White Earth prepares criminal code to replace state law

White Earth map
The White Earth Reservation covers parts of Clearwater, Mahnomen and Becker counties in northwest Minnesota.
MPR graphic

As you drive across the White Earth reservation, the highways wind around picturesque lakes and through rugged forests, crossing three counties. That means three sheriff's departments are responsible for law enforcement on the northwestern Minnesota reservation.

Over the years, the agreement has caused tension between county and tribal governments.

"It's time for us to move in a new direction and to exert greater self-determination."

White Earth Tribal Chairwoman Erma Vizenor says relying on counties for law enforcement has compromised public safety on the reservation.

"That has presented both inadequate law enforcement and bad law enforcement as far as we're concerned," said Vizenor. "It all depends on the political whims of a sheriff or county commissioners. Our people deserve better than that."

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Local sheriffs who were contacted, say they aren't prepared to comment on the issue. In the past, local officials have defended themselves against charges of slow response times and racial bias.

Now, White Earth wants the state of Minnesota to give up jurisdiction over tribal members, who would face tribal charges in a tribal court. The most serious crimes, like murder, would be prosecuted in federal court.

At issue is a 1953 Congressional Act known as Public Law 280 which gives states legal jurisdiction over tribal members. Minnesota is one of six states where the federal government mandated compliance with Public Law 280 on all reservations except Red Lake. Nationwide an estimated 70% of American Indian tribal members are under Public Law 280.

White Earth wants the federal government to negate the authority of Public Law 280 on the northern Minnesota reservation. The legal term is retrocession. The only way that can happen is if Minnesota Gov. Tim Pawlenty requests the federal government allow retrocession at White Earth.

The governor's office did not respond to questions seeking his position on the change. Department of Public Safety Commissioner Michael Campion declined comment.

Tribal Chairwoman Erma Vizenor says she has told state officials of the tribe's plan, but there have been no detailed discussions.

Erma Vizenor
White Earth Tribal Chair Erma Vizenor says tribal self-determination is the ultimate goal, and a tribal criminal code is a critical step.
White Earth Tribe

When Public Law 280 was put into place in 1953, it imposed state law on tribal members. Federal funds for tribal law enforcement were limited, and so most tribes could not afford a police force. In most cases, the local sheriff took over law enforcement on the reservation.

White Earth now has a police force and a tribal court. Officials say the next step is reclaiming judicial authority over tribal members.

The ultimate goal is to convince the state and federal governments to undo the congressional act.

White Earth attorney Joe Plumer says the tribe never gave up its right to judicial independence. As a result, he says the tribe will take the first step without waiting for federal approval.

"The council plans on enacting a tribal criminal code that's been in development for two years now," said Plumer. "Once that's done the officers will enforce it and individuals will be prosecuted through the tribal court."

That move would create the possibility that tribal members could be charged under both tribal and state law for the same crime, until retrocession of Public Law 280 is accomplished. Local residents and some local officials are worried the tribe plans to enforce its law on all local residents.

Tribal officials say the new criminal code will apply only to tribal members. Non-tribal residents will still be charged under state law.

However, Tribal Attorney Joe Plumer says tribal and state criminal codes will be different.

That worries Becker County Administrator Brian Berg who acknowledges that Becker County will save money if the prosecution of tribal members is shifted to tribal court. But he questions the fairness of two people facing different penalties for the same crime.

"One may be an enrolled member of the tribe and the other may be a non-tribal member, and to have those go separate directions for the purpose of criminal adjudication, they may be treated differently," said Berg. "That sounds a little unfair and I think our county board would have a problem with that."

White Earth currently has law enforcement agreements with surrounding counties. Tribal police officers respond to many of the calls on the reservation. They now refer any criminal charges to county prosecutors. A proposed change would send those cases to tribal court.
MPR file photo

Berg says county officials need to learn more about White Earth's plan before deciding if it's something they would support. Counties have no say in whether tribal law replaces state law but county officials could lobby the governor to support or oppose the plan.

White Earth Tribal Chairwoman Erma Vizenor says the tribe does not intend to damage relationships with local or state governments over the issue.

"We need to have the support of our neighbors, the counties and reassure them that this is good for all of us," Vizenor said. "We need to have the support of the governor, the state. And all of those political entities are challenges for us."

Across the country, relatively few tribes have been successful in exchanging state law for tribal law.

UCLA Law Professor Carole Goldberg recently completed a nationwide study of Public Law 280. She found public safety often improves when tribes enforce their own laws.

Goldberg says when tribes take over law enforcement, state and local governments spend less money on police and courts. But they may also get fewer federal dollars as a result.

Goldberg also points out that many local governments are uncomfortable when Indian tribes expand their sovereign powers. "There are numerous political obstacles that tribes encounter," said Goldberg. "Alliances can be built and political momentum can be developed. Sometimes it's the state and local governments reaching the conclusion this is a financial burden they would rather not assume. The politics are very, very local." Politics may well determine the success of White Earth's ultimate goal of eliminating state jurisdiction over tribal members.

White Earth Tribal Chairwoman Erma Vizenor says tribal self-determination is the ultimate goal, and a tribal criminal code is a critical step.

"It's time for us to move in a new direction and to exert greater self-determination and really protect our membership as well as our future generations," said Vizenor.

Tribal officials plan to have a series of discussions with state and local officials. Vizenor says tribal members will have a chance to vote on the question of replacing state law with tribal law.

And White Earth is in the midst of a constitutional reform that will provide separation of powers; something Vizenor says is critical to ensuring the judicial system is not influenced by politics.

But her ultimate goal is to end state jurisdiction over tribal members. Vizenor expects the entire process to take about five years.