*1 GREENE, Appellant, Buddie MINNESO- OF the

COMMISSIONER OF HUMAN

TA DEPARTMENT

SERVICES, Respondent, Human Health and

Aitkin

Services, Respondent.

No. A06-804. of Minnesota.

Supreme Court

Aug. 2008. Sept.

Rehearing Denied *3 Bibeau, Treuer,

Frank Megan Anishi- Services, Lake, Legal MN, nabe Cass appellant. *4 Swanson, General,

Lori Attorney Mar- garet Chutich, H. Attorney Assistant Gen- eral, MN; Paul, Ratz, St. and James Ait- kin County Attorney, Sarah Elizabeth Winge, Assistant Aitkin County Attorney, Aitkin, MN, respondents. for Anderson, Mark A. VanNorman, K. Sara Jacobson, Buffalo, Magnuson, Anderson & PC, Hogen, Paul, MN, St. for amicus curi- ae Chippewa Minnesota Tribe. Mammedaty, Lake, MN, Kim Cass for amicus curiae Leech Ojibwe. Lake Band OPINION DIETZEN, Justice. Greene,

Buddie an enrolled member of (Tribe) the Minnesota Chippewa Tribe liv- ing off the reservation County, in Aitkin challenges the reduction of her benefits under the Family Minnesota Investment (MFIP). Program After Greene was re- ferred the Minnesota Chippewa Tribe employment services, she requested she County, to partici- failed pate in the tribal program. result, As a Greene’s cash benefits were reduced. Fol- lowing an administrative hearing, Commissioner of the Depart- Minnesota (Commissioner) ment of Human Services upheld the reduction of Greene’s cash ben- efits. The district court affirmed the Commissioner’s decision. appeal, On (1) argued the Commissioner improperly interpreted 717 assistance, limit on 42 (2006) lifetime her to receive 60-month require § 256J.645 608(a)(7) (2000). PRWORA was U.S.C. through the Minneso- employment services (2) flexibility intended “to increase Tribe; section Chippewa ta programs by welfare operating States” equal pro- rights her violates 256J.645 shifting for the administra- responsibility States under the United tection programs tion of the to the states. ap- The court of Minnesota Constitutions. 601(a). U.S.C. 2-1 in a decision. Greene peals affirmed Servs., Dep’t Human Comm’r Minn. State TANF are funded with programs We (Minn.App.2007). 733 N.W.2d 490 money. state and federal The TANF both granted review and affirm. government grant from the federal block requirement for cost-sharing has an annual Regulatory

A. Framework States states. U.S.C. help eligible spend money must concerns the administration appeal This ways the TANF families in consistent with Family Pro- Investment of the Minnesota id.; §§ 607- program. See U.S.C. Commissioner of by respondents gram *5 (2000).1 08 of Human Services Department Minnesota and Human Ser- Aitkin Health and PRWORA, federally recognized Under sup- is an (County). MFIP economic eligible to create and Indian tribes are with for low-income families program port 42 programs. their own TANF administer §§ Minn.Stat. 256J.001-.95 children. See (2000). plan § 612 If a tribal U.S.C. (2006). many program provides Depart- by the States approved United need, in in- to families support Services, forms ment of Human Health and assistance, support, food cluding financial of the federal funds out tribe receives assistance, employment ser- and child care grant alloca- state’s federal TANF block 612(a)(1)(A). § vices. 42 Like tion. U.S.C. states, funding may use their TANF tribes & Responsibility 1. Personal reasonably manner calculated Opportunity Act Work TANF, accomplish purposes of but programs have more flexibili- tribal TANF response to MFIP is Minnesota’s 612(a)(3)(C)(ii). ty. 42 See U.S.C. Opportu- Responsibility Personal & Work determine generally Tribes are allowed to Act 1996 nity Reconciliation criteria, eligibility work their own TANF (PRWORA), As- Temporary which created stan- requirements, benefit participation (TANF), Needy for Families sistance dards, populations, and sanctions service replacing grant program federal block Accounting noncompliance. for U.S. Gen. Dependent Children Aid to Families with Office, TANF Al- Tribal Reform: Welfare (AFDC) 104-193, Pub.L. No. program. Programs, but Flexibility lows Tailor (1996) (codified amended as Stat. Make It Conditions on Reservation Diffi- U.S.C.). of 42 in scattered sections 5, 24-31 Recipients into Jobs cult to Move sweeping changes to fed- made PRWORA job “by policy promoting eral welfare work, ground provid- marriage,” 42 broke new and PRWORA preparation, 601(a) with (2000), federally recognized Indian tribes by imposing ing U.S.C. Servs., Wel- Depart- Dep't of Human According million. Minn. 1. to information from (Feb. Services, Figures spending in Minnesota: Facts state ment of Human fare http://edocs.dhs.state.mn. 2007), in 2006 available MFIP cash and state food assistance us/lfserver/Legacy/DHS-4737-ENG. million; spending $224 $55 federal was was opportunity to create administer The provides statute further programs. their own welfare Under agencies “shall encourage govern- AFDC, tribal members had to enroll in ments to assume duties related to MFIP Ac- programs. state welfare U.S. Gen. and shall cooperatively work with tribes Office, supra, at 4. Some counting that have responsibility assumed for a por- organizations heralded PRWORA as “the tion of the MFIP program expand strongest Government’s rec- United States responsibilities, if expansion is re- yet sovereignty.” ognition of Indian Pam quested by the tribe.” Id. Belluck, Tribes’ New Power Over Welfare MFIP, To facilitate tribal involvement Price,

May High Come at Too N.Y. expressly Commissioner is authorized Times, Sept. at Al. PRWORA to enter agreements into federally require does not states to contribute mon- recognized Indian tribes or a consortium of ey support programs or other to tribal provide result, tribes tribes, services to many their As a states. their Tribe, members. including the Chippewa Minnesota up have not set their subd. I.3 agreements, own TANF Under these ensures, grams. Id.2 PRWORA nonethe- responsibility tribes assume the for provid less, that states assistance to tribal ing employment services to eligible their eligible members who are not to partici- id., members. See To effectuate pate in program. a tribal TANF See agreements, these provides MFIP 602(a)(5) (2000) (requiring U.S.C. states “Indian tribal *6 provide tribe, to each member of an Indian benefits and residing in the service area of eligible who is not for assistance under a an Indian tribe operating employment ser program, tribal TANF equitable “with ac- vices an agreement under with the com cess to assistance under the State missioner must be by county referred gram”). agencies in the service area to the Indian Id., tribe for employment services.” Family 2. Minnesota Investment added). (emphasis The interpretation Program and effect of this language referral is at 1997, In legislation Minnesota enacted to the dispute center of the in this case. implement requirements of TANF. Agreements 30, 1997, provide to 85, 1, employment Apr. Act of ch. ser- art. (codified vices to 499, Minn. members benefit the Laws 499-587 at Minn. Indian (1998)). tribes, Stat. as well as provision ch. 256J One their members. re- The quires governments tribes benefit “cooperate funds to devel- governments op provide with tribal and implemen- MFIP services to their § tation of MFIP.” members when MinmStat. 256J.315. there are insufficient re- This cooperation sharing includes “the sources to develop of and administer tribal duties,” MFIP programs. such as “initial TANF screening, Indian tribes that enter orientation, assessments, provision agreements and into of with the state receive employment training funding services.” Id. at the same levels and under the 2. Ojibwe only The Mille Band provide Lacs is the allowed Indian employment tribes to Indian in Minnesota with tribe its own TANF 1, services to their members. See Act of June program. 282, § ch. art. 1989 Minn. Laws (codified 1487-88 at Minn.Stat. 3. ability to contract with Indian tribes to (1990)) 1997). (repealed § 256.736 provide employment pri- services continued a practice or program under the AFDC application process, part fits. As provide as counties conditions same membership form signed a tribal § Greene Minn.Stat. services. See these eligible or that she is enrolled indicating Tribal 3; 256J.626. Minn.Stat. in the Tribe by receiving cultur- for enrollment also benefit Ojibwe. is that Leech Lake Band of It clear services. ally appropriate employment of the implementation is a tribal member and Because Greene aspects other programs services area, resides in the service flexibility so provide are intended MFIP her to Tribe for em- County referred cultural specific can address that tribes Subsequently, Greene services. ployment members; pur- the stated of their needs her to the asked the Tribe refer involvement encouraging tribal pose The Tribe de- services. is “to ensure MFIP implementation it “mandat- ground that was clined special needs program meets that the her with and could provide” ed to services on Indian reservations.” living persons not refer her elsewhere. generally MFIP 256J.315. Minn.Stat. participate refused to in the trib- to “use tribes discretion gives the program. al Under expenditures.” any allowable funds for MFIP, in an ser- participation Therefore, Minn.Stat. program required. See vices to state federal have access tribes “A fails participant §§ 256J.49-.62. who that are tailored provide funds to comply with a good without cause” to in their tribal conditions unique to the requirement “shall be sub- program communities. ject to a sanction.” MínmStat. 256J.645, the State Pursuant section was noti- Consequently, Greene subd. 1. into a and the Tribe entered of Minnesota would be reduced for fied that her benefits Under Grant Contract. Reservation ser- failing cooperate contract, agreed the Tribe she unless established requirements *7 program for mem- services employment in failing participate to “good cause” for The con- in area. bers the Tribe’s service program. Ac- services employment the “shall provides that the Tribe tract notice, “good reasons cording the cause” to persons who services to program Tribal get appropriate inability the to include eligible for such services.” are transportation. lack of care and the child call her case to The notice advised Greene Application B. The Benefits for good cause reason” if she had “a worker employment services attending not the Buddie Greene July appellant In no effort meeting. Greene made overview County to receive through Aitkin applied good to cause. show her child. for herself MFIP benefits 256J.09, (provid- subd. 1 See Minn.Stat. Hearing The C. for TANF as- person applying that a ing appealed the January Greene to In application the must submit sistance benefits, matter in and the reduction county where that county agency in the challenged the fives). hearing.4 to Greene dispute that ceeded is no person There per in benefits of about $200 reduction to receive MFIP bene- eligible was percent grant was 10-day amount appeal did not meet the reduced 4. Greene’s to con- would enable her See Minn.Stat. appeal $473 deadline that a month. $675 from appeal sanctions). while the full benefits tinue (addressing Therefore, Greene's MFIP pending. was month, get arguing employment through services interpreted not be to re- though County] should even pays [Tribe] [the her employment quire her to receive services benefits.” cash The Commissioner con- Tribe, through requiring her to cluded that Greene refused good without employment receive services through cause to participate employment ser- rights Tribe, Tribe violates her constitutional through and the that, equal protection. Greene maintained properly imposed a reduction in cash bene- County, as a of Aitkin is resident she fits as a sanction. entitled to receive services The upheld district court the reduction County. While she through acknowl- benefits, in Greene’s ap- and the court of edged compliance not that she was peals affirmed in 2-1 decision. Greene v. requirements of the tribal Servs., Comm’r Dep’t Minn. Human program, services she testified that she 733 N.W.2d 490 (Minn.App.2007). The looking

was for work. Greene stated that majority determined that both MinmStat. participate she did not “want” and the contract re- program. Tribal The record does not re- quire MFIP-eligible tribal member to veal the reasons Greene failed to partici- use employment provided by services pate program. in the tribal Tribe. 733 N.W.2d at 494-95. The court then concluded that rational basis review D. The Decision applies equal protection Greene’s chal- hearing referee concluded that lenge because classification of tribal Greene was entitled political is a rather than a racial County. The hearing classification. Id. at 495-96. The court officer stated: determined that the statute ra- satisfies imposes While the statute a duty upon review, tional basis because the classifica- county to make referrals to tribal tion is reasonably statutory related employment services when a participant purpose of promoting self-govern- eligible, require- deemed there is no ment. Id. 496-97. The dissent conclud- ment an eligible participant utilize ed that requires “the law a referral but simply they service because are eli- does not strip applicants like [Greene] gible. Likewise, the fact that the tribal rights their as if they resident program cannot forgo wish to their tribal preferences provide eligible refuse to participants *8 directly county.” deal with the Id. services, does not turn create a (Randall, J., re- dissenting).

quirement eligible that an participant [Greene], utilize those services. any like I. County, citizen of Aitkin should be able We first consider Greene’s contention county to employment access services. that the Commissioner in concluding erred provided Because the not has 256J.645, that § Minn.Stat. subd. re- her, those services to there has been quires eligible tribal members to receive comply failure to [no] and sanction employment through services the Tribe. on that basis should be reversed. Greene does not dispute that to maintain The Commissioner reversed the recom- her eligibility for MFIP benefits that she referee, mendation of the explaining required that is participate to in an employ- the statute contract are clear: “A program. ment services See MinmStat. person in 256J.46, [Greene’s] § circumstances must 1. But subd. Greene contends services. Id. employment statute, liv- the tribe for the under that “ added). mandatory.” ‘Must’ is right (emphasis have the off the reservation ing (2006). 645.44, § through the subd. 15a Minn.Stat. services employment receive Tribe. than the County, rather been a tribal member has When employment for ser to re referred to the tribe authority the “We retain obli vices, parallel a the Indian tribe has which arise errors of law de novo view Specifi those services. upon gation provide is based decision agency an when agreement re a enters into an cally, statute.” In tribe that words meaning of employment ser Applications provide 's with state Eller Media Co. Denial of Permits, 664 “must ... members of tribe Adver. Device vices to Outdoor for (Minn.2003). primary The responsibilities provided agree to fulfill the N.W.2d interpretation is to statutory component objective employment services under intention to the of MFIP give regarding operation effect ascertain § 645.16 Minn.Stat. legislature. Minn.Stat. services.” 2(1). ascertaining the intention In Consequently, plain to the give effect legislature, “we for responsibility once a tribe assumes Ill. Farmers statutory terms.” meaning eligible providing employment Co., 683 N.W.2d members, Serv. duty Ins. Co. Glass em (Minn.2004); see Minn.Stat. county to shifts from the ployment services 645.08(2006). provides agreement The here the tribe. MFIP em provide” “shall that the Tribe provides: statute The who to tribal members ployment services receiving MFIP tribal members Indian Thus, Minn. eligible are for such services. residing the service area benefits and contemplates Stat. operating employment of an Indian tribe that referral under statute upon agreement an services under member the tribal commissioner referred coun- must be through the Indian tribe. ty agencies in the service area services. for Indian tribe argue Both the dissent and Greene member retains under the statute 4.5It is undis- employment services right to receive receiving MFIP was puted that Greene County than the Tribe rather through the the service residing within benefits therefore, from and, not prohibited an operating under tribe area of Indian employment services Thus, to receive electing Commissioner. agreement with the According to the County. through the be that Greene “must requires the statute enti- language of MFIP dissent, plain “the county to the Indian tribe by the referred” employment ser- to receive tles Greene The statute services. Id. County.” argu- Aitkin from the one-way referral contemplates the statute premise ment rests on makes Tribe. The statute to the *9 right member the grants to a tribal by providing county’s obligation clear the em- to receive “opt-out” or select whether “must be that tribal members referred” eligible for and was dispute was that Greene argues proper starting the The dissent that benefits, receiving this statute determining is enti- point properly whether Greene here, through employment dispute services which bearing tled to receive on the has no (2006), 256J.10 is Minn.Stat. can members where Indian tribal concerns general eligibility require- relates to the which employment services. access MFIP there is no Because ments for MFIP benefits. ployment services from the Indian tribe or regarding any requirement that County. 4, But section actually members employment use tribal any language not contain that does ex- services they once are referred to the pressly grants to members either reject tribe. argument. We Greene’s right receiving employment to decline Even if there were some silence in the through right Tribe or the to statute that an ambiguity, creates we receive County. those services would defer to the Commissioner’s inter The dissent does not reference lan- pretation statute. MFIP is a com guage section to sup- plex regulatory requires scheme that port statutory its interpretation. The expertise technical of the Commissioner to plain language of the statute not ex- does interpret and administer. In See re Cities pressly grant right or retain a to select Maple Annandale Lake & NPDES/SDS whether the tribal member receives em- Issuance, Permit 731 N.W.2d 523-24 ployment through either the tribe (Minn.2007); Nat’l Cable & Tele cf. county. legislature or Had the intend- Servs., comms. X Ass’n v. Brand Internet ed to a tribal member with the 967, 1002-03, 545 U.S. 125 S.Ct. right to select where the individual would (2005) L.Ed.2d 820 (supporting deference services, receive it would have to administrative agencies, particularly expressly provided right. that Id. technical, subject where the matter is com plex, dynamic). and

Further, based on our review of the 256J, chapter statute and we conclude that According Commissioner, to the legislature very was careful in setting mandatory provision referral allows tribes eligibility requirements forth the for indi- provide culturally appropriate services benefits, viduals to receive MFIP to tribal promotes members and tribal sov rights individual’s under the statute. We Thus, ereignty. it ensures the success of chapter have reviewed entirety 256J in its services programs. language indicating find no interpretation Commissioner’s is a statutory right Greene has the to select longstanding interpretation of the statuto where she receives services. ry language that dates back to at least statutory express Absent language provid- Annandale, 1994. See 731 N.W.2d at 514 ing that tribal members have right (noting that agency’s we defer to an inter services from a source pretation language when the ambiguous is tribe, other than the it not our proper and “when the agency’s interpretation is function to a right add such into the stat- one of long standing”). In interpreting See, ute. e.g., Reiter v. Kiffmeyer, 721 almost identical language in the former (Minn.2006) N.W.2d (stating statute, AFDC the Commissioner deter “we not provision read into a statute a mined that eligible tribal members were legislature omitted, has purpose- either required to use tribal employment ser ly or inadvertently”). 256.736, vices. See Minn.Stat. essentially 18(Z)(1990) 1997) admits that the (repealed (providing that statute does not expressly grant her the “Indian tribe AFDC right to select where employ she receives residing in the service area of an services, ment argues but that the silence Indian operating tribe employment and preserves right the statute her opt training services agreement under an *10 Greene, out. According to right opt the to the commissioner must be by referred out is implied silence in the statute county agencies in the service area to the provide employment state training ment with the to and employment Indian tribe for members, eligible to tribal the services services”).6 providing for responsibility tribe has the right the Also, a tribal member granting 256J.645, § those services. See Minn.Stat. runs mandatory referral of the opt to out 256J.315 does Although subd. 2. section legis- that the contrary presumption to the duties,” the “sharing the of MFIP discuss the interest public to favor lature “intends requires also counties to “encour- statute Minn. any private interest.” against as assume duties governments tribal to age 645.17(5) Clearly, pub- the § Stat. added.) (Emphasis to MFIP.” related sovereignty tribal promoting lic of interest con- grant When it entered reservation ser- culturally appropriate providing and tract, duty pro- to the Tribe assumed must favored through the tribe be thus, services; it employment vide MFIP interest of Greene. private over grant contract and entered the reservation and Chippewa Tribe Amici Minnesota County in no further for the there is role Ojibwe support Lake Band Leech employment services with the connection interpretation of the stat- Commissioner’s beyond statutory component of MFIP to right not have the ute that Greene does eligible to Indian tribal requirement refer employment ser- where she receives select Tribe. See Minn.Stat. members they always treat- They “have vices. state id., 256J.645, 4; § subd. see also subd. under of services provision ed the opera- (requiring the tribe to “coordinate mandatory, both as agreements the MFIP agen- county its program tion of with and for tribal members.” for the [Tribe] programs and cy” and other services county).7 that Minn.Stat. suggests The dissent requires

§ counties and tribes reasons, 256J.315 that For we conclude these ser- provision employment 256J.645, requires share the MinmStat. required develop be referred to eligible are tribal members vices. Counties employment ser- services employment training and Tribe to receive provide re- that tribal members contemplates Minn.Stat. vices under through the employment services agree- into an ceive enters but once the tribe present- no relevance to the issues interpreted statute has this statute 6. The Commissioner eligible acknowledges that un- requiring counties to refer ed here. The dissent as circumstances, employment tribe for members der these Dep't program. Minn. AFDC See agen- under the "requires Servs., Sec., Dep’t Human Minn. Econ. members to their tribes cies to refer tribal 94-9B, # Bulletin Instructional Referral of of this employment In the face services.” Receiving Aid to Families Indians American county has no obli- language, referral (AFDC)or Minnesota Dependent Children with a gation (MFIP) Family Program Case Man- Investment employment service choice of different Opportu- Reservation Job agement to Tribal or fact, obligation would such an viders. In (JOBS)fProjectSTRIDE Basic Skills nities and statutory obligation county’s with the conflict 5, § IV.B Programs Northern Minnesota em- to the tribe for to refer tribal members 1994). (Dec. 30, Moreover, has not ployment services. obligation to argued the Tribe has suggests that Greene has 7. The dissent also employment ser- provide her with choice right to receive argued providers, has not vice and she gener- County, because counties provide her with a choice failed to the Tribe partici- ally required make available to are simply providers. She service pants at least two the choice of to use the argues not have that she should training providers. See Minn. service providers. Tribe’s service disagree. We This subd. 8. Stat. *11 724 Accordingly, MFIP not grant

Tribe.8 does related to the distance from her home to any right to to tribal members select employment the nearest tribal services lo- they whether services cation that good constitute cause under the or county. through the tribe statute. The disputes Commissioner her contention. But party presented neither not statutory But that end our does and, good evidence on the cause issue analysis. we un Although conclude that therefore, it was not considered below. 256J.645, § der Minn.Stat. subd. The record before us indicates that Greene given has not legislature did not to participate want in employment they where right select receive em through Tribe, gave services but no services, ployment tribal members do have declining reason to do so. On this right 256J.57, § under Minn.Stat. record, Greene has not a showing made of 1(a), good to show cause for failing “good cause” under section 256J.57. in participate services as Therefore, the County properly sanctioned required by program. the MFIP See also failing Greene for to comply with the em- § 1 MinmStat. (providing ployment requirements under that a participant comply who fails to MFIP. requirements subject “shall be to a sanction,” participant unless the can show cause”). “good A agency may not II.

impose a sanction “if it determines that the We next consider Greene’s claim that participant good has for failing” cause § deprives participate equal her of protection under the United the tribe. Minn.Stat. States and Minnesota Constitutions. The provides types subd. 1. The statute of parties sharply disagree as to the proper cause,” “good including the in individual’s standard review. ability necessary to secure transportation, participation the individual’s acceptable The constitutionality a statute activities, documented, work and other question of law we review de novo. verifiable impediments compliance be Enters., Irongate Inc. v. County St. yond Thus, the individual’s control. Id. a Louis, (Minn.2007). 736 N.W.2d right member has the good show presume “We statutes to be constitutional cause avoid a sanction pro under the and exercise the power to declare a statute gram. unconstitutional with caution extreme suggests for the only absolutely first time on necessary.” when ILHC of appeal that transportation she had Eagan, Dakota, issues LLC acknowledge "cash, We that states Minnesota, regulations TANF federal payments, as grants, certify, vouchers, such as must and other forms of de- benefits among things: other signed family's ongoing to meet a basic provide [T]he State will each of an member 260.31(a)(1) (2007). needs.” 45 C.F.R. tribe, Indian iswho domiciled in the State regulations specifically exclude services eligible and is not for assistance under a "employment-related such as services that do family plan assistance under section not basic support” economic from the equitable title with of this access to definition "assistance.” Id. program assistance under State funded Therefore, 260.31(b)(6). this statute has no part provid- under this attributable to funds bearing provision ser- byed the Federal Government. . vices. 602(a)(5). 42 U.S.C The term "assis tance,” however, narrowly is defined

725 necessary a (internal reasonably to further (Minn.2005) 412, quo- 421 N.W.2d omitted). Hen compelling governmental chal- interest.” party marks tation 889, constitutionality Perry, bears nepin County v. 561 N.W.2d a statute’s lenging (Minn.1997). statute establishing that the If 7 a constitutional the burden of 897 n. a reasonable beyond suspect unconstitutional involve either a challenge is does not Bitzan & rel. v. ex Gluba right, doubt. Gluba or we a fundamental classification 713, 719 Masonry, 735 N.W.2d using Ohren challenge a rational basis review (Minn.2007). Gluba, 735 N.W.2d 719. standard. to the Amendment The Fourteenth arguments Greene makes two that guarantees States Constitution United that her claim supporting its any person within “deny to no state will 4, subject strict of the equal protection jurisdiction scrutiny. argues that the statute bur She Const, XIV, § 1. The amend. laws.” U.S. right to travel and dens her fundamental guarantees also Constitution Minnesota suspect a racial the statute involves shall be of this state member “[n]o classification. any of the deprived of or disenfranchised citizen any secured rights privileges or Right A. Fundamental land or thereof, the law of the by unless Const, Minn. peers.” of his judgment argues that Minn.Stat. 1, that “[b]oth have § 2. observed

art. We 4, right to her burdens analyzed under been clauses have to travel is a fundamen right travel.9 The man- begin with principles same Constitution. right tal under the U.S. individuals similarly all situated date 198, 200 Steffen, 504 N.W.2d Mitchell v. alike, only invidious but treated shall be 489, Roe, (Minn.1993); 526 U.S. Saenz v. constitutionally is deemed discrimination 500, 502, 143 L.Ed.2d 689 119 S.Ct. Anoka, v. Kolton offensive.” “right to travel” em that the (explaining (internal (Minn.2002) 403, 411 645 N.W.2d (1) of a citizen of one state right braces omitted). marks quotation (2) state; “the leave another to enter and visitor right as welcome be treated whether must determine We tem unfriendly alien” when than an rather rational basis re scrutiny or apply strict (3) state; and present in another porarily claim. equal protection to Greene’s view to the newly arrived citizen right N.W.2d Kiffmeyer, 659 Erlandson v. See enjoyed immunities privileges same (Minn.2003). apply strict We 733 state). In same citizens of the other classifi scrutiny legislatively-created to a Saenz, concluded that Supreme Court suspect classification that involves cation maximum limiting the statute a California right. Cas. Bituminous or fundamental newly arrived available Swanson, TAUF benefits 289 341 N.W.2d Corp. v. to travel. right violated (Minn.1983). residents scrutiny applies, If strict precedent, Supreme Court “narrowly Consistent tailored must be classification any (Minn.2002). take We are entitled to has moved to strike The Commissioner require. justice may right-to-travel argument from Greene’s brief the interests action as argu- waived this ground that Greene We address Civ.App. on the P. 103.04. R. Minn. stage of the by failing raise it at argument ment inter- right-to-travel in the Greene’s Although appeal. we proceedings Therefore, before this deny we the Com- justice. ests issues raised typically decline to consider argument to strike the motion missioner’s appeal, is not an "iron- this the first time Greene’s brief. from Putz, N.W.2d clad rule." Putz Mancari, we have characterized the fundamental 535, 554, Morton v. 417 U.S. *13 right migration 2474, right to travel as a S.Ct. 41 from 290 L.Ed.2d Mitchell, state to state. 504 at N.W.2d In the seminal case Morton v. Man- 201; v. Clayton Kiffmeyer, see also 688 cari, Supreme United States Court (Minn.2004) 117, 127 (indicating N.W.2d considered constitutionality of an em- right the fundamental travel is a ployment for preference qualified Indians travel). right Essentially, to interstate within the Bureau of (BIA), Indian Affairs argues scrutiny Greene that strict should authorized Reorganization Indian apply requiring because her to travel to 537, 417 Act. U.S. at 94 S.Ct. 2474. The the closest tribal services lo Court held that prefer- cation—which she claims is farther from ence on based in a membership recognized her home than county employ the closest political Indian a tribe is classification sub- ment services location—burdens her right ject to rational basis review. Id. at 553- to travel. Because interstate travel is not 55, 94 S.Ct. 2474. The explained Court here, at issue we conclude that Greene’s that resolution of the issue “turns on the right argument to travel lacks merit. unique legal status of Indian tribes under upon federal law and plenary power Further, welfare benefits are not Congress, on history based a of treaties a right fundamental and “neither the State and the assumption ‘guardian-ward’ aof nor any Federal Government is under sort status, legislate on federally behalf of obligation guarantee constitutional recognized 551, Indian tribes.” Id. at 94 minimum support.” levels of Lavine S.Ct. 2474. The Court distinguished be- Milne, 577, 9, 424 U.S. n. 96 S.Ct. political tween classifications, and racial 1010, (1976). Congress 47 L.Ed.2d 249 stating: specifically also provided that PRWORA preference is not directed towards a “shall interpreted any not be to entitle “racial” group “Indians”; consisting of family individual or to assistance under applies only instead it to members of program State funded under this “federally recognized” tribes. op- This 601(b) (2000). part.” 42 U.S.C. There erates to many exclude individuals who fore, this case does not involve a funda racially are to be classified as “Indians.” mental right. sense, In this preference political rather than in racial nature. Suspect B. Classification 24, Id. at 553 n. Thus, S.Ct. 2474. political nature of the classification was argues that Minn.Stat. based on the individual’s membership § 256J.645, a suspect involves quasi-sovereign political entity, rather than classification. The classification Minn. possibility that the individual could Stat. consists of identi racially be classified as American Indi- fied members of federally recognized an. Id. 94 S.Ct. 2474. tribe, who reside in the service area of operates tribe that an employment Although ser Mancari considered a chal- program agreement under an lenge ato classification contained a fed- the state. A law that differentiates based eral law and unique relied on the obli- on race suspect involves a gation classification. between Congress federally Harhut, (Minn. In re 385 N.W.2d recognized Indian tribes under the trust 1986). But doctrine, when a classification is merely state laws also fall can under the political, apply we rational basis review. trust doctrine purposes equal protec- ficient, culturally-ap- comprehensive, and ap Generally, courts have analysis. tion Be- to tribal members.” propriate to state laws review rational basis plied bene self-governance, purpose of the statute is cause promote members, or reflect implement congressional policy or fit tribal further the of tribal Cohen, Cohen’s Felix S. laws. self-governance, federal we conclude the clas- Law Federal Indian Handbook than political sification is rather racial. see, (2005ed.); e.g., Wash § 14.03[2][b][iii] *14 Tribes Bands & v. ington conclude that rational ba We also of Confederated 463, Nation, 439 U.S. Indian the Yakima this case appropriate review is because sis (1979) 740, 740 500-01, L.Ed.2d 99 S.Ct. 58 agreement intergovernmental involves an law establish Washington state (upholding is and the Tribe that between the state lands over reservation jurisdiction ing Greene policy. with federal consistent legislating was that the state the basis and the dispute not that the state does in by Congress authority granted under an right to enter into Tribe have the over Indi power its plenary of the exercise employ provision of agreement for the affairs); Cal. Grand Artichoke Joe’s an As the ment services the Tribe. Alaska (9th 712, Norton, 732 353 F.3d v. Casino recognized, “the has state Supreme Court Cir.2003) constitutionality (upholding dealing latitude in with has considerable Califor gaming compacts between of tribal inter recognized as to matters of tribes tribes); federally recognized Indian nia and governmental concern when the secting v. Stores Ur N.Y. Ass’n Convenience of rationally promote legiti actions state’s 280, bach, 204, 699 677 N.Y.S.2d 92 N.Y.2d proprietary or governmental mate mutual (1998) 904, (concluding 908 N.E.2d Slope North Bor Malabed v. interests.” the tax laws failure to enforce New York’s (Alaska 2003). 416, n. ough, 70 P.3d 426 51 to non-Indians sales on-reservation against can be dis- argues that Greene Mancari a form of race-based not constitute does it involved a ground on the tinguished discrimination, reasoning that the state Indians, require- true but or benefit policies that reflect may adopt laws and designed to read ment that she laws effectuate federal a hardship Indi creates jurisdiction over the Tribe just allocation of ans). her access to benefits. and denies her a that Mancari involved is correct anoth- simply “not MFIP statute is for In- promotional preference hiring Joe’s, law,” 353 F.3d at Artichoke er state express- has Court Supreme But the dians. 733, response to was a direct but rather “dis- “preferences” and both ly sanctioned of enactment government’s the federal “directly Indian promot[e] abilities” opportu- By giving tribes PRWORA. United self-government.” interests programs, own TANF nity operate their 646, Antelope, 430 U.S. States step major widely viewed as TANF (1977). For L.Ed.2d 701 S.Ct. Similar- self-governance. forward has held that Supreme Court example, the recognized federally allows ly, MFIP federally recognized tribe members of aspects of Minnesota’s to administer tribes state to Montana be denied access could amici According to TANF program. adoption in connection with courts Leech Tribe and Chippewa Minnesota Fisher on the reservation. ceeding arising agree- the MFIP Ojibwe, Lake Band of Jud. Dist. the Sixteenth v. Dist. Ct. partnerships ment and other state-tribe 390-91, Mont., 96 S.Ct. 424 U.S. support sovereignty” “encourage though the Even of “ef- 47 L.Ed.2d delivery responsibility for the being plaintiffs were denied a specifically Indian bene- MFIP provides a mechanism to non-Indians, privilege or available to fit avoid sanctions for comply failure to rejected Court their Supreme claims program requirements recipi- because the discrimination, reasoning: racial ent is unable to necessary transpor- secure jurisdiction tation. See The exclusive of the Tribal 1(5). Court not derive from the does race rather plaintiff quasi- but from the Greene next argues that Mancari is dis- Chey- of the sovereign status Northern tinguishable ground on the that as a resi- enne under federal law. More- Tribe dent of County, Aitkin she is entitled to over, jurisdictional if holding even oc- receive MFIP casionally denying results an Indian through the County like other plaintiff a forum to. which a non-Indian resident. She relies on v. Com- Jefferson access, disparate has such treatment Revenue, missioner 631 N.W.2d 391 *15 justified the Indian is because it is in- (Minn.2001), support argument. to her In tended to benefit the class of which he is Jefferson, plaintiffs, the Indian who were furthering by congres- a member enrolled federally members in a recognized policy self-government. sional of Indian residing reservation, tribe off the argued Mancari, (citing 551-55, 417

Id. U.S. at imposing that the state’s income tax on 2474). Therefore, if requiring S.Ct. even payments plaintiffs through received Greene to receive gaming operations authorized of their tribe through the could be Tribe characterized rights violated their equal to protection. a hardship as in her individual circum- 394, Id. at plaintiffs 397. The argued that stances, hardship that would not convert “an unlawful racial classification exists be- political classification into a racial clas- cause the State Minnesota differentiates sification when the classification benefits between those Indians who reside on the as a* whole and Tribe furthers the state, reservation within the and those In- policy self-government. of Indian dians who reside off the reservation within

Further, the state.” Id. at rejected Greene’s claim of 397. We hard ship unsupported by plaintiffs’ equal protection argument record and on ignores of the aspects statutory ground “[b]y MFIP that taxing Indians who designed scheme that are live inequi country, avoid outside Indian the state is not singling table results. At the race, administrative hear them out on based but is ing at challenged which Greene treating the reduc them every like other individual benefits, monthly tion of her MFIP taxing jurisdiction.” she within its Id. Based presented Also, hardship.10 decision, no evidence of that, on this argues Greene if the appeal, 10. On alleged Greene for the first that tribal service employees travel to meet time that because the distance from her home participants, recipients that may MFIP to the nearest tribal services lo- choose, anywhere they look for work and that greater cation is than the distance from her Aitkin work-seeking facility op- has a home to county employment the nearest ser- by erated the Northeastern Minnesota Office location, disadvantaged she is Training open any person Job that is mandatory Essentially, referral. Greene is ar- looking job.” for But repre- none of these guing requiring that employ- her to receive and, part sentations are of the record there- ment inequitable the Tribe is fore, Therefore, properly are not before us. because of this difference in distance. The we do not might consider how these factors asserts, however, Commissioner that had equal affect the protec- resolution Greene’s presented hardship, evidence of tion claim. state "would have offered evidence to show (Minn.2002). Anoka, reside 645 N.W.2d citizens who tax Indian may state test, the deter- the federal court reservation, should Under then state off the challenged classification employment mines whether MFIP required be it legitimate purpose” has “a and whether citizens on those Indian services to for the lawmakers be- citizens. was “reasonable as non-Indian basis same challenged classifica- lieve use of the not involve did disagree. We Jefferson W. promote purpose.” tion would & benefits scheme state comprehensive Equaliza- Bd. S. Ins. Co. State Life to state tribes with access provides tion, 101 S.Ct. 451 U.S. state implement federal funds to L.Ed.2d 514 The their members. grams for and their statutory benefits tribes scheme test, we Under the Minnesota greater by providing tribes with require that: and en- self-government opportunities (1) separate The which distinctions employment services abling tribes to offer within the classification those included of their members to the needs tailored mani- must not be from those excluded Moreover, no the reservation. and off arbitrary or fanciful must be festly but denied have been MFIP benefits substantial, thereby provid- genuine and benefits county pays cash Greene. a natural and reasonable basis ing many aspects other implements *16 justify legislation adapted peculiar at issue statutory provision The MFIP. (2) needs; the and classifica- conditions can designates where Greene simply here to the genuine or relevant tion must be Because services. access law; that there must purpose of the federally recog- a member of a Greene is the an evident connection between be ser- provides employment nized tribe to the class peculiar needs distinctive area of the in the service vices and lives (3) remedy; and the prescribed and the Tribe, requires statute her to must purpose of the statute be one Tribe, rather through the those services attempt legitimately can the state county. than achieve. Therefore, the statuto- conclude that we 886, Russell, 477 N.W.2d v. State belong- ry of tribal members classification (citations omitted). (Minn.1991) “key federally recognized tribe and ing to a is that the two tests distinction” between political area is a in tribal service living ‘we have been the Minnesota test “under Be- a racial classification. rather than basis to unwilling to a rational hypothesize Minn. political classification cause classification, defer as the more justify 256J.645, suspect is not a § Stat. requires.’” State ential federal standard purposes equal protec- of classification (Minn. Garcia, 294, 299 683 N.W.2d tion, basis review apply we rational 889). 2004) Russell, at (quoting 477 N.W.2d claim. Greene’s “Instead, required reasonable have we actual, just and not connection between III. theoretical, challenged effect of Finally, whether we address statutory goals.” and the classification § in Minn.Stat. classification Russell, at 477 N.W.2d rational basis test satisfies the case, of the resolution Greene’s In this United States and Minnesota under the depend not does equal protection claim two ra applied We have Constitutions. ba- of the rational upon which formulation tests. Kolton v. tional basis Therefore, applies. sis apply test we the distinctions are relevant to the test, Minnesota rational basis which is “a legislative goals providing culturally ap stringent more of review.” standard Rus- propriate tribal members and sell, 477 N.W.2d at 889. promoting self-government. See Minn.Stat. 256J.315 (requiring

First, we consider whether the distinc agencies “cooperate with govern tions in Minn.Stat. are implementation ments MFIP to substantial, “genuine thereby provid and program ensure that the special meets the ing justi a natural and basis to reasonable persons needs of living Indian reserva fy legislation adapted to peculiar condi tions”). The statute enables pro tribes to Russell, and tions needs.” N.W.2d culturally vide programs relevant and ser 888. The classification at issue con here vices to all living members in proximity to sists of “Indian tribal members By the reservation. giving tribes the and residing benefits the service funds and flexibility develop ad area an Indian and operating tribe employ minister their own TANF employment ment under agreement services programs, section 256J.645 also commissioner.” promotes self-government. subd. 4. We conclude that the Cf. Mancari, legitimate. distinctions in statute 477 U.S. at are 94 S.Ct. 2474 (upholding “plenary constitutionality Tribes have power exclusive BIA em members,” ployment over preference their but a “employment tribe’s authori as an ty over reasonably another Indian criterion designed tribe to further Cohen, non-Indians is limited. See the cause of self-government Indian 4.01[l][b], supra, Further, at 210. ex to make the BIA responsive more to the tending tribe’s service area outside the needs of its constituent groups”). Fur ther, boundaries of the reservation is well ac requirement the referral assures the *17 Mancari, cepted In under federal law. viability and success of the pro Supreme Court “[ljiterally noted that gram. every piece legislation dealing [federal] Finally, we consider whether the pur with Indian tribes and reservations ... pose of the statute is “one that the state single[s] special out for treatment a con Russell, legitimately can attempt to achieve.” stituency of tribal living Indians on or near 77 N.W.2d at 888. The goals 4 Mancari, reservations.” Morton v. 417 providing culturally appropriate services 535, 552, 2474, U.S. 94 S.Ct. 41 L.Ed.2d and promoting self-government are (1974) added). 290 (emphasis Under legitimate governmental interests. See PRWORA, operating tribes tribal TANF Mancari, at U.S. 94 S.Ct. 2474. programs have the discretion to define the And there is no claim here that the state tribal TANF service area to include lacks the authority to enter into an agree “near reservation” areas beyond and even ment with provide the Tribe to employ areas, “near reservation” long as as the ment services under MFIP. tribe has capacity the administrative to 286.75(e) serve such § areas. 45 C.F.R. We therefore conclude that the distinc- (2007); § see 42 U.S.C. 612. 256J.645, § tions Minn.Stat. subd. Second, satisfy we consider the equal protection whether the dis requirements tinctions “genuine section 256J.645 are both the and U.S. Minnesota Constitu- or relevant to purpose of the discussed, law.” tions. For the reasons Greene’s Russell, 477 N.W.2d 888. We equal protection conclude challenge fails. We af- 256J.645, Statutes subd. of Minnesota reduction the Commissioner’s firm (2006), allows the Commissioner of the MFIP benefits. Greene’s Department of Human Minnesota Services Affirmed. (Commissioner) designated or represen- (dis- BARRY, ANDERSON, agreements G. Justice to “enter with fed- tative into senting). recognized Indian tribes with a res- erally provide ervation in the state to MFIP disagree I with the

Although do not to of the employment services I re- analysis, majority’s constitutional caregivers Indian tribe and to other who majority’s stat- dissent from spectfully of the MFIP part are a tribal member’s utory holding In analysis. grant assistance unit.” In reservation (2006), prohibits 256J.645, State of Minne- contract executed receiving ser- from sota, Chippewa Minnesota Tribe County, majority through Aitkin vices agreed provide MFIP ser- reads an plain language ignores in the tribe’s service requirement into the Minnesota vices individuals exclusivity (MFIP) Program delivery stat- area. The statute at heart Family Investment 256J.645, plain lan- dispute I believe that the is section parties’ ute. Because to receive reads, of MFIP entitles Greene guage subd. which “Indian tribal mem- through Aitkin Coun- employment services residing benefits and bers MFIP of the the decision ty, I would reverse an oper- service area of Indian tribe appeals. court of agree- an ating employment services under be re- ment with the commissioner must “develop requires counties by county in the service agencies training ser- ferred for employment area to the Indian tribe designed put which is component added.) (Emphasis services.” path on the most direct participants employment.”1 Minn.Stat. unsubsidized is agree majority I with the that “must” 1(a) proper 645.44, term, mandatory see Minn.Stat. determining starting whether point (2006), applies but the mandate subd. 15a entitled to Greene is county agencies, not to members. not, Aitkin as requires Section believes, majority section their members to agencies to refer tribal *18 (2006), § 256J.10 subd. Minn.Stat. but services, there employment for but tribes eligible as “To be provides which follows: divesting provision corresponding is no MFIP, gen- the applicants must meet for right, granted their un- tribal members of in eligibility sections requirements eral MFIP, employment to services der 256J.15, property the limitations 256J.11 to hearing The refer- through their counties. 256J.20, and the income limita- in section 256J.645, correctly section interpreted ee Respondents in con- tions section 256J.21.” 4, as follows: subd. eligibility that satisfies the cede Greene duty upon benefits; imposes the statute While receipt MFIP requirements for of to tribal county to make referrals therefore, to the same em- she is entitled a participant when employment services participants services as are other ployment require- no is eligible, deemed there by statute. is specifically excluded unless " employment.” retaining training 'Employment means and services' 256J.49, are programs, and services that de- activities subd. obtaining participants signed to assist an eligible participant “assumption” that utilize this language ment into the stat- ute. simply that service because or she [he Likewise, the that eligible. fact

is] 256J.645, My that conclusion section program employment services prohibit subd. does not tribal members provide eligible partici- refuse to cannot receiving employment from services services, pants does not turn create a by their counties is supported oth- an eligible participant that requirement provisions. MFIP er Minnesota Statutes [Greene], utilize those services. like (2006), example, requires 256J.315 for County, citizen of Aitkin should be able county governments and tribal cooper- to county employment to access services. implementation ate in the of MFIP as provided has not Because follows: her, there has

those services to been county agency cooperate The must with comply to and any failure sanction [n]o governments implementa- on that basis should be reversed. tion of MFIP to pro- ensure gram meets the special per- needs majority The claims that Greene’s argu- living sons on Indian reservations. is premised reading right ment include, cooperation This must hut is “opt into the out” silence of section to, sharing not limited MFIP 256J.645, usage 4. The of the subd. including initial duties screening, orien- phrase out” “opt majority’s reflects assessments, tation, provision interpret entirety. MFIP in failure its employment training services. The is not whether is entitled issue county agency The encourage shall trib- 256J.645, out” of section “opt governments al to assume duties related specifically but whether the statute ex- to MFIP and cooperatively shall work her from cludes same em- responsi- tribes that have assumed ployment partici- as other MFIP services portion for bility the MFIP pants. gram to expand responsibilities, if expansion is requested majority cites Minn.Stat. tribe. 256J.645, (2006), proposi- added.) (Emphasis The requirement tion the responsibility that tribes assume county agencies governments and tribal providing services provision share services tribal members when the tribes enter into majority’s interpretation belies of sec- agreements with the tion subd. 4. Commissioner. While it true that sec- tion requires Furthermore, tribes MinmStat.

“agree responsibilities provid- (2006), to fulfill the provides subd. 8 that counties are ed under the compo- generally required participants *19 nent regarding operation of MFIP a choice between at least employment two services,” training MFIP statute providers: service requirement contains no that tribes “as- Each county, group or of counties work- duty providing sume” the MFIP em- ing cooperatively, shall make available to ployment services to exclusion coun- participants the choice at least two 256J.645, ties. Section sets forth training provid- service do, what required ..., tribes are but it in no except ers in counties utilizing way limits the services to which tribal workforce centers that multiple use em- I services, are entitled. would not ployment read and training offer ANDERSON, H., (dissenting). a J. colla- PAUL options under

multiple services that effort and can document borative Barry join I in the dissent of Justice G. among employ- have choice participants Anderson. designed to training ment and needs.2 specialized meet PAGE, (dissenting). Justice 256J.50, section I I exception respectfully join An to the dissent. While Jus- county dissent, “a Barry where tice G. I write requirement applies Anderson’s separately my disagreement note agree- service explains ... [biennial analysis em- the court’s of the constitutional of alternative provision that the ment] is, There howev- issues Greene. training providers raised service ployment er, no need for extensive discussion hardship for the result in financial would disagreement because this case can be subd. 9 county.” Minn.Stat. statutory grounds. resolved on It participants fact that MFIP enough say that the that a citizen notion entitled to choose between generally are state, nation, this of this can disen- be providers service least two of his politi- franchised the basis or her not intend legislature that the did suggests stunning. cal classification is members from exclude tribal coun- through their employment services presumption should be

ties. The fewer—are available to options

more —not participants. legislature prohibit intended to

Had receiving employ

tribal members from counties, it through ment services their In re Petition for DISCIPLINARY AC- not, so. It and it is not could have said did YANG, a Su Minneso- TION AGAINST exclusivity to read an re prerogative our Attorney, Registration No. 316003. ta quirement into Minn.Stat. Kiffmeyer, 4. See Reiter No. A08-455. (Minn.2006) (“[W]e will N.W.2d Minnesota. Supreme Court of provision that the not read into a statute omitted, purposely legislature Sept. has either Accordingly, I would inadvertently.”). or ORDER appeals decision of the court of reverse the Lawyers The Director of the Office of language of MFIP plain and hold that the peti- Responsibility has filed Professional ser entitles Greene alleging action disciplinary tion for County. Aitkin Yang profession- respondent committed Su warranting public discipline, al misconduct PAGE, (dissenting). J. namely, signatures par- of one forging Barry ty matter and that join I of Justice G. in marital dissolution the dissent attorney, obtaining false notariza- of her Anderson. Likewise, may opt *20 providers. A service (2006), provi- states as follows: "Unless the vide on its own as one of these apply, must sions of subdivision viders.” training at least select two