SOLICITOR’S OPINION IRA INTERPRETATION

Summarized by Vivian LaMoore, Inaajimowin Editor

EDITOR'S NOTE: These are the opinions and views of the Mille Lacs Band Delegate Committee only and do not represent the views of the Mille Lacs Band of Ojibwe. The report may not be cited as a statement of the Mille Lacs Band of Ojibwe's position or viewpoint on any matter discussed within the report or summary.

The Committee believes that a legal Memorandum to the Secretary of Interior dated November 24, 1934, and au thored by Solicitor Nathan R. Margold, the Solicitor for the United States Department of Interior, might have provided the legal basis for the Indian Service’s action to organize the Chippewa Indians of the Mississippi, (except for Red Lake and Lake Superior) residing at Boise Forte, Grand Portage, Fond Du Lac, Leech Lake, Mille Lacs, and White Earth under the roof of an organization to be known as the Minnesota Chippewa Tribe.

His opinion was requested on the question of whether, under the provisions of the Wheeler-Howard Act of 1934, devisees other than heirs at law under wills of restricted Indians must be confined to the Indians of the same reservation without regard to original tribal blood or affiliation.

Because a federal agency has broad authority to make rules and regulations over the subject matter, in this case, Indian people, Nathan R. Margold issued a legal opinion designated as “M-27796” on November 7, 1934. The Memorandum purported to answer the question of “how Indian tribes should be organized” under Section 16 of the Wheeler-Howard Act.

Margold begins his Memorandum by stating that it is “administrative;” in other words, not “legal.” His choice of the word “administrative” opened the door to allow the Indian Service to use its general authority to admin ister the Indians and do what it wanted to do with the Chippewa Indians in Minnesota for the convenience of the U.S. government.

The legal Memorandum states that Margold was interpreting IRA Section 16, but he did not discuss the words in Section 16. Did the Indian Service have the legal authority under the IRA to do what it did in Minnesota? The Committee believes this authority does not in clude changing the law and believes this legal issue re quires further review.

While the Memorandum discussed matters unrelated to the original question, Margold started his opinion by looking to Section 19, the definition of a “tribe” because Section 16 did not define the word “tribe.” Margold stat ed that, in his opinion, the IRA “permits the organization of a tribe” of any of the following groups:

a. A band or tribe that has only a partial interest in the lands of a single reservation;

b. A band or tribe that has rights coextensive with a single reservation;

c. A group of Indians residing on a single reservation, who may be recognized as a “tribe” for purposes of the Wheeler-Howard Act regardless of former affiliations;

d. A tribe whose members are scattered over two or more reservations in which they have property rights as members of such Tribe.

The only one of the four circumstances that come close to the Minnesota Chippewa “Tribe” is Section (d). Therefore, we believe Section (d) was used as the legal authority to create the MCT.

It does not appear to the Committee that the Indi an Service could have reasonably applied the Margold Memorandum Section (d) provision to “organize” the Chippewa Indians of the Mississippi (except the Red Lake Band and the Lake Superior Bands in Minnesota) as one Tribe under the authority of IRA Section 16. The Committee defers to the facts and legal research of the Mille Lacs Band lawyers to make that determination.

It appears that Section 16 could not and did not pro vide the Indian Service with authority to organize the Chippewa Indians of the Mississippi, (except the Red Lake Band and the Lake Superior Bands) as one Indian Tribe. Neither the IRA nor IRA Section 16 authorized the Secretary of Interior or any of the Chippewa Indians of the Mississippi, (except the Red Lake Band and the Lake Superior Bands) to create an “Indian tribe” or “tribe” – especially one that did not exist at the time of the IRA’s enactment on June 18, 1934.

However, the Committee believes the Indian Service did create something here in Minnesota. But that some thing was not an “Indian Tribe or tribe” under Section 16. Instead, the Secretary of Interior approved a constitution for an entity known as the Minnesota Chippewa Tribe as an organization, but not an Indian Tribe or tribe. Thus, forming the Minnesota Chippewa Tribe as an organization avoided the problem of creating the Minnesota Chippewa Tribe as an Indian Tribe. In addition, the Committee notes that IRA Section 16 does not specify the type of “organization” to be created. Therefore, the Indian Ser vice was not required to identify what type of entity the Minnesota Chippewa Tribe was to become.

The Committee also noted that the Minnesota Chippewa Tribe created on July 24, 1936 was not and could never be a “sovereign” like the Boise Forte, Grand Portage, Fond Du Lac, Leech Lake, Mille Lacs, and White Earth Bands. The Minnesota Chippewa Tribe had never signed any treaty with the United States. The Minnesota Chippewa Tribe had no Indian reservation created by treaty or Executive Order.

In conclusion, the Minnesota Chippewa Tribe did not exist on June 18, 1934 — the date Congress enacted the Indian Reorganization Act. And, under United States law, it makes a big difference if you are sovereign or not.