Mille Lacs judges uphold Benjamin's ouster

Mille Lacs, Minn. — For the past week, Melanie Benjamin has argued that the band assembly violated her constitutional rights and due process.

Benjamin, who began her third term as CEO in July, has said the accusations against her are false and defamatory.

She tried to stop the band assembly from holding a removal hearing, and an appellate judge granted her request. But the band assembly voted her out anyway.

This week, a special magistrate and three other judges reviewed the matter, and ruled in favor of the band assembly.

"The court is acknowledging that a removal proceeding ... has its own due process protections within it," said Rjay Brunkow, the band's solicitor general. "The court is not authorized to review the extent of the due process, or whether the due process was to the court's satisfaction."

Richard Osburn is the band's senior deputy solicitor general. Simply put, he says the Minnesota Chippewa Tribal Constitution gives all the power to the band assembly, called the Reservation Business Committee.

"If a Reservation Business Committee has created a court by statute, that Reservation Business Committee could legislate that court out of existence if it wanted to, because it's not a constitutional court, it's a statutory court," said Osburn.

Osburn says for that reason, the question of Benjamin's removal proceeding has no place in tribal courts.

But Melanie Benjamin's lawyer calls the ruling a tremendous erosion of separation of powers.

Mille Lacs is the only band in the Minnesota Chippewa tribe with separate judicial, legislative and executive branches. Benjamin's lawyer John Swimmer says separation of powers will now cease to exist.

"They will disregard 30-plus years since the whole process was put in place -- all progress, rules, and interpretations made under the constitution and then the statutes, since they decided to split into a separation of powers government," said Swimmer.

The band's solicitor general disagrees with Swimmer, and says the three-part system of government at Mille Lacs continues to exist. He says the judiciary just doesn't have authority over a constitutional issue, like a removal process.

An Indian law expert says the conflict between courts and councils is common among tribes. Keith Richotte teaches federal Indian law at the University of North Dakota School of Law. Richotte says many tribal constitutions establish one branch of government, usually a tribal council. In the case of the Mille Lacs Band, that tribal council is the Reservation Business Committee.

"So in a lot of instances, a tribal court is subservient to the tribal council or is created through the tribal council, and that has caused a lot of problems," said Richotte. "It's an area of controversy in a lot of tribal communities, because a lot of people don't necessarily feel that the tribal court is able to address their needs or adjudicate properly, because they end up becoming answerable to a tribal council."

Benjamin's lawyer says he and Benjamin respect the court's decision. At the same time, he says they're reviewing their options to fight the court's decision, but he's not hopeful. He says they've exhausted all legal channels.

The band assembly is now putting together a timeline for the election of a new chief executive.