Solicitor General Opinion 37-13
Solicitor Gen. Op. 37-13
Date: January 08, 2013
The Speaker of the Band Assembly has inquired about the legal underpinning of the legislative practice of providing individual Band member loans and/or grants.1 The Band’s inherent, aboriginal right to self-govern is manifested within the “Constitution of the Minnesota Chippewa Tribe[, which represents] the supreme law of the Band.”2 The former MLB Reservation Business Committee could exercise several enumerated constitutional powers,3 and the Band Assembly has since assumed that historic role.4 One such power involved the ability “[t]o administer any funds within the control of the Reservation,” including “expenditures from [such] funds for . . . Reservation purposes.”5 The Business Committee could only authorize expenditures “in accordance with a budget, duly approved by resolution in legal session.”6 Furthermore, “the amounts so expended [had to] be a matter of public record at all reasonable times.”7
Subsequently, the Band Assembly divided its power amongst a tripartite form of government pursuant to various statutory enactments.8 In relation to fiscal affairs, the Band Assembly has expressly maintained the elemental power “[t]o appropriate all Band revenue.”9 The Band Assembly has presumably reserved unto itself, at least in part, the derivative constitutional authority to expend tribal funds,10 having nowhere exclusively delegated such power.
The District Representatives have not been conferred any individual power to conduct financial affairs.11 Therefore, any such power must instead be discharged in accordance with the prescribed constitutional procedure.12 As a conceivable check on this power, the Secretary-Treasurer may investigate alleged instances of financial irregularity,13 and may consequently “issue Secretarial Orders to implement decisions concerning matters of the fiscal affairs of the Band.”14
More commonly, the Chief Executive is charged with “faithfully and impartially execut[ing] . . . resolutions of the Band,”15 and each executive officer, including the Chief Executive,16 can “authorize the expenditure of all appropriated funds within their subject matter jurisdiction.”17 Yet, to reiterate, the Band Assembly may permissibly occupy a complementary role as concerns direct appropriations to the membership in the form of loans and/or grants. The Band Assembly must supplement, not subsume, executive branch programs lest it create an unnecessary separation of powers dilemma.18 And, in doing so, the Band Assembly must act collectively pursuant to the Constitution.
1 3 MLBSA § 29, available at http://www.millelacsband.com/Page_BandStatutes.aspx.
2 2 MLBSA § 1.
3 REVISED CONST. & BYLAWS OF THE MINNESOTA CHIPPEWA TRIBE (hereinafter CONSTITUTION), art. III, § 2, available at http://www.millelacsband.com/Page_BandStatutes.aspx.
4 3 MLBSA § 1.
5 CONST., art. VI, § 1(b).
8 2 MLBSA §§ 3-4.
9 3 MLBSA § 2(b).
10 3 MLBSA § 2(d, g) (citing CONST., art. VI).
11 Id., § 8(a).
12 Supra note 5.
13 3 MLBSA § 7(d).
14 Id., § 7(g).
15 4 MLBSA § 6(a).
16 Id., § 4.
17 Id., § 7(c).
18 Supra note 8.
Todd R. Matha