CONSTITUTION DELEGATES COMMITTEE
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 Non-Removable Mille Lacs Band Constitution Re-form Delegation Committee released a report on the organization known as the Minnesota Chippewa Tribe and its Constitution. The committee is providing the Mille Lacs Band members a review of this report, which will be broken into sections over the next few months.
COMMITTEE’S PRELIMINARY ANALYSIS OF THE SOLICITOR'S OPINION IRA INTERPRETATION REGARDING TRIBAL ORGANIZATION AND DEFINITION OF TRIBE AS POLITICAL ENTITY
The Committee believes that a legal memorandum to the Secretary of Interior dated November 24, 1934, and authored 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.
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 administer the Indians and do what it wanted to do with the Chippewa Indians in Minnesota for the convenience of the U.S. government.
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 include changing the law and believes this legal issue requires 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 stated that, in his opinion, the IRA “permits the organization of a tribe” of any of the following groups:
1. A band or Tribe which has only a partial interest in the lands of a single reservation;
2. A band or Tribe which has rights coextensive with a single reservation;
3. 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;
4. 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, the Committee believe Section (d) was used as the legal authority to create the MCT. The Committee thinks there are plausible facts to support a contention that Chippewa Indians were “scattered over two or more reservations.”
It does not appear to the Committee that the Indian Services 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 thinks that Margold’s theory, the Indian Service acting under “administrative” authority is not reasonable. We defer to the fact and legal research of the Mille Lacs Band lawyers to make that determination.
Based on the Committee's research, it appears that Section 16 could not and did not provide the Indian Service with the 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 facts show that the Indian Service did create something here in Minnesota. But that something 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 or tribe. In addition, the Committee notes that IRA Section 16 does not specify the type of “organization” to be created. Therefore, the Indian Service 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. Under United States law, it makes a big difference if you are sovereign or not.
