UW law professor: Wisconsin must recognize full sovereignty of Indian tribes

2014-02-16T06:00:00Z UW law professor: Wisconsin must recognize full sovereignty of Indian tribesJACK CRAVER | The Capital Times | jcraver@madison.com madison.com

Richard Monette, a University of Wisconsin Law School professor, is one of the top experts on tribal law and the legal relationship between Native American tribes and the federal government.

Monette, 54, is a former chairman of the Turtle Mountain Band of Chippewa Indians, a 30,000-strong tribe based on a reservation surrounded by the state of North Dakota.

He formerly served as director of the Office of Congressional and Legislative Affairs for the Bureau of Indian Affairs during Bill Clinton's presidency. In that capacity, he helped redesign how federal dollars are disbursed to tribes. He is also the former director of the National Native American Bar Association and has worked for two decades in Madison as a legal consultant to tribes drafting constitutions and other legal codes.

Last year, Monette discussed his views on the controversy over the Menominee Indian Tribe’s proposal to build a casino in Kenosha, opposed by the Forest County Potawatomi which is concerned that such a casino would draw away customers from its casino in Milwaukee.

Last week, Monette discussed the casino debate as well as some of the long-term legal issues that underpin the current tension between some of tribes, the state and the federal government.

The Capital Times: So how did the Potawatomi end up being the only tribe with a casino in the biggest metropolitan area in the state?

Monette: There was land (in Milwaukee) for an Indian school by an agreement because the Indian kids were dropping out of school at a remarkably high rate.

So the federal Bureau of Indian Affairs takes land into trust. And the bureau’s position is that … only one tribe can own it. So they got together and decided which one. They probably decided, let’s make it one of the tribes that has a claim to the area, so the Potawatomi, the Menominee or the Ho-Chunk. And they probably said let’s take the smallest and the poorest one. And frankly, Potawatomi fit that bill.

What kind of annual payments do the Potawatomi tribe members get from casino revenue?

They don’t like to tell and I don’t like to ask. So I don’t know exactly what it is, but the last time I did ask, I think 8 to 10 years ago, the answer I got was that each member was getting $90,000 a year, but it fluctuates (based on casino revenue).

Wow.

OK, but that compares with Shakopee outside of Minneapolis, where they each get about $800,000 a year. Or there are a couple of tribes in California, they clear well over $1 million a year. Every man, woman and child.

But does that mean there is virtually no poverty left among the Potawatomi?

I think that’s fair to say, absolutely. No present poverty. Now are there real, quantifiable vestiges of social ills from the poverty that existed for decades? There are. That stuff doesn’t go away in a generation.

How do Wisconsin tribes compare economically to tribes nationally?

Well, there’s no tribe in Wisconsin as poor as Pine Ridge or Rosebud in South Dakota. There’s no tribe as rich here as San Manuel in California or the Seminole in Florida. But there are some relatively wealthy tribes (in Wisconsin) and Potawatomi certainly leads the pack. Is it in the top ten or fifteen in the country? Yeah.

And what about the Menominee? How is that tribe doing?

The Menominee Tribe is one of the more impoverished tribes in the state and the country. Frankly, they have their timber but they don’t have much more than that.

In fact, the federal government (at one point) terminated its relationship with the Menominee in 1953. Congress gave the authority to the Department of Interior to determine if tribes were capable of self-sustaining. And Menominee was determined to be one of them because they had their lumber mill that was making good money.

So they said, the Menominee are doing OK, so we’re not going to recognize their tribe anymore?

Yes. The (government said) they can be fully assimilated into the state of Wisconsin. They can be productive citizens and lose their tribalism.

But doesn’t that go counter to the idea of tribes as sovereign nations?

(The United States) had 200 years of recognizing them as sovereign nations, ironically for the purpose of them conveying their land to the U.S. And that was sovereign to sovereign, too. The U.S. recognized their sovereignty for the purpose of that, for them to transfer their property to the U.S.

And then since that, (the country) spent the subsequent 150 years whittling away at (their sovereignty). This is a constant exercise in assimilation and acculturation that the tribes fight daily.

But then a few decades later the federal government stopped that process of trying to extinguish tribes?

First, they stopped withdrawing recognition because it was clear the experiments were not working. I mean, the Klamath tribe (in Oregon) got run out as quickly as it possibly could and next thing you know tribal members were in downtown Portland sleeping in the gutters.

Was this an issue that surrounded you growing up on a reservation?

Absolutely. Both my grandpas were on the tribal council, my dad was elected chair of the tribal council. My grandpa was one of the people who went to Washington D.C. in the 1950s to fight this.

After Menominee … I got confirmation of this a couple years ago, we concluded that my tribe was next for termination. My tribe was very poor, but they had some other excuses. The excuse for my tribe was over half of the members were “half-breeds,” like me. So these are mixed-blood Indians who (they said) were hanging around the reservation when they could be going out to the cities and getting work.

What do you think about this ongoing debate over school mascots based on Native Americans?

It epitomizes the misunderstandings between the outside cultures and ours.

I feel bad that the children of Wisconsin grow up thinking this is OK. Do you have to be particularly liberal or enlightened to understand you have a mascot that is based on a people and their style of dress and presumably their perceived behavior?

I mean, if Notre Dame wants to have a drunken Irishman in a brawling stance, that’s up to them. It’s a school that was founded by and largely populated by Irish Catholics, so if they want to put that caricature of themselves out there, who am I to argue with that? And my high school mascot was the Braves. But if an Indian school wants to do a fighting Irish guy, I’m guessing that’s not okay.

What is the biggest issue confronting state-tribal relations?

Our state has the best and worst examples. The federal law, passed in 1953, gave the state of Wisconsin a good deal of jurisdiction over Indian Country that most states don’t have. Ironically it gave it to states that are situated along international waters – California, Washington, Oregon, Alaska, Minnesota, Wisconsin. It had to do with tribes asserting their jurisdiction as they were doing fishing and maybe even oil exploration off-shore.

That law gave the states criminal and civil jurisdiction over tribes, but not regulatory (including taxes). That means they can go into a reservation and arrest somebody and that is insulting to their sovereignty.

But the fact of the matter is half the time (the police) don’t show up. There’s a crime committed on the reservation … they don’t show up.

I blame (the state), but there are reasons for some of this contention. This was the classic unfunded mandate (from Congress). In Wisconsin they have jurisdiction over these reservations, these are big chunks of land, some impoverished communities where social ills are ripe. So how does Wisconsin deal with it? In other communities they have taxing mechanisms.

But tribes have their own police departments?

Increasingly they do. So what happens if they both want to enforce? Or if they both get there? Who controls the evidence? Just real practical things. We have nothing written on how to do that.

But there’s a process for the state to turn (these powers) back to the tribes. And it’s time to do it. This is the cornerstone of exercising your sovereignty.

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(4) Comments

  1. nolongerliveinwi
    Report Abuse
    nolongerliveinwi - February 17, 2014 1:25 pm
    I will defure all comments to to fellow grandson of John Malzin to Tom Maulson, John Malson.
  2. happydays
    Report Abuse
    happydays - February 16, 2014 4:06 pm
    $90,000/yr per member - they are better off that probably 90% of the population. I hope there is no government money headed that way
  3. bosco
    Report Abuse
    bosco - February 16, 2014 9:04 am
    The ability of tribes to buy land and turn it into sovereign land needs to be stopped.
  4. WeNeedaDream
    Report Abuse
    WeNeedaDream - February 16, 2014 7:45 am
    I cringe at the complexity of these issues...
    and the consequences of casinos on culture.
    Lots of karma playing out here.
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