Attorney challenges legality of new White Earth constitution

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

Frank Bibeau, a tribal attorney and enrolled member of White Earth, has begun the process of filing an appeal to overturn the results of 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 been an outspoken opponent of the new constitution since before the election, said that although he 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, and an attorney for White Earth's election board will respond. Blaeser will then rule on whether there is enough evidence for a hearing.

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. Because there was no process to follow, Bibeau claims the move cannot be legitimate.

"There's no law that they did this under or anything to bind it," Bibeau said. "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 said 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."

Also, voter turnout was not at 30 percent, he said, a requirement by the Minnesota Chippewa Tribe 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," Bibeau said. "3,500 divided by 17,000 equals about 20 percent participation."

Bibeau also said that 30 percent is supposed to be taken from a list of eligible voters from White Earth, but he 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 be set up in a referendum-style vote, according to Bibeau. It's too complex, he said, to simply require a "yes" or "no" vote.

Changes in the new constitution include determining enrollment by family lineage rather than requiring at least 25 percent native blood, and replacing the current Tribal Council with a three-branch system similar to the federal system.

"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, Bibeau said. 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 said that although some of Bibeau's claims probably have some merit, 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," Plumer said. "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 regard to whether White Earth had the right to adopt its own constitution, Plumer said the fact that nothing is 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," Plumer said.

View from the outside

John Borrows, University of Minnesota professor of indigenous law, 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, adding that 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 said that because there are no clear-cut laws on such issues, 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 Chairwoman 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 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," Vizenor said. "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 have a feeling as to which way the MCT leaders are leaning. MCT Executive Director Gary Frazer declined to 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 try to obtain federal recognition through the Bureau of Indian Affairs.

Borrows said that although that wouldn't be a "sure thing," 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 that its large population also could go against it in terms of federal resources.

But even if it came down to independent sovereignty, Plumer said the transformation process from the MCT to White Earth's new constitution will move so slowly that it will give leaders plenty of time to lay the proper groundwork.

"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."