Lenor Scheffler: The Lower Sioux Indian Community's Approach to Citizenship

William Mitchell College of Law

Lawyer Lenor Scheffler (Lower Sioux Indian Community) provides an overview of the Lower Sioux Indian Community's approach to defining citizenship, which is predicated on residency within the Lower Sioux reservation's boundaries. She also discusses how eligibility for tribal social services is tied to residency. 

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type

Scheffler, Lenor. "The Lower Sioux Indian Community's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Colette Routel:

"Good afternoon everyone. My name is Colette Routel and I'm also one of the co-organizers of this conference along with Sarah Deer. I teach at William Mitchell College of Law. For our afternoon, we're getting started with a panel on other citizenship requirements. After spending the morning talking about the choice between lineal descendency or blood quantum, we now have two speakers that are talking about things such as residency requirements, tiers of citizenship and adoption. I'd like to call up now the two speakers, Lenor Scheffler and Sarah Deer.

Once again, their full bios are in the program, but I would like to highlight just a little bit about each one of them. Lenor Scheffler, who's sitting here to my immediate left, is a partner at Best & Flanagan, where she runs their Indian law practice. She's a member of the Lower Sioux community and she was born near Morton, Minnesota. She is a 1988 graduate of William Mitchell College of Law. She's actually on our school's board of trustees, and she was the first Mdewakanton attorney that we know of anywhere in the United States. After she left William Mitchell, she began her private law practice and like I said she works at Best & Flanagan, which is one of the larger law firms in downtown Minneapolis. She's been very active in the Minnesota American Indian Bar Association and there's a list of her long accolades as well, too, in the bio.

Next to her is Sarah Deer, who you've all heard from this morning. Sarah is a citizen of the Creek Nation in Oklahoma. She's been teaching at William Mitchell College of Law since 2009 and before that she worked for the Tribal Law and Policy Institute and for USDOJ [U.S. Department of Justice] doing grant work for them. Sarah's main area of expertise is actually on violence against women. She was instrumental in helping Congress draft and get passed both the Tribal Law and Order Act in 2010 and then the reauthorization of the Violence Against Women Act much more recently. Sarah's going to talk about her recent scholarship on her own tribe and their constitutional revision process. I'll turn it over to them. Thanks."

Lenor Scheffler:

"Thank you. Good afternoon everyone. Good to see you. Hopefully the food was good and you'll stay awake. If not, we'll have to jump up and down or something. [Lakota language]. I wish you a good day. Glad to be here with you. I am going to talk a little bit about my experience and I have a councilman here who can correct me if my information's a little off. But Gary Prescott, one of our councilmen at Lower Sioux, I'm proud to have him on our council and here today. At Lower Sioux, we rely on a residency requirement and so I'll be talking about that, but generally I just wanted to make a couple comments.

In my practice, which I've been working in Indian Country now it'll be 20 years next year, which is like, 'How did that happen?' And when I work with my tribal clients and they're talking about constitutional reform, the one issue that is the...or the biggest issue of stumbling block after things like land and jurisdiction maybe, but is membership. How do we define who we are as a tribal person, as a First Nation person? Everybody -- depending on whether you were born on the reservation, off the reservation, depending on your age and how much blood you have, your background, your experience -- everything comes together about how you define yourself individually as a tribal member of your particular tribal nation and also how your tribe looks at you and how the outside world majority society looks at us. So it's very complicated, confusing, emotional, challenging -- all of the above -- and so I'm really glad that there's this conference where we can have some discussions and conversation and hopefully you've been able to share some good ideas about this very important topic.

The Lower Sioux, when I was born, under our constitution, which was an Indian Reorganization Act constitution, you had to be born to a member who resided on the reservation and you had to be able to identify your descendency from the 1886 rolls. And so when I was born, my mom lived on the reservation and we can trace our ancestry back to 1886 and beyond. But then, over time our lives have changed, chunks of us have moved away. One of my other councilmen told me that we have approximately over 1,000 now members at Lower Sioux and there's a certain number that live on the reservation, and we also have a service area that we identify or recognize so many miles outside the reservation, and we have then also large numbers of our tribal members who live outside even that service area. And our membership ordinance has privileges and...membership and privileges. I can't remember the exact title now. I should have looked at it before I came here. But residency...if you're a resident of Lower Sioux or in the service area, and in this case now it's up to five years, then you are eligible for certain privileges that are set out in the ordinance and if you have...if I would choose to move back -- which was one of my desires was to retire at Lower Sioux -- I would have to establish residency and there may be some other, if I recall, some other categories. But when you have those privileges, those include the health benefits, the voting, the land assignments, those sorts of things, because our constitution also says when you get a land assignment or a land lease, you have to develop it and reside there and if you abandon it for a certain number of years, then you have to relinquish it back to the community.

So it's been a very interesting experience in my lifetime to watch my community. We all knew who each other was even though, as you know, when our censuses were made by the United States government over the years they were not always accurate and we knew who actually was the child of that couple or who the real mother was and we also know there are examples that people happened to be visiting Prairie Island when they took the census and so a Yankton person might be counted as a Prairie Island person. So we know there are flaws in the records that the government has provided saying who we are in each of our communities, but we as tribal people, we know exactly who our people are, in my opinion. That's my personal opinion.

And so watching at Lower Sioux...and most of us at one point stayed there. Some people left for jobs, some people left for education because there wasn't much there. What I remember is the gravel pit and the gravel roads when I was a kid and then it changed and we had gaming and that brought a whole different experience. I think of our...my childhood as rather idyllic and sheltered living on the reservation. It wasn't perfect, but it was pretty wonderful in my mind and a great place to be, but I knew I had to leave and others made those choices. To watch going from everyone being included, everyone knowing each other to having the influx of workers and relatives who grew up in the Twin Cities or relatives who grew up in other parts of the country because of relocation, people coming back because they're retiring, people are wanting to come back, our community changed. And as those things changed, choices were made about, 'How do we define ourselves?' And as a lawyer, I will defend a tribe's sovereign right to say who their citizens are. And I've also seen when that sword of sovereignty cuts the other way and people are disenrolled or people are harmed by what I would defend as a lawyer, but as a tribal person may have other opinions.

So over the years, our tribe has made choices. How do we account for the people coming back? How do we account for the people who have been here on the reservation their whole life? So we have some benefits. How do we share those benefits and how do we weigh those values and choices that people have made and how do we...because in our Dakota, Lakota, Nakota we are all related. We want to be a relative, we want to live among our relatives and so how do we make choices when we are all related? And so I think it's not been easy for my tribal people to make those choices and sometimes it was in a good way and sometimes it may have been a challenging way, but I believe that they did the best and they do make the best decisions they can.

So residency has been something...it really has helped the members who live there, who choose to live there, who may not be able to leave. The benefits that come with residency makes great sense. I don't mind it that I don't have the benefits, but I...what's so important to me is that I am a member, that I have roots, that that is my home, that is where I come from. So regardless of what label somebody puts on me or says what I get or don't get, I'm individually a person, it doesn't matter. My parents taught my sisters and I that education was everything and to work hard so that we could take care of ourselves whatever we did or wherever we were because my dad said, "˜You're a woman, you're a minority, and the only thing people can't take away from you is your education.' And so we made different choices and so residency to me individually is not as important, but I have other relatives who have retired, my aunts and uncles for example, and it's been very nice because they've not necessarily had 401Ks in their lives where they've lived. I have one uncle who lived in Oregon for most of his life on the Warm Springs Reservation, another auntie who lived off the reservation, and it's been nice to see them to come home with what little retirement they do have, but they get some privileges now and in their old age they have a place to be and to connect and so I think that has great value.

So residence...and it just depends on your opinion, because I also have had my dissident period, I will admit, in the "˜90s, and...where there was about 200 we counted of members of Lower Sioux and descendents and came together and some of us wanted just to be able to vote whether we lived on or off the reservation and others wanted to be able to take advantage of the privileges that were happening at that time -- per capita and other benefits -- regardless of whether you lived on or off the reservation. And so ultimately there was actually a lawsuit. A number of us just dropped out because I wasn't that dissident-like. I don't shake up things that much so we dropped off, but others...actually a case went to the Eighth Circuit, the Maxim case, about privileges and benefits and caused some changes. So it's been an experience that it just depends on where you're sitting as to whether having a residency requirement for the benefits is a challenge or not. But to me the most important is that is...the important thing is that that is where I'm from and where my family's from -- Prairie Island is actually where my grandmother and my great grandmother and Santee is where my grandfather, great grandfather is from -- so it's that connection in place that seems to me most important.

The tiers of citizenship, I've heard of that and maybe that is an option because it is such a hard question to decide who gets to be in and who gets to be out. I have clients who are full blood from other tribes and they say, "˜I do not...,' the chairman of one of my clients from Wisconsin said, "˜I do not want to sit at a council meeting some day and look at the next chairman and he's got blonde and blue eyes. That makes me crazy.' Or I talk to my friends at Prairie Island, my relatives at Prairie Island and they have...they have some descendency and they do have folks that don't necessarily look like majority society says all of us Indians should look like. So I guess my comments are just to give examples and a perspective that, be thoughtful about how you define yourself and find a way...we...gosh, people, we have survived since time immemorial, we should be able to figure out this citizenship piece. We put our heads together, we be relatives with each other and to each other. It seems to me we should be able to figure this out. We can survive this long...I don't believe that we will all waste away because of how we define our citizenship. I think we will figure out a way to do it, but I think it just takes effort and respecting your past, respecting your values, talking to each other and listening to each other and then having the courage to make a decision and then live with that decision and work with it. I think that's another thing maybe...because of all my tribal judge work in my lifetime, too, I'm not afraid of making a decision and just dealing with it, but I think that's what our people have done.

I did a law review article through William Mitchell Law Review in 2012, my perspective on the 1862 uprising or conflict or war -- whatever you want to call it -- and I focused on membership and the challenges that we as Dakota in 1862 faced because we had our people who were already assimilating, cutting their hair, wearing majority society clothes, sitting in wood houses and trying to farm and assimilate, and yet we had our people who were saying, "˜No, we are going to hold on to our traditions and we shouldn't have to do this and we should be able to be who we are.' And contrast those experiences and the complexity of those relationships not only with the United States government and majority society but among ourselves. I contrasted that to a lawsuit that was called Wolf Child v. United States, which was a trust case that had been around for the last almost 10 years now and that was a case again about trust responsibility and a group of plaintiffs having lawyers and they were from our community, Lower Sioux, and saying the government had a trust responsibility to these 1886 descendents, those "friendly" Dakota which is a good and bad term: you either 'hang around the fort Indians' or whatever you wanted to call those folks. And so the case was talking about that issue and whether those descendents...that we should have the benefits that come from those 1886 lands, those lands that were set aside by the federal government for those friendly Mdewakanton Dakota.

And so I contrasted what was happening in 1862 and what was happening with this lawsuit, because that lawsuit brought out the best of us and the worst of us in that having to show your descendency caused people to reconnect with their roots, find out where did great grandma...where was she baptized, was she baptized, where was she born, trying to show that you were descended from those friendly Dakota. But it also divided families that, 'This isn't right, we shouldn't do this litigation.' I'm not a litigator and so I have a theory that litigation gets us nowhere usually, but it does sometimes. But I don't like litigation. You don't have control over what's happening or what the decision's going to be. And so that litigation also, I think, divided us because some families...people who had been in exile from 1862 went to Canada or other parts of the U.S. saying, "˜We want to come back, we want to have land, we want to be members in our communities from where we were born...where we descended from.' And so those...that was dividing in similar ways in my mind as what was happening in 1862. But unfortunately, at this ripe age of, my membership card probably says I'm an elder now, but and after 20 years of practicing law I still don't have an answer about the citizenship and what we can do about it or to take care of or resolve some of those issues from 1862 to today except that the faith that I have in our people and what we've learned and the hope that we can keep moving forward. So those are my perspectives." 

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