As James Cohen sees it, there has been one constant in the bitter and long-running conflict over tribal enrollment at the Shakopee Mdewakanton Sioux Community: The federal government's unwillingness to address what he calls "this ongoing and tragic fraud." According to Cohen, an attorney who represents tribal dissidents, "The government's benign neglect and, in recent years, their apparent deliberate ignorance has allowed the heritage, the culture, the identity, and, in fact, even the name Mdewakanton to be stolen. It should be called the sin of silence."
That silence may now be coming to an end. On March 6 U.S. Rep. Don Young, chairman of the House of Representatives' powerful Resources Committee, announced Congress's intention to examine the controversial enrollment practices of the Prior Lake-based tribe. In a 14-page letter to Bruce Babbitt, Secretary of the U.S. Department of the Interior, Young requested "any and all documents" pertaining to Shakopee's membership rules.
Those rules have been raising eyebrows since at least the early Nineties, when the tribe opened Mystic Lake Casino. Unlike most tribes in Minnesota, the Shakopee Mdewakanton distribute a substantial share of casino profits to members. And since the profits are large and the membership small (no exact figures are available, but enrollment is thought to be lower than 300), those payments are substantial. Today, every enrolled Shakopee member receives roughly $75,000 a month.
As the payouts grew, so did the number of people eligible for them. Over the past decade, Cohen alleges, the tribal leadership has shepherded through the "adoption" of as many as 250 people who don't meet the membership standards mandated by the tribal constitution. Meanwhile, he adds, as many 150 legally qualified Shakopee Mdewakanton have been improperly excluded from membership--and thus have lost out not only on the payments, but on their chance to participate in tribal governance (see "Blood Money," January 26).
Documents from the local office of the federal Bureau of Indian Affairs--the agency charged with overseeing tribal elections and constitutions--indicate that officials have considered Shakopee's practices problematic for years. According to a 1995 affidavit from retired BIA assistant area director Robert Wynecoop, by 1993 his office was "concerned about the fact that non-members...were receiving distributions of gaming revenues in violation of the Indian Gaming Regulatory Act." In another 1995 letter, Robert Anderson, former Associate Solicitor with the Interior Department's Division of Indian Affairs, wrote that the tribe had "allow[ed] individuals who do not meet membership requirements to receive benefits." Anderson also stated that those individuals "should not be allowed to vote in tribal matters."
Yet, says Cohen, those findings resulted in precious little action. Over the years his clients have filed numerous complaints against Shakopee with the BIA, the Department of the Interior, and the federal courts. Most recently he filed a challenge to the January 18 tribal election; there has been no response. The BIA has yet to act on a similar complaint Cohen prepared in 1996.
It has been, says the attorney, a frustrating process for his clients. "Imagine you're out driving on a country road," he offers. "There's a stop sign. But everybody's been driving through it for years. People take a quick look and roar right through, even though there's a cop right next to it. Well, that stop sign is the tribe's constitution, and that cop is the Department of the Interior. And the department is just sitting there, letting everybody go through the stop sign."
The Shakopee Tribal Council did not respond to requests for an interview for this story. In a press release, the council defends its enrollment policies, saying that the tribal court has upheld the enrollment rules as valid, and directs further inquiries to "Congress or the Department of the Interior." BIA officials in Minneapolis and Washington also did not return City Pages' calls.
If the Shakopee controversy becomes the subject of Congressional hearings, Dennis Chappabitty says, the effect could be felt by tribes across the nation. A Sacramento-based attorney who specializes in federal Indian law and an enrolled member of the Comanche Nation, Chappabitty points out that conflicts over enrollment--often related to political disputes--have arisen on many reservations. "I don't argue with tribes' sovereignty rights to set membership standards," he explains. "But the problem is that once those standards are set, there's still discrimination as to who qualifies. The gate is arbitrarily opened for some applicants and closed for others. Tribal officials refuse to explain themselves, and to me that's an indication that a problem exists. I see far too much tap-dancing on their part, and their silence in the face of questions doesn't do anyone any good."
Still, Chappabitty says, given Congress's record in dealing with matters of tribal sovereignty, he is ambivalent about the prospect of lawmakers addressing the issue. "Congress can't go in and deal with a problem delicately," he complains. "They go in with a butcher knife and cut sovereignty to shreds. And in the current political environment, that's a real risk."
Chappabitty is not the only observer to worry about the scandal's political implications. In his letter, the Resources Committee's Young pointedly asks for an explanation of the Interior Department's policy allowing Secretary Babbitt to "take jurisdiction of any case before any employee of the Department." Though the motives behind that query aren't spelled out, the language holds echoes of a past scandal involving Babbitt's department and the Shakopee Mdewakanton. For two years, beginning in 1997, the Department of Justice investigated whether $75,000 in soft-money contributions to the Democratic National Committee from Shakopee had influenced the administration's rejection of a plan for a rival casino in Hudson, Wisconsin. Babbitt was formally cleared of wrongdoing in that case last summer.
No one has publicly cast the Interior Department's handling of the Shakopee enrollment issue as a political quid pro quo. But critics are questioning the agency's ability to do its job. "Clearly they've made the determination in the past that something is wrong and yet they haven't taken action," says Sam Willett, legislative assistant for Minnesota Rep. Gil Gutknecht, one of five members of Congress who joined Young in requesting the investigation. "Congressman Gutknecht believes there is enough information out there that we have an obligation to shed the light of day on some of these facts."
Speaking on condition of anonymity, another congressional staffer says a failure to restore "tribal integrity" in Shakopee could have broad implications for tribes across the nation. "This could be a real black eye for Indian gaming if we don't straighten this out," he opines. But while some fear that a Congressional investigation will lead to attacks on tribal sovereignty, the aide says, the House Resources Committee has no such agenda. "Occasionally," he notes wryly, "Congress does things for the sake of good government. We're looking into this because it's the right thing to do, not for any spin or political angle."
Winifred Feezor--a Mdewakanton elder and one of James Cohen's clients--is not worried about Capitol Hill politics either. Along with her sister Cecilia St. Pierre, Feezor is suing the Interior Department for its role in a scandal she calls "as plain as the nose on your face." After years of clamoring for a federal investigation, Feezor views the prospect of a congressional inquiry as welcome news. But she remains guarded. "It sounds good," she says wearily. "I hope the BIA will just admit that they've made mistakes and won't put this on the shelf. But until I see some action, I'm not believing."