Chapter 6 – Context
Why would a special appearance to object to a court’s assertion of jurisdiction – a
relatively common legal procedure – result in the extreme sanction of exile?
At the surface is reiteration of an explanation for absence of due process in the Red
Lake Courts of Indian Offenses published in 1972 in the North Dakota Law Review:
If a party likely to object to the proceedings is not present, it’s easy to “win” a court
case.
After I was removed from the tribal courtroom by exile, the only party present at the ‘Indian’
probate hearing was the Valerie Blake, who – backed by the Red Lake elite1 – sought the
jurisdiction of the Red Lake Indian court by petitioning for probate there.2
I filed a statement formally objecting to Indian probate jurisdiction with the Red Lake
‘court’ in November 1997; a copy of that statement circulated through the Indian community
and was published in the Native American Press about a month later. My statement of
objection to any assertion of probate jurisdiction by the Red Lake ‘tribal’ court included my
mailing address and telephone number, and the documents filed with that Indian court by
Valerie Blake3 included the name of Bemidji attorney Paul Kief, who, by that point, I had
retained to represent me. I was not, however, notified of the pending Indian probate hearing
by either Red Lake or Valerie Blake.
Wub-e-ke-niew was a public figure in the Bemidji area, and the news that the
adamantly not “Indian” Wub-e-ke-niew was to have his estate probated at the ‘tribal’ court,
1
circulated through the regional legal community until reaching Mr. Kief, who notified me of
the pending hearing.
During the eight years between the United States Commission on Civil Rights’
confidential draft report on Enforcement of the Indian Civil Rights Act of 1968,4 sent to thenchairman Roger Jourdain on May 30, 1990, and the “Indian probate” attempted by the Red
Lake ‘tribal’ court in May 1998, the tribal council had licensed a short list of attorneys to
practice at Red Lake. Paul Kief was not on that list of about a dozen attorneys, so I contacted
all but one5 of the attorneys approved by the tribal council. None were willing to represent
me, and more than one expressed concern about the possibility of the tribal council’s
rescinding their license to practice at Red Lake in retaliation for representing me in
opposition to the tribal council.
“You understand, don’t you,” one attorney asked me after we discussed my case.
“Of course,” I said. In 1998, Bemidji was still the sort of small town where maintaining
harmonious social relationships was important, so I acknowledged that retaining the Red
Lake tribal council’s license to practice law meant that the attorney would be able to help
‘lots of people who really need it,’ instead of just me.
One attorney offered to help in the only way s/he perceived as feasible: by
unobtrusively ‘hanging out’ at the Red Lake law enforcement center, and on my behalf
paying attention to the pre-trial backroom proceedings.
The Indian probate hearing was originally scheduled on May 22nd. I arrived with
Mary Harding, who had agreed to be a ‘witness’ to the proceedings, filed a “Notice of
Special Appearance” objecting to the Indian court’s assertion of jurisdiction, and got a
2
receipt from the Clerk of Courts. I chatted briefly with a longtime friend and police officer
who worked at the law enforcement center, who greeted me cheerfully, asked me how I was
doing, and then answered his own question with a gentle smile, “pretty good – under the
circumstances.” I smiled back. “Yeah,” I said, “pretty good, under the circumstances.”
On that Friday, Mary and I then waited for two and a half hours in the foyer outside
the courtroom. Occasionally one of us would go outside for a cigarette, and I visited briefly
with some of the other people waiting to be called into the courtroom.
After a couple of hours, the attorney who had offered to ‘hang out’ in the
backrooms walked into the foyer, glanced at me, and then walked outside. I followed. “I
have to get home,” the attorney apologized, and then, speaking quietly, added that s/he had
overheard Valerie Blake and the Red Lake Indian Court’s Chief Judge Wanda Lyons
discussing the possibility of jailing me as a way of keeping me out of the courtroom. I
thanked the attorney for coming, and assured them that I had already made arrangements for
bail – the Red Lake Indian court had been a highly politicized ‘kangaroo court’ for decades,6
and the possibility of being arrested on fabricated charges was one I had weighed as a part of
my decision to object to its assertion of Indian probate jurisdiction.
After the attorney left, I asked Mary to come outside and ‘have a smoke’ with me. I
quickly sketched what was happening, told her who had agreed to help me with bail if that
was needed, and asked her to hold onto my wallet and other possessions, retaining only a $5
bill and my driver’s license in my pocket. We walked back into the courtroom foyer. I
peeked into the still-empty courtroom, and then we sat back down to wait awhile longer.
3
About two and a half hours after the hearing was scheduled, Valerie Blake walked
through the foyer, smiling as though she was very pleased about something, and, a little
while later, Mary and I were called into the courtroom. Wanda Lyons, the chief judge at the
Red Lake ‘tribal’ court, told us that the hearing was being postponed until 9:00 a.m. on May
26th, the Tuesday after the Memorial Day weekend. She added that she was re-assigning the
case to Bruce Graves, because Lyons had helped Valerie Blake “prepare the case.”
On May 26th, Mary and I returned to the Red Lake law enforcement center for the
rescheduled hearing. I filed a second ‘Notice of Special Appearance’ and supporting
documentation, mostly to ensure that it was unambiguously clear that I was not consenting to
the Indian court’s assertion of jurisdiction, and asked the Clerk of Courts for another receipt.
Bearing witness to the proceedings, Mary Harding logged events as they unfolded:
Arrived at 9 a.m., May 26 in accordance w/ the direction of Judge Wanda Lyons from
the original court date of May 22. The hearing was postponed after 2½ hours of
waiting (& back room negotiations) at that time.
May 26: The judge (Bruce Graves) entered the courtroom at 9:45 to go thru the box
of evidence. (Note: apparently Valerie has been here for some time – we
haven’t seen her yet.)
10:20: Officer appears w/ order of removal from the Res.
10:20: Judge opened hearing –
asked Val about Francis Blake’s [Wub-e-ke-niew] name
Birthday / Age
Valerie – requests removal of Clara – based on no relation & doesn’t want to
hear anything she may have to say
Asked about the issues today Valerie responded Beltr. Elect. Credits
Paul Bunyan redits
Val protests Clara’s presence re: removal order
Judge ordered 5 min. recess –
Removal Order entered nto the Court by the Judge – Clara removed
4
Judge asks my name & business w/ court. I respond that I’m a friend to Wub &
Clara. He states that it’s a closed hearing & asks athat I leave.
10:30 a.m. [signed] Mary C. Harding7
The right of habeas corpus – Constitutional protection against illegal confinement – is
the only civil right enforceable against ‘tribal’ governments in federal court,8 and if I had
been jailed instead of exiled, the right of habeas corpus would have given me a likely
sustainable entrée into the federal court system. More than six years later, I still don’t know
who made the decision to exile me, or on what alleged grounds – but at about 10:25 a.m.,
central daylight savings time, on May 26, 1998, I was forcibly removed from the courtroom,
and banished from the reservation, so that there would be no objections to the U.S.
government, through its ‘tribal council,’9 asserting jurisdiction over the
Ahnishinahbæótjibway land that Wub-e-ke-niew’s ancestors had never ceded.
The “Order of Removal,” dated Tuesday, May 26, 1998 and signed by Bobby
Whitefeather, who was tribal council chairman at that time, asserts that:
This order of Removal shall remain in full force and effect until revoked in writing by
the Tribal Chairman or by Resolutions of the Tribal Council of the Red Lake Band of
Chippewa Indians.10
Lifetime exile, unless there is a substantial change in Red Lake ‘Indian’ politics.
The Red Lake ‘tribal court’ awarded all of my personal property11 – as well as
Wub-e-ke-niew’s and my joint property, his property, etc. – to Valerie Blake. To the best of
my knowledge in the absence of any factual evidence, the ‘Indian court’ decided that she was
Wub-e-ke-niew’s “biological daughter,” and ex post facto applied the September 1990 ‘tribal
code’ to ‘invalidate’ Wub-e-ke-niew’s and my 1984 Ahnishinahbæótjibway Midé marriage.
5
Referred to by some as the “Hudon-Beaulieus” after one of the Métis families who ascended to power as
trading post administrators during the heyday of the fur trade [Hudon dit Beaulieu, originally from Angiers,
France], intermarried with the daughters of government-created “chiefs,” consolidated their hold on “Indian
affairs” as power-brokers and translators during the treaty-making era, and still hold extensive power in
Minnesota Chippewa Indian communities.
2
Her “payoff” included being hired by the Red Lake ‘tribal’ council to work at the Red Lake courts shortly
after the probate hearing, as well as at least ten thousand dollars in cash payoff – and all of Wub-e-ke-niew’s
and my property.
3
The Minnesota Ninth District Court, Beltrami County’s acceptance of a motion by the Paul Bunyan Rural
Telephone Cooperative to pay more than $3,000 in retired capital credits – accrued from Wub-e-ke-niew and
my telephone service – into the administration of the Beltrami County court.
4
Native American Press/Ojibwe News archives, scanned copy online at
http://www.maquah.net/Legal_Documents/ICRA/ICRA-index.html, accessed June 15, 2004.
5
The one attorney I did not contact was someone whom Wub-e-ke-niew believed to be both dishonest and
badly motivated.
6
As Wub-e-ke-niew put it in We Have The Right To Exist,
Before court is held, the Indian Agent goes over the cases to be heard with the judge, and tells him how
1
much of a fine to levy, and how many days the defendant should spend in jail. The B.I.A. Indian
Agent has the power to decide what the outcome of the trial will be, before it goes to court. The EuroAmericans say that they want to “acculturate” Indians, but as a conquered people they are kept separate
from the mainstream, and the finer points of the Euro-Americans’ English and Roman legal system
(like fair trials) are ignored. As long as I can remember, even the Métis have called the courts set up
for Indians, “kangaroo courts.” (pp. 190-191)
7
Statement of Mary Harding, filed with the Ninth District Court, Beltrami County, In Re the Application of
Paul Bunyan Rural Telephone Cooperative, case file C2-98-470. Online at:
http://www.maquah.net/AhnishinahbaeotjibwayReflections/1998/1998-05-28_Mary_statement.html, accessed
June 16, 2004.
8
The U.S. Supreme Court, in the case Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), found that “ICRA’s
only express remedial provision, 25 U.S.C. 1303, extends the writ of habeas corpus to any person, in a federal
court, ‘to test the legality of his detention by order of an Indian tribe’,” and that “Congress’ failure to provide
remedies other than habeas corpus for enforcement of the ICRA was deliberate,” thus habeas corpus is the only
enforceable civil right on most Indian reservations.
9
There is no separation of powers in the Red Lake ‘tribal’ government established under the 1958 constitution.
10
“Oder of Removal of a person from the Red Lake Indian Reservation, TO: Clara Niiska [sic], published in the
May 29, 1998 Native American Press/Ojibwe News, and online at
http://www.maquah.net/AhnishinahbaeotjibwayReflections/1998/1998-05-28_Whitefeather_exile_order.html ,
accessed June 16, 2004.
11
Including my underwear and fairly clearly personal property.
6