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LEGAL PERSPECTIVES WRITING NOTEBOOK Same-sex New tools video is focus for busy writers Page 2 in Telescope case Page 7

SAINT PAUL LEGAL LEDGER

January 7, 2019 MINNLAWYER.COM Vol. 92 No. 65 | $6.00 No attorney fees owed for subro recovery

By Barbara L. Jones [email protected]

An ERISA health insurer is not obliged to pay attorney fees to a plaintiff’s lawyer who recovered the insurer’s subrogation claim, the Court of Appeals ruled last week in O’Brien & Wolf v. South Central Electrical Workers’ Family Health Plan. The plan had not agreed to pay attorney fees and a contract implied in law had not been established, the court said. “Because justice and fairness do not obligate the Plan to pay the firm for the legal services it provided [the injured plaintiff], no implied-in-law contract existed between the law firm and the Plan,” said the court in an opinion written by Judge Kevin Ross. The full subrogation payment of STAFF PHOTO: KEVIN FEATHERLY $152,739 was paid to the plan. The Paul Schnell, at the lectern, addresses a crowd after being introduced as the state’s new corrections commissioner on Dec. 20. At left, an amused Gov.-elect and Lt. Gov. look on. firm had claimed a one-third con- tingent fee, or $50,913. The firm has not decided whether to seek further review, said partner Daniel Heuel. Attorneys for the ERISA plan could Walz touts corrections head’s style not be reached for comment. It is not uncommon for plaintiff’s leadership style. sheriff and his law enforcement career attorneys to assist a subrogee and, at Paul Schnell makes “I think that it’s Paul’s collabora- took off. least for state plans, receive a fee for tive approach to this,” Walz said as he During the commissioner search pro- doing so. The court said it expressed leap from police chief introduced Schnell at a Dec. 20 press cess, Walz said, stakeholders repeatedly no view on such practices under to prison boss conference inside a St. Paul school. said that Schnell has the leadership non-ERISA policies. Schnell, 57, has worked in law en- qualities needed to bridge the eth- By Kevin Featherly forcement for 20 years, including stints nic disparities among incarcerated Preemption undecided [email protected] as police chief over three suburban de- Minnesotans. The injured plaintiff, Travis partments. For 10 years before that, Native Americans, who comprise Schurhammer, was injured in a snow- Asked what qualifies his choice for he worked in community corrections, fewer than 2 percent of Minnesota’s mobile collision in 2014. He retained corrections commissioner to lead the including one job working with youth population, make up 10 percent of the state’s prison system, incoming DFL offenders at Carver County Court ERISA l Page 10 Gov. Tim Walz pointed to Paul Schnell’s Services. In 1993, he became a deputy Schnell l Page 26

The moral arc of Editor’s Note: This article draws from a vari- As European settler-colonists streamed into ety of books, magazines and articles. A full list of Minnesota, the Dakota had been squeezed into Politics of sources is available online. tiny reservations and pushed to the brink of starvation. Taliaferro came to see white men By Zac Farber like Govs. and Alexander the Past Staff Writer Ramsey as “knaves or fools” whose choices had driven the Dakota to armed conflict. The former Indian agent Lawrence Taliaferro “They were as children led to the slaughter, was living in in 1862 and 1863 no man seemed to care for them, and they be- SUBMITTED IMAGE: MINNESOTA HISTORICAL SOCIETY when the U.S. government executed 38 Dakota came desperate,” Taliaferro wrote in 1864. An oil painting of Indian agent prisoners of war and expelled the Taliaferro had always viewed Native nations Lawrence Taliaferro made around from their Minnesota homelands. paternalistically — persuading Dakota, 1830. Taliaferro helped pressure the Taliaferro had played a crucial role in the and Ho-Chunk leaders to sign away their ances- leaders of Upper Mississippi Valley seizure of Native American land in the Upper tral land rights out of the belief that they needed Native communities into signing a series of ruinous treaties with the Mississippi Valley, but in the two decades since to assimilate into Western society to survive. federal government in the 1820s his retirement, he’d found it increasingly diffi- and 1830s. cult to defend his government’s actions. Taliaferro l Page 8 8 | MINNESOTA LAWYER | January 7, 2019 | MINNLAWYER.COM

him to resign from the Army and accept Taliaferro a diplomatic post representing the fed- eral government to Native American Continued from page 1 nations. “Go home to your mother, and remain until you hear from me,” Monroe Yet his faith in his race’s superior- told him. ity was waning. He was appalled that The position of Indian agent was a government officials repeatedly broke large, amorphous and complicated job promises made to Native leaders about to give to a 24-year-old. He would be treaty payments and hunting rights, responsible for enforcing trade laws, and looked the other way as they were preempting conflict, acquiring land and shamelessly defrauded by fur traders. distributing annuities. Where Taliaferro had relied on persua- The job’s larger goal, as Taliaferro sion and gifts to rid Native people of understood it, would be twofold: To incul- their territory, his successors leaned on cate Native people with Western values coercion and violence. and to defend them against illegal ex- Taliaferro’s moral arc would never ploitation by whites. reach all the way to repentance; he With time, he’d realize that the U.S. never expressed regret for orchestrating government’s only true priority was as- exploitive treaties. But with Ramsey call- similation. ing for the Dakota to be exterminated, it proved impossible for him to ignore the Frontier justice ugly implications of western expansion. When Taliaferro arrived in July 1820 “It became plain to [my] mind, painful at the confluence of the Mississippi and as the bare idea was, that the final rulers St. Peter’s rivers, construction on Fort of this great and growing nation would Snelling was still underway. Across destroy it,” Taliaferro wrote. “O, white the water stood a trading post for the man, what degradation has your thirst . Five Dakota for gold brought upon the poor savage!” communities lived in the surrounding area. ‘Spirit and energy’ Just of the fort site, Taliaferro established the headquarters of the St. Taliaferro was the scion of a wealthy, Peter’s Indian Agency — a multi-room influential eastern Virginia family. His log council house, decorated with a uncle was a U.S. congressman and his prominent American flag and flanked father counted James Monroe as a per- by a handful of smaller buildings. For sonal friend. the next two decades, he would rarely Born in 1794 on a plantation in King venture far from this remote frontier George County, Taliaferro spent his compound. youth wandering the pastoral landscape, Dakota and Ojibwe people far outnum- his life made more than comfortable by bered whites in the Upper Mississippi the efforts of his family’s many slaves. Valley, and Taliaferro’s authority ema- At the outbreak of the , nated mostly from his ability, as he put Taliaferro’s mother enlisted him and his it, to “secure the confidence” of Native four grown brothers as volunteer mili- leaders. (For most of his career Taliaferro tiamen. was only officially responsible for the SUBMITTED IMAGE: INTERNET ARCHIVE BOOK IMAGES The exacting strictures of military life Dakota, but he worked informally with Lawrence Taliaferro established the headquarters of the St. Peter’s Indian Agency near in 1820. agreed with the 18-year-old Taliaferro. nations across the Upper Midwest.) Until his retirement in 1839, he served as the U.S. government’s official representative to, first, the Dakota He studiously obeyed his superiors and, Taliaferro launched a vaccination ini- and western Ojibwe people and, after 1826, just the Dakota. with Monroe’s help, earned an Army tiative and spent thousands of dollars self-governance and furthering colonial African American men and women. commission before his 20th birthday. of his own money on flour and meat for An ambitious, hard-working soldier, expansion. At Fort Snelling, he rented out his the poor. He hired a blacksmith to repair Instead, he blamed Natives’ plight slaves to soldiers even though slavery Taliaferro remembered his general — traps and guns. And he handed out gifts the future president William Henry entirely on corrupt fur company agents was technically illegal in the Upper of vermilion, tobacco, mirrors, whiskey and their “unfeeling, heartless course of Mississippi Valley. In 1836 Taliaferro Harrison — telling him, “You look young, and blankets, carefully awarding the sir, but I think you have spirit and en- oppression.” He denounced them as “of- earned a footnote in U.S. constitutional largest bounties to the most respected ficiously interested men who eat of their history by officiating the marriage of ergy.” Native elders. Taliaferro served in the Army’s re- dainties, wipe their mouths and say, ‘I Harriet Robinson, his former house slave, He also extended his influence have committed no sin.’” to . The Scotts later used their cruitment office in Chillicothe, , through kinship ties — by hiring Native and guarded prisoners in Frankfort, Taliaferro resolved to punish white residence in free territory as a legal basis and mixed-race staff at the Indian traders who charged Natives extortion- for their claim to liberty in the Supreme Kentucky, before he was ordered to the Agency and by fathering a child with the Niagara frontier, where he commanded ary prices or tricked them into signing Court case Scott v. Sandford. daughter of the Dakota leader Mahpiya fraudulent documents. Risking death Taliaferro, like most slaveowners a detachment and helped prepare for the Wicasta (Cloud Man). (Their métis threats, he suspended the licenses of of his time, was unopposed to punish- American invasion of Canada. daughter, Mary, was born in 1828, and the most deceitful traders and refused ing transgressions violently. One of his After the war, in July 1818, Taliaferro Taliaferro paid for her education.) to protect predatory lenders who were slaves, he remembered, received so harsh fell sick and was sent to the mineral Taliaferro prided himself as an im- assaulted as they tried to reclaim their a beating that “the Indians prayed the springs outside Bedford, Pennsylvania, partial, fair-minded upholder of the law. goods. agent to forbear.” And even after he set to recuperate. Upon his recovery, he rode “[I am] one that uniformly tried to Taliaferro’s crackdown on traders the last of his slaves free in 1842, he 140 miles by horseback to Washington to do his duty to God and his fellow man,” earned him numerous enemies. stopped short of renouncing the institu- meet with Monroe, who’d been sworn in he wrote, and am “determined to cause “How to get rid of me at this post,” tion of slavery. He described his decision as president the previous year. the Indian trade to be well conducted he wrote, “seems now the main object of Monroe praised Taliaferro, by then for their benefit on principles of equal to emancipate as “a solemn act not influ- Tom, Dick, and Harry — so that those a first lieutenant, for proving himself justice for all.” enced by any earthly powers.” who may come after me can the more “above his rank.” The president wanted Yet he only partially grasped how the In Taliaferro’s dealings with Native easily be bribed or threatened into si- basic economics of the were Americans, his reflexive white suprem- working to upend Native communi- lence and acquiesce in the plans on foot acy took a different form. He felt greater ties’ collectivist, consensus-based social to cheat and destroy the Indians.” pity for their suffering, but he was ulti- structure, and forcing them into material But his bravado had firm limits; he mately only willing to accept them as dependence on whites. wouldn’t defy his superiors. people to the extent that they adopted Bears, beavers, deer and other game When Taliaferro tried to limit the the habits and customs of his race. became increasingly scarce as a result quantity of trading posts in the region He never became fluent in the Dakota of overhunting, and the Dakota had to in 1824, he was countermanded by language, and he speculated in his auto- travel farther west each year to find Secretary of War John Calhoun, who or- biography about the inscrutable “savage food to eat or pelts to sell. Once John dered that sites be opened to “subserve heart,” asserting that God had given him Jacob Astor solidified a monopoly over the convenience of both the Indians and the power to “soften [it] and control it the Mississippi watershed, he was able the traders.” for good.” to depress the price of muskrats three- Taliaferro capitulated and the number To that end, he lectured Natives about fold and pay poverty wages to even the of trading posts increased from four to 13 the Christian Sabbath and helped funnel shrewdest Dakota hunters. “It would be within two years. money into missionary schools in an ef- better at once to knock us in the head fort, as he wrote, to “civilize, instruct and than to starve us to death,” said the The business of evangelize the benighted Indian.” leader Ta Oyate Duta Responding to the overhunting cri- (His Red Nation, also known as Little white supremacy sis triggered by the fur trade, Taliaferro SUBMITTED IMAGE: The Mdewakanton leader Ta Oyate Duta (His Red Crow). Taliaferro could be hardheaded in de- urged Native communities to adopt Nation, also known as ) once praised Tali- Taliaferro avoided interrogating the fending his principles, but at heart he European agricultural practices. Pushing aferro for his candor, telling him there was “no sugar role his extensive gift-giving had played was neither a rebel nor a reformist, and traditionally nomadic populations into in your mouth.” in subverting Native communities’ over his lifetime he enslaved twenty-one permanent settlements would make it MINNESOTA LAWYER | January 7, 2019 | MINNLAWYER.COM | 9

ground” along the Prairie du Chien line. the ceded territory sufficient for the con- A similar treaty was negotiated between sumption of their families,” Taliaferro the Dakota and the Ojibwe. wrote in a letter. “They say, ‘We shall be Taliaferro hoped these treaties would rendered desperate, and we must see our ease conflict between the nations, but children starve in our lodges unless we in fact they created a fierce competition soon get relief from the government.’” for limited resources and further under- By 1839, the treaty’s botched rollout mined cooperative relationships between had badly damaged Taliaferro’s credi- Native communities just as the fur trade bility with Dakota leaders. His relations was imploding. with traders were also deteriorating — to the point that one man broke into his Forcible negotiations bedroom and threatened him at gun- point. Taliaferro was frustrated that his Hated and isolated, Taliaferro an- treaties had failed to curb hostilities nounced his resignation. “I leave the or help Natives achieve economic in- whole nest [of] Indians and traders,” dependence, and he worried about the he wrote in his journal. “I am disgusted “rascality and frauds permitted by the with the life of an agent among such dis- treaty making power generally.” cordant materials and bad management But he felt that the only option for on the part of Congress.” Native leaders threatened by the en- croachment of whites was to sell even Taliaferro moved to Bedford, more of their birthright and live on the Pennsylvania, where he rejoined the proceeds. army as a quartermaster and served In three 1837 treaties, Taliaferro as county treasurer before his death in helped pressure Dakota, Ojibwe and Ho- 1871. Chunk leaders into ceding all their land east of the . A vexed legacy Taliaferro set the terms of the treaties In the decades following Taliaferro’s without consulting with Native leaders departure from the Indian Agency, the or considering their cultural understand- exploitation of Native communities by ing of land rights, and he had the hubris whites became starker. to imagine that his personal integrity The 1837 treaties prompted a wave would be enough to foil all “diabolical of settler-colonists to flood in from the plans.” While Taliaferro was successful in East, and by 1860 whites in Minnesota limiting the amount of treaty settle- outnumbered Natives 5 to 1. U.S. gov- ment money earmarked for traders, the ernment officials did little to defend structure of the deals deprived Native Natives’ treaty-protected hunting and fishing rights, and looked the other way SUBMITTED IMAGE: MINNESOTA HISTORICAL SOCIETY communities of autonomy and allowed Taliaferro drew this map of the Fort Snelling area in 1835. He included the St. Peter’s Indian Agency, the the U.S. government to manage annuity as they were extorted, defrauded and American Fur Company trading post and a number of Dakota villages — including the farming community payments and allocate large portions of otherwise abused. Taliaferro’s successors he helped Mahpiya Wicasta (Cloud Man) launch on the eastern shore of Bde Maka Ska (Lake Calhoun). The used negotiating tactics that amounted map is oriented roughly west. the money toward farming tools, mis- sionary schools and other westernizing to a thuggish legal banditry, with naked easier for missionaries to proselytize. and Taliaferro thought he knew best how initiatives. economic interests superseding even the At Taliaferro’s suggestion, Mahpiya to help Native communities adapt. He Influential mixed-race descendants of pretense of fair play. Wicasta established a farming village would serve as a mediator — explaining white men and Native women received Taliaferro had gone to great lengths to on the eastern shore of Bde Maka Ska to Native leaders the inevitability of ca- an outsized share of the payouts, and minimize the meddling of the fur-trade in August 1829. Taliaferro nudged the pitulation and appealing to his superiors one much-maligned clause gave $450 tycoon Henry Hastings Sibley in the project along by hiring consultants and for favorable terms and fair enforcement. per year for two decades to Taliaferro’s 1837 treaty negotiations. But by 1851, doling out seeds, draft animals and In 1824, Taliaferro took a group of interpreter, Scott Campbell. Sibley had ascended the ladder of politics metal tools. The Dakota took to calling Dakota, Ojibwe and Menominee leaders Brought to Washington by Taliaferro, — becoming the ’s him Maza Baksa (Iron Cutter), and by to Washington D.C., hoping to impress Dakota leaders felt they had little choice first congressional delegate — and he 1835 the hundred-member community on them the inexorable strength of the but to accept an offer of about $1 mil- helped dictate the terms of the Treaty of grew squash, potatoes, cabbage and corn. federal government. lion ($26 million in today’s dollars) for Traverse des . The Dakota people But Taliaferro faced setbacks in his The following year, at Prairie du their land, even though it was valued ended up with only $60,000 after forfeit- attempts to westernize “my little colony Chien, Taliaferro gathered a delegation at $1.6 million. The Dakota leader ing millions of acres of their land, while of Sioux agriculturalists.” To his conster- of hundreds of Native leaders and lis- Ehake told a U.S. official that while his traders took home more than $240,000. nation, the Dakota villagers delegated tened as his boss, the former explorer people were “naked, you are rich and Sibley himself pocketed $66,000. most of the cultivation work to women William Clark, browbeat them about the well clothed.” “I find that I Subsequent treaties went even and some chose to give away their sur- necessity of creating boundaries between have no claims to these further in impoverishing plus harvest to relatives. The village was their nations. “Your tribes do not know lands,” said Mazaman, and deracinating the abandoned in 1839 amid fears of conflict what belongs to them and your peoples a Wahpetunwan Dakota people. with the Ojibwe and promises of treaty thus follow the game into lands claimed leader. “I thought In his 1864 settlement payments from whites. by other tribes,” Clark said. I had but my autobiogra- While some Dakota leaders like The assembled delegates had no con- friends here say phy, Taliaferro Mahpiya Wicasta had been willing to cept of private land ownership and didn’t that I have not.” expressed re- experiment with the “white man’s way” see the value of borders. “In running During ne- vulsion at these as a path to political independence, their marks round our country or in giving it gotiations, cruel displays people were ultimately uninterested in to our enemies, it may make new distur- Taliaferro’s of greed. “The becoming farmers. On multiple occasions bances and breed new wars,” the Ojibwe superiors Indians finally in the 1830s, Dakota villagers sabotaged leader Noodin (the Wind) said. manipulated lost confidence in Taliaferro’s agricultural projects by kill- Yet, seeking peace, the Dakota, and misled the all white men, and ing the cows and oxen he gave them. Sauk and Meskwaki (Sac and Fox), Dakota. Tribal lead- well they might, in The larger processes of cultural con- Menominee, Ho-Chunk (Winnebago), ers emphasized the reference to Indian quest, however, could not so easily be and Bahkhoje (Ioway) peoples placed importance of retaining treaties, and their fulfill- deflected. their faith in Taliaferro and agreed to their hunting rights and ment,” he wrote. “The human establish what President Martin Van their ownership of the islands in heart seemed deceitful above all ‘Running marks round Buren called “a dividing line between the middle of the Mississippi, but their things and desperately wicked.” their respective countries.” demands weren’t included in the treaty, Yet Taliaferro smugly placed the our country’ The introduction of borders magnified and it appears they were deceived about blame on others. “But for the treaty of tensions between Native nations. The Taliaferro’s persistent campaign of the contents of the documents they 1857,” he wrote, “the Sioux bands of the charm, friendship and tribute led most Ojibwe tried to destroy survey markers signed. Dakota nation would have been a peace- of the region’s Native leaders to trust and one Dakota chief told Taliaferro, “We When they later complained, able and thriving people.” he had their best interests at heart. suffer more than [can] be well conceived.” Taliaferro told them (according to his Taliaferro was undeniably a blinkered, Between 1820 and 1831, he held more Though Native leaders had been diary) “to say nothing about islands self-justifying, often-callous bureaucrat than 200 “peace and friendship” coun- promised that the U.S. government did which had been sold nor the land — but who faithfully served an oppressive cils between the Dakota and the Ojibwe. not want their land, the treaty laid the leave the whites alone and [don’t] seek cause. But he was also a man of prin- “Since our Father came into our Nation, groundwork for their removal — the to disturb settlers.” ciple — leery of violence and willing to our young men have sense, and our wives boundaries established at Prairie du A staunch defender of the legal pro- defy social pressures in defense of his and children rest quiet,” the Dakota Chien provided a blueprint for future cess, Taliaferro partially attributed convictions. leader Black Dog said. land cessions. Dakota discontent over the treaty to the Ta Oyate Duta, the Dakota chief Taliaferro used this hard-earned In 1830 Taliaferro engineered a treaty “much ridiculous stuff infused into their who commanded fighters in the War of confidence to cajole Native leaders into in which the Dakota and the Sauk and minds.” But he also blamed the treaty’s signing a series of ruinous treaties. Meskwaki agreed to exchange their land poor reception on the U.S. Senate, which 1862, remembered Taliaferro’s tenure as Western civilization, with its logging between the Des Moines and Missouri delayed in ratifying the agreements for Indian agent wistfully. and farming and cities and cash economy, rivers for yearly annuity payments nearly nine months. “Since you left us a dark cloud has was marching toward the Mississippi, in order to create a “common hunting “There [is] no game to be found on hung over our nation,” he said.