Mille Lacs Reservation, the 1855 treaty, was a treaty between the band and the United States government. So the parties that actually entered into that treaty are in agreement on the boundaries of the reservation. Some non-Indians who live within the reservation may not like that. But that's the legal facts that are in place.

In terms of civil sorts of laws, such as environmental regulation, people who enter into consensual relationships with reservations are subject to civil laws of a tribe, such as a civil law that prohibits someone littering.

Civil laws are treated differently than criminal laws under Public Law 280 and the grant of criminal jurisdiction that it gave to states. And so if you've got a law that is civil in nature, one that somebody is not subject to jail time, too, but they may be subject to a civil fine for, those laws do apply to non-Indians who have entered into consensual relationships.

RACHEL REABE: Jim, how about the tribe-- and we're seeing this here in Mille Lacs-- buying up land, buying up some resorts, buying up some of the land on the shores of Mille Lacs Lake? By virtue of the fact that you've bought it, does it become tribal land, or is that land the tribe owns that will forever be off the reservation?

JIM GENIA: In terms of reservation land, when most people think of reservations, what they're actually thinking of is a type of land called trust land. And it's called trust land because it's actually owned by the United States government but held in trust for a particular Indian tribe or a particular Indian person.

The reason why it's held in trust goes back to some of the paternalistic ideas that the government had and the Bureau of Indian Affairs in particular has had about Indian people and their sophistication or lack of sophistication.

And so the land that the band is buying, a large part of it, it actually owns itself in fee. It hasn't been put in trust. So if it's owned by the band in fee, it's still subject to property taxation. And we're paying a lot of property taxes on that land because it hasn't been put in trust. But that's a decision that the tribal government needs to make and what it wants to do with that land.

There is an administrative process for putting it into trust. But once you put it into trust, the government, the US government actually owns it. And there are some restrictions on what you can do and if you can sell that land in the future. So it's a mixed bag.

RACHEL REABE: We have Shirley from the Fond du Lac Reservation waiting patiently on the phone. Good afternoon.

DALE: Hi. This is Dale. Shirley was sitting here. One thing I wanted to point out real quick is, Jim Genia, if you were to speak out against Marge Anderson, you wouldn't be able to vote or have any civil rights on the reservation. If you uncovered wrongdoing on the Mille Lacs Reservation and you tried to speak about it, you would be a barred from the reservation, probably charged with trespassing, kicked off the reservation. Another point I wanted--

HENRY BUFFALO: Let's give him a chance to respond to that. Jim, can you speak out.

JIM GENIA: Yes, I can speak out and have about things that I agree and don't agree with, just as any other person on the reservation has that right. I would like to say we talked about that the Mille Lacs Band has a very highly developed set of laws. We also have a civil rights code that the band itself has adopted that protects free speech and those sorts of rights.

RACHEL REABE: Henry, let's expand that conversation and talk about other tribes. Do you feel free to speak out? Do you feel that for the most part-- you talked about the two out of the 11 tribes in Minnesota. Do you think for the most part people can address their tribal government, they can criticize their tribal government without fear?

HENRY BUFFALO: Oh, absolutely. I think that, again, there is this extreme view held by certain people that there's no opportunity to do this. My experience has been, however, not only here locally but nationally, that people do have the right to do it. They do it.

And I think that's how tribal government gets changed, is by people speaking out, by identifying the problems that they see with the way government's operated or the way programs are operated. And in many cases, a lot of these people end up deciding that they are going to impact that system. And the way they impact that system is they run for office. They get elected. And then they have their say through that process,

JIM GENIA: I was just going to mention that here at Mille Lacs, we're going through an election cycle right now. And we've got all sorts of candidates representing all sorts of views. And that gets sorted out through the democratic electoral process.

RACHEL REABE: So it's not a perfect system. But there would probably be few people listening that could say that the United States government is a perfect system either.

JIM GENIA: Exactly. You hear the Montana Freemen, or people down in Oklahoma, or down in the Southern United States who don't like the government. I think you'll always find people who disagree with any idea.

And for some reason, governments seemed to bring out more detractors than just a lot of other things. But that all sorts it out through a democratic process. People have their input. And if a majority of people agree with them, then that viewpoint will get represented in the government.

RACHEL REABE: We're out of time in this discussion on tribal sovereignty. Henry Buffalo, Jim Genia, thank you for being with us today. This special Mainstreet Radio broadcast is a production of Minnesota Public Radio. Our engineers today on location are Rick Hazinski and Cliff Bentley. Randy Johnson is in St. Paul.

Our producer is Sarah Meyer, executive producers, Mel Sommer and Kate Smith, field producer, Leif Enger. We'd like to thank Brenda Boyd and Betty Keg with the Mille Lacs oral history project and our host at the Mille Lacs Indian Museum, Joyce Lynn Shingobee Wadel.

We invite you to visit the Mainstreet website. Go to www.mpr.org. You'll be able to hear this program as well as our entire series of reports and commentaries on treaty rights and tribal sovereignty. The address, again, for the Mainstreet website is www.mpr.org.

MPR's Mainstreet Radio coverage of rural issues is supported by the Blandin Foundation, committed to strengthening communities through grant-making, leadership training, and convening. Minnesota Public Radio's Mainstreet Radio team is Leif Enger, Dan Gunderson, Mark Style, Catherine Winter, and myself, Rachel Reabe.

LORNA BENSON: I'm Lorna Benson. AIDS is the leading cause of death among Ugandan adults. On the next All Things Considered, we'll meet a choir made up of their orphaned children. It's All Things Considered weekdays at three on Minnesota Public Radio, KNOW FM 91.1.

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