Tribal attorney finds niche advising Menominee Indians

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The director of legal services for the Menominee Indian Tribe of Wisconsin usually keeps an eye on cases involving the tribe he represents, or Seventh Circuit cases involving other Native American groups. However, earlier this summer, he was also paying close attention to a case out of South Dakota.

Back in June, the U.S. Supreme Court issued a decision addressing a Native American tribal court’s authority.

The Supreme Court determined that a tribal court lacked jurisdiction to hear discrimination charges brought by tribal members against a non-Indian bank concerning the bank’s sale of its fee land to another non-Indian.

Tribal Sovereignty

Although the decision in Plains Commercial Bank v. Long did not involve the Menominees in northeastern Wiscon-sin, William Kussel, the tribe’s director of legal services and tribal attorney, said he was paying attention to the outcome. Kussel said he is very interested in cases addressing such an important issue — tribal sovereignty.

He noted that even when those decisions are not good for the tribe, they can serve an important role by providing a framework for them when dealing with commercial issues.

That helps him when he sits down to write opinions for the tribal government regarding what’s enforceable and what is not, as well as the appropriate venues where disputes will be resolved.

“The issue of what laws apply to the tribe” is very important, Kussel said during an interview in his Keshena office. “We know that very few state laws apply to the tribe, but what federal laws of general applicability apply?”

He noted that federal “laws of general applicability generally apply to a tribe unless they interfere with certain aspects of tribal sovereignty, treaty rights, and intramural activities, but it’s far from a bright line.”

Diverse Roles

During the past 22 years, Kussel has represented the Menominee tribe in a variety of capacities, appearing in tribal, state and federal courts. Throughout the years, he has served as a prosecutor, an attorney for tribally and federally funded programs, and as a legal advisor to the tribal legislature. For more than a year, he has overseen all legal activities as the director of legal services.

Kussel, who grew up less than 60 miles away from his office, came to work for the Menominee tribe in 1986 as a tribal prosecutor. At the time he was the tribe’s only licensed attorney. Since then, he has held several different legal positions.

Now he oversees a staff that includes two full-time and one part-time assistant tribal attorney. His team provides legal services to the tribal government and to the tribal programs.

They help write laws and regulations; they look at the tribe’s laws and interpret what they might mean; and they defend the tribe in cases landing in the tribal, state and federal court systems. They also bring cases in which the tribal government is the plaintiff.

In many ways, Kussel describes his current role as similar to that of corporation counsel. He attends meetings of the tribal legislature and its committees, helping them draft ordinances, interpret existing laws and resolve other tribal issues.

“The reservation has all the issues of a small county and of a small local government,” Kussel said.

Many of the legal questions he deals with involve personnel issues. He also looks at the applicability of state and federal laws.

State Law Need Not Apply

Kussel noted that for the most part, state law does not apply on the Menominee Reservation because it is not subject to the federal law providing for state jurisdiction.

That jurisdiction comes from Public Law 280, which was designed to transfer some legal authority from federal courts to state courts. Due to the Menominee treaty with the federal government, that group is the only one in the state that is not subject to PL 280.

“So if you have a native who commits a crime here and the tribal prosecutor doesn’t prosecute and the federal government doesn’t prosecute, there’s no state jurisdiction,” Kussel said.

His department advises the tribal police department on a variety of law enforcement, jurisdictional and personnel matters. They also help with legal issues related to community development, zoning, transfer of property and putting land into trust.

Kussel noted that, while the tribe has some outside attorneys that it uses for things like environmental issues, he typically does not look beyond his own staff for the wide variety of issues they typically tackle.

“We can, with our staff, handle many of these issues within this office,” Kussel said.