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Does state smoking ban apply to bar on tribal land?

By Martiga Lohn

Associated Press

ST. PAUL — The force of Minnesota’s statewide smoking ban is unclear in the only bar in Callaway, a city of 200 on the White Earth Indian Reservation.

City officials say they’re getting conflicting information from tribal and state authorities about the status of their on-and-off-sale municipal liquor store, which serves as the town’s bar and offers tribally regulated gaming.

For now, lighting up is still allowed in the establishment frequented by smokers.

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"We just don’t know what we should do," City Clerk Shelly Dillon said on Friday.

The situation is apparently unique.

"It is almost a law school examination question, that the competing jurisdiction of the tribe and the state is highly unusual in this particular situation," said Mark Jarboe, who heads Indian law at the Minneapolis law firm of Dorsey & Whitney.

The city is a subdivision of the state, which allows small cities to operate municipal liquor stores. But the presence of bingo machines and other gambling gives the tribe some pull.

Days before the statewide smoking ban took effect in Minnesota bars, restaurants and other indoor workplaces on Oct. 1, Callaway officials got a letter from a tribal attorney saying that the liquor store shouldn’t have to follow the smoking ban. The store — indeed, the whole town — sits within the reservation.

But now state health officials say the ban should apply. That’s because the store belongs to the city, not to the tribe or a tribal member, said Tom Hogan, a manager in the Minnesota Health Department’s environmental division. Hogan said he’s waiting for a formal opinion from the attorney general’s office before taking steps to enforce the ban.

White Earth tribal attorney Joseph Plummer didn’t immediately return a phone message.

State civil laws such as the smoking ban generally don’t apply to Indians on Indian reservations, where the federal government recognizes tribal rights over tribal lands. Since the Minnesota smoking ban started, Indian casinos have become the last indoor refuges for smokers.

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Of Minnesota’s 255 municipal liquor stores, Callaway’s might be the only one to both sit on a reservation and still allow smoking. Two other municipal stores in White Earth — Mahnomen and Ogema — don’t allow smoking, Dillon said. Just outside the Leech Lake reservation, a city-owned spirits store in Walker is following the smoking ban. A review of the state’s municipal liquor stores turned up no others on reservations.

In Mahnomen County, which sits entirely within the White Earth reservation, Sheriff Doug Krier said the smoking ban is in force at all establishments except the tribally owned Shooting Star Casino and a tribal sports complex. That’s based on the county attorney’s interpretation of the state’s jurisdiction.

Callaway remains in limbo while city officials wait for higher authorities to sort things out.

"That’s part of being on the reservation and being a city," Dillon said. "We have to make sure we’re not blatantly disrespecting or breaking the rules on either side."

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