McFarquhar: freedom fighter or attention addict?

Recent commentary in the Minnesota Reformer, Why tribal casinos are not subject to state COVID-19 restrictions, prompted us to look again at the travails of Lynd, Minnesota, dance studio and restaurant owner Larvita McFarquhar.

We must confess that we've only posted about her once, back in mid-December's  Small town MN freedom fighting restaurateur's anti-vaxx pals make us pause about her savvy (McFarquhar's most troubling anti-vaxxer pal is the disgraced British former physician Andrew Wakefield).

Angelique EagleWoman's opinion made us think back to these passages in an Alpha News report:

At a court hearing Wednesday, McFarquhar’s attorney, Nathan Hansen, argued that the governor’s executive order violates his client’s 14th Amendment rights to equal protection under the law, since restaurants and bars are still open on tribal lands but must close everywhere else. Additionally, Hansen argued that Public Law 280 provides the state with the authority to close down businesses on Indian reservations. . . .

“If this is the crisis that they say it is,” then the state should shut down bars and restaurants on tribal lands, said Hansen. . . .

According to Hansen, McFarquhar has decided to not comply with the court’s order “as an act of civil disobedience, as she believes it is unfair that bars and restaurants are open on Indian reservations while she is required to remain closed for inside service.”

Hansen stressed that he always advises his clients to comply with court orders. . . . 

While McFarquhar repeated her lament in other venues and videos about how she was not being treated fairly, it was more of the same. Unfortunately, the take on the situation the Lynd business woman took from her lawyer's pleadings was weak legal ground.

Let's take a look.From the Minnesota Reformer

Why tribal casinos are not subject to state COVID-19 restrictions | Opinion
Lawsuit shows widespread ignorance of federal law

By Angelique EagleWoman

February 1, 2021

A lawsuit was recently filed alleging that Minnesota Gov. Tim Walz failed to impose state pandemic emergency restrictions on the operation of tribal governmental casinos or other tribal businesses.  

The posture of the lawsuit demonstrates complete misunderstanding of the federal-tribal relationship, the federal Indian Gaming Regulatory Act of 1988, and the federal National Indian Gaming Commission’s role of oversight of tribal gaming operations. On a deeper level, the lawsuit misses the mark completely on the basic principle of federal Indian law as stated in the 1832 U.S. Supreme Court decision, Worcester v. Georgia that federal law pre-empts state law and regulatory authority in Indian affairs.

As a law professor, I join my colleagues in lamenting the lack of education on tribal governments, the treaty relationships with the United States, the operation and jurisdiction of tribal courts and the contemporary issues for tribal entities.  I am co-author of Mastering American Indian Law with Stacy Leeds of the Cherokee Nation, who is currently on faculty at Arizona State University. The lawsuit mentioned above is illustrative of wasted time, money, and energy by making arguments that are easily defeated by reviewing basic federal Indian law.

First, tribal casinos are operated by tribal governments. This is a requirement under the federal Indian Gaming Regulatory Act (IGRA). Unlike private businesses registered in states, tribal casinos are limited in expenditures of profits and are heavily regulated by federal law through a federal oversight agency, the National Indian Gaming Commission. Private businesses enrich private individuals as part of capitalism. Tribal casinos garner revenues to lift tribal people out of poverty due to the land grabs in the 1800s and 1900s. Tribal profits are mandated under the IGRA to be spent in five categories: 1) “to fund tribal government operations or programs”; 2) “to provide for the general welfare of the Indian tribe and its members”; 3) “to promote tribal economic development”; 4) “to donate to charitable organizations”; or 5) “to help fund operations of local government agencies.” See here: 25 U.S.C. § 2710(b)(2)(B). Further, gaming Tribes must pay for and submit annual audits to detail all expenditures from gaming revenues and must fund the oversight federal agency, the National Indian Gaming Commission, on a percentage scale. Find it here: 25 U.S.C. § 2717.

In terms of the measures taken to control the spread of COVID-19, tribal governments have led the way in best practices. The NIGC has provided checklists for closures, required communication on gaming operation procedures, offered frequent resource briefings, and has the federal regulatory oversight of tribal gaming operations. This federal agency pre-empts the field of state regulatory authority. As mentioned above, the primary relationship between tribal governments has been with the United States federal government, not the component state governments.  Rather, tribal governments have contributed to state and local governments through donations through gaming revenues to enhance neighboring communities and public services.

There has been some mention of Public Law 280 and state authority within tribal territories. Again, this is clearly a lack of knowledge on display about federal Indian law. Public Law 280 was passed during what is referred to as the “termination era” of federal Indian policy approximately from the late 1940s to the mid 1960s.  The federal law delegated federal criminal jurisdiction to state governments over activity on tribal lands without providing funding to states or receiving the consent of tribal governments. With the 1968 Indian Civil Rights Act, a tribal consent provision was added to any future assumptions of criminal jurisdiction by states within Indian Country — and not a single consent has been given. With the 2010 Tribal Law and Order Act, tribal governments can request the federal government to regain criminal jurisdiction where it was previously delegated to a state.  

While Minnesota is a mandatory Public Law 280 state, state officials are correctly following the limitations on the delegation of criminal authority. The U.S. Supreme Court has held in two well-known cases that Public Law 280 did not confer any regulatory power to states. Those cases are: Bryant v. Itasca County (1976) holding that a Minnesota county did not gain property taxing authority on tribal lands through Public Law 280; and California v. Cabazon Band of Mission Indians (1987) holding that Public Law 280 allowed states to exercise only criminal authority where state law criminalized conduct. The assertion that Public Law 280 would allow any state regulatory measures on the coronavirus pandemic within tribal lands is erroneous and not legally supported.  

There is training available on tribal and Indian law through state bar associations. Mitchell Hamline School of Law has the Native American Law and Sovereignty Institute, one of approximately 16 Indian law programs in the United States. Legal scholars in this field continue through legal education and public education to raise the level of understanding on tribal governments, tribal businesses, and tribal relations within the United States to minimize ungrounded arguments that waste time, energy and taxpayer money.

According to the bio that accompanies the commentary:

Angelique W. EagleWoman (Wambdi A. Was’teWinyan) is a law professor, legal scholar, an associate justice on the Sisseton-Wahpeton Supreme Court and an author. She served as general counsel for her own Tribe, the Sisseton-Wahpeton (Dakota) Oyate. She graduated from Stanford University with a Bachelor of Arts in political science, received her Juris Doctor degree from the University of North Dakota School of Law with distinction, and her L.L.M. in American Indian and Indigenous Law with honors from the University of Tulsa College of Law.

Disclosure: While our romantic partner is a citizen of the Sisseton-Wahpeton (Dakota) Oyate, and we live within the historic boundaries of the Lake Traverse Reservation, neither of us knows Justice EagleWoman.

Further adventures with Larvita

Sheriff Richard Mack

We're not sure how often Haven's Garden has been open since the ruling--or even before it--but a well-known figure on the radical right was a guest star at a January 29 event. In Fines increased for Haven’s Garden owner, the Marshall Independent's Deb Gau reported:

. . .A flier posted on McFarquhar’s Facebook page on Wednesday said an event featuring food, live music and guest speakers is planned on Jan. 29. The speakers include conservative radio host Sam Bushman and former Graham County, Ariz. sheriff Richard Mack.

Mack is the founder of the Constitutional Sheriffs and Peace Officers Association, and author of “The County Sheriff: America’s Last Hope.” Mack also successfully challenged provisions of the Brady Handgun Violence Prevention Act. In 1997, the Supreme Court ruled that using county sheriffs to perform firearm background checks as part of the federal “Brady Bill” was unconstitutional.

There's more to Mack than that brief sketch. At the Marshall Project, Maurice Chammah reported in The Rise of the Anti-Lockdown Sheriffs:

. . .Although sheriffs generally enforce state laws, in 1994, a group of sheriffs in Arizona and Montana sued the federal government, challenging a law that required them to perform background checks on people who wanted to buy handguns. The Supreme Court ruled in the sheriffs’ favor. One of the sheriffs, Richard Mack of Arizona, went on to found the Constitutional Sheriffs and Peace Officers Association, which advocates that sheriffs not enforce all laws they believe to be unconstitutional. In 2016, Mack was a prominent supporter of the Bundy family during their standoff with FBI agents over their right to let cattle graze on public lands.

In 2016, Jonathan Thompson reported for High Country News in The rise of the Sagebrush Sheriffs:

The constitutional sheriffs’ seminal moment was in 1994, when Richard Mack, then-sheriff of Graham County, Arizona, and a handful of other sheriffs sued the federal government over a provision in the 1993 Brady Act that required local law enforcement to handle background checks on gun sales. In 1997, the Supreme Court ruled 5-4 for the sheriffs, deeming it unconstitutional for the feds to force the state or its officers to execute the regulation.

Mack’s defiance made him a folk hero to the then-burgeoning Patriot movement, which is centered around the belief that the federal government is taking away individual liberties. Mack became a speaker at Patriot gatherings, railing at Clinton and his attorney general, Janet Reno. In 1996, Mack lost his bid for re-election, but he still spoke for libertarian causes, and he co-wrote a book with Randy Weaver, the man at the center of the 1992 Ruby Ridge shootout with federal agents, the event that catalyzed the militia movement.

But it was Mack’s “complete discouragement and feelings of hopelessness” at the 2008 election of Barack Obama that propelled him back into the political spotlight. In reaction, Mack wrote a 50-page screed denouncing the federal government and its intrusion into individual and state rights. The County Sheriff: America’s Last Hope, published in 2009, argues that the sheriff is the ultimate law enforcement authority and thus the “last line of defense” shielding individual liberties from out-of-control federal bureaucrats. The manifesto cemented his cause and made him one of the prime movers of the ad hoc reactionary movement that would come to be known as the Tea Party.

With his clear blue eyes, sweeping black hair and easy smile, Mack looks like central casting’s idea of the perfect sheriff. He shared his philosophy at dozens of Tea Party rallies as well as gatherings of the Oath Keepers, a quasi-militia organization founded in 2009. 

. . .  in January 2012, the CSPOA held its first gathering in Las Vegas, followed by a second event that September. By then, Obama was on his way to being re-elected and Tea Partiers had triumphed in a number of Republican primaries. Mack’s attendance rosters read like a Who’s Who of Tea Party politics. They included Oath Keepers’ founder Stewart Rhodes and Sagebrush Sheriffs such as Spruell and Lopey. Also speaking was Tom DeWeese, president of the American Policy Center, known for spreading fears that the United Nations, under Agenda 21, is taking over the world via bike paths and public transit, and Joe Arpaio, the notorious sheriff of Maricopa County, Arizona, whom Mack praised for launching an investigation into the validity of Obama’s birth certificate. Ken Ivory, president of the American Lands Council and champion of the federal land-transfer movement, gave a rousing speech at the September gathering about the “revolution of ideologies” he and the sheriffs were engaged in. . .. 

Read both articles. 

Readers can view Mack's remarks in Lynd on McFarquhar's YouTube page.

Trespass at Southwest Minnesota State University

The Marshall Independent's Deb Gau is getting quite the workout by covering McFarquhar's antics, though we've yet to see a restaurant review. Gau reports in Lynd restaurant owner served with trespassing notice:

 A Lynd restaurant owner whose defiance of COVID-19 restrictions created controversy was escorted out of a building at Southwest Minnesota State University by Marshall Police on Wednesday.

Larvita McFarquhar and one other person, Steve Lahr, were given trespassing notices after going into SMSU without masks. McFarquhar also disrupted classes on Wednesday morning, a university spokesperson said.

McFarquhar said she accompanied her daughter, who is a student at SMSU, to classes on Wednesday because her daughter was afraid of how she was being treated for not wearing a face covering.

“She didn’t want to go by herself,” McFarquhar told the Independent. She said her daughter had a medical exemption to wearing a face mask. . . .

Bill Mulso, vice president for government relations, communications and marketing at SMSU, confirmed there was an incident Wednesday morning when McFarquhar entered a classroom on campus. Mulso said McFarquhar disrupted a class in progress, and after a second classroom disruption later that morning, she was issued a trespassing notice.

Mulso said SMSU is operating under Gov. Tim Walz’s executive order that all people wear face coverings when in indoor businesses and indoor public settings. Even before that executive order took effect, the Minnesota State colleges and universities system had also issued a face covering rule, he said.

Under the mask order, accommodations can be made for people who have medical or mental health conditions or disabilities that make it unreasonable for them to wear a mask. Those reasonable accommodations include wearing a face shield instead of a mask, or moving to virtual learning instead of in-person learning, Mulso said.

Later, after walking to a second classroom, McFarquhar and Lahr were met in the hall by Mike Munford, director of public safety at SMSU. Munford said they both would be restricted from campus. Marshall Police were called to the scene, and issued both McFarquhar and Lahr trespassing notices. Officers walked McFarquhar, her daughter, and Lahr out of the building, although officers did not follow them once they were outside.

McFarquhar said the trespassing notices prohibit her and Lahr from coming back to SMSU for a year.

McFarquhar said Wednesday she does plan to take legal action in response to the incident.

One can watch six Facebook videos about incidents on Wednesday and Thursday on McFarquhar's Facebook page.

It does seem odd to us to watch her rant at the rather calm college instructor about how she should teach the Constitution. Commenters on the page note that the course was in the science building. 

In addition to the Marshall Independent reporter, McFarquhar was accompanied by Steve Fahr. According to Unicorn Niko Georgiades in D.C. Riots: A Look at the Minnesota Contingent:

Larvita McFarquhar, owner of Haven’s Garden restaurant in Lynd, Minnesota, who’s faced fines for keeping her restaurant open, took the trip to D.C. with a crew of her friends—Janice Evans (Victoria White), Molly Wentzel, and Steve Lahr. On their trip, they stopped in Gettysburg to live-stream about how they weren’t allowed into five different bathrooms for refusing to wear masks.  . . .

The four talked about their experiences in D.C. during two live-streams posted on Molly Wentzel’s Facebook on January 8. They all repeated the debunked theory that the violence that happened at the Capitol was orchestrated by “antifa and BLM.” White and Wentzel said they went into the Capitol building while Lahr and McFarquhar didn’t enter the building.

That would be reserved for stomping into classrooms at a public state college in Southwest Minnesota.

In our December post, we included additional information about McFarquhar. From that look text as posted, without additional indentations:

Tough times in Lyon County

Even before the pandemic, it was tough for McFarquhar to keep the restaurant's doors open.

The Lyon County woman opened Havens Garden restaurant in Lyon County in May 2020, after opening an earlier iteration--Trev's Kitchen--in 2017. 

Trev's Kitchen temporarily closed in July 2019:

The business records database at the Minnesota Secretary of State shows that the paperwork for the assumed name was filed May 5, 2020.

Photos on the Haven Gardens's Facebook page jump from April 4, 2019 to May 21 2020.

The page history in the Page Transparency section reveals this history:

The mother of four reopened  on May 18 with a religious and patriotic theme:

05/17/2020

Haven’s garden, formally Trev's Kitchen, will be opening on Monday, May 18. Come join us for non-denominational prayer, worship, and fellowship from 5 PM- 6 PM
ALL are welcome!!!

Special event: “Patriots Unite”
Enjoy dinner and a performance by the Fabulous Tommy Rexx
from 6 PM-8 PM

Sadly, few showed up as she lamented to her daughters in a dramatic YouTube. The caption:

Hard working mother and small business owner breaks down as she is outraged over the government saying her business, along with so many other businesses, are considered nonessential. As she dares to open her business she is hurt that there were no patriots to stand with and support her, except for a select few.

The restaurant business is never easy--and near impossible in a pandemic. And McFarquhar's own life changed on the western prairies where she had been raised. In 2016, the Marshall Independent reported in New life for the Lyndwood:

Larvita McFarquhar bought the SWSD from Charlotte Wendel, who will stay on as artistic director. McFarquhar was a student of Wendel’s from the age of 6 to 17. After high school, she moved from Marshall to Virginia for 15 years and “out of the blue” called Wendel and learned she was selling SWSD.

“I thought it was a great opportunity,” said McFarquhar. “I’m really excited.”

McFarquhar and her husband, Wayne, have four daughters, ages 17, 15, 12, and 10, and live in Marshall. She has extended family in Pipestone, Edgerton and Sioux Falls, S.D.

By November 25, 2020 Powerline's John Hindraker reported in A HEROINE FOR OUR TIME?:

Larvita McFarquhar owns a little bar and entertainment venue called Havens Garden in Lynd, Minnesota, a town of 448 in the southwestern part of the state. She is black, a single mother and a Christian. I don’t know whether McFarquhar is a conservative, but she is standing tall against our proto-fascist governor’s order that all bars and restaurants shut down indefinitely.  . . .

In an interview with Alpha News, McFarquhar added this background:

McFarquhar said the last several months have “been horrible” financially, noting that small business owners are already “struggling as it is.”

“These are the things that you have to struggle with. I’m struggling to keep my lights on,” she added. “The thing that makes me mad during this whole thing is we still have to pay our bills. I have to still pay taxes on the building.”

The government can order McFarquhar to close her doors, but “they still want their taxes” and can put a lien on her property if she doesn’t pay her bills, she said.

“The bills that were there before — they don’t go away because we’re not open. They’re still there and I still have to pay them,” McFarquhar said Monday. “Then to have the threat above that. That’s the worst part.” . . . 

That's certainly true. According to court records, the McFarquhars filed for divorce in October, 2020; the marriage dissolved at the end of November. Civil cases Case No. 27-CV-18-4716 (Hennepin Civil) and Case No. 42-CV-18-446 (Lyon), filed in March 2018, reveal a debt of $2,908.61 by McFarqhar and several businesses she owns to Sysco Western Minnesota, Inc in 2018. A search  of judgment records shows that the debt remains active.

As far as her politics go, we think the Facebook photo of a Trump flag street wave may be something of a marker.

One source also spells her politics out fairly clearly. For the Minneota Mascot, Scott Thoma reports in Lynd businesswoman defies governor, keep bar/restaurant open that she is "a black conservative" who believes she has benefited from reverse discrimination:

Because no one from the Lyon County Sheriff's Department showed up that [Friday] night, McFarquhar feels it was a case of reverse discrimination.

"If anything, I feel it was racist against white people," she said. "If I was white, I think they would have arrested or fined me. But the way things are today, they didn't want the news of shutting down a single black woman's business."

The article also reports that the name-change came earlier, despite the records of Trey's Kitchen cited above (and the Sysco debt was accrued by Trey's Kitchen):

McFarquhar, who is from Marshall, first opened a gymnastics club and dance studio in 2016 in the same building as the then-closed restaurant known as Chuck's Kitchen. She opened the restaurant the following year and re-named it Havens Garden.

"I wanted it to be a safe haven for people to come and enjoy," she explained. "The gym and dance studio are still open Monday thru Thursday from 10:30 a.m. to 3 p.m. The kids can play in the gym and relieve some stress. And we serve food during those times, too."

McFarquhar has attracted a lot of publicity since defying the governor; mostly positive. She has been interviewed by several print and broadcast media personnel. While she is happy to get her message out, McFarquhar wasn't trying to attract attention for her business. . . .

 We are tracking down a few more leads on this story; should they pan out, we'll update this post.

However, given her embrace of anti-vaxxers like Wakefield and her lack of understanding of law governing tribal nations and their relationships to federal and state governments, we're inclined to think that while McFarquhar may not be trying to attract attention for her business, she certainly doesn't mind being at the center of attention.

Photo: "SMSU public safety and Marshall Police officers gave a trespassing notice to Larvita McFarquhar on Wednesday, before escorting her out of a university building. University spokespeople said McFarquhar and one other person went to the university without face masks, and that McFarquhar disrupted classes that were in progress Wednesday morning." Photo by Deb Gau, Marshall Independent.

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