NON-REMOVABLE: Band Still Fighting for Reservation


By Brett Larson, January 2, 2015

Year in, year out, the boundaries of the 1855 Mille Lacs Reservation come up in news stories and conversations among Band members and non-Indians alike.

Protecting sovereignty and defending the Reservation is at the top of the agenda of Mille Lacs Band leaders. “Our sovereignty is our sword and our shield,” said Chief Executive Melanie Benjamin. “My job is to make sure future generations won’t have to work so hard to defend our sovereignty as past generations have.”

Those efforts have kept Melanie busy in recent months, as she has traveled to Washington and St. Paul to follow a variety of issues.

Although the legal details can be complicated, the basic conflict over the boundaries is simple: The Mille Lacs Band and the United States government believe the 61,000-acre 1855 reservation still exists, while Mille Lacs County and the State of Minnesota say it was disestablished by treaties and laws that came later in the 1800s.

The original reservation included the townships of Kathio, South Harbor and Isle Harbor, but according to the County, tribal jurisdiction only applies on a few thousand acres of trust land (see sidebar, “What is Trust Land?”).

The Band has always said that exercising its sovereignty within those boundaries will not hurt non-Indian neighbors, and may even help them, yet State and County government officials have used the issue to spread unwarranted fear that living on a recognized reservation will damage their quality of life.

In 2001, Mille Lacs County attempted to bring the issue into federal court, but the case was dismissed because the County couldn’t prove that anyone was being harmed over the dispute.

The “boundary case,” as it became known locally, had its roots in local anger over the 1837 Treaty case, and its repercussions are still felt as the County continues to deny the existence of the reservation.

From treaty rights to boundaries

In 1999, the U.S. Supreme Court ruled in favor of the Band in Minnesota v. Mille Lacs Band of Chippewa Indians — commonly known as “the 1837 Treaty case.”

Even today, some of the Band’s neighbors don’t understand or acknowledge that Band members’ rights were systematically denied by the State of Minnesota for decades, or that the exercise of those rights is a central part of Anishinaabe culture and identity.

Individuals and groups have tried to push the issue of tribal netting back into court. Some continue to blame gillnetting — a centuries-old cultural tradition at Mille Lacs — for declines in the walleye population, even though DNR studies and independent research have shown that netting is not to blame.

Another outgrowth of that bitterness was the County’s denial of the existence of the Mille Lacs Reservation. After the 1837 Treaty case was lost in federal court, residents of the north end of Mille Lacs County chose Frank Courteau, a well-known opponent of Indian treaty rights and tribal sovereignty, to represent them on the County Board.

Courteau immediately began raising the boundary issue, which led to negotiations with the Band over jurisdiction. Tribal negotiators agreed that the Band would not attempt to tax or zone non-Indians within the Reservation boundaries, but that was not enough for the County commissioners. They wanted the Band to admit that the Reservation had been disestablished.

The County was not persuaded by the fact that the federal government had recognized the reservation in federal statutes and administrative decisions, on maps, and in government communications, including a 1991 legal opinion by the United States Department of the Interior Solicitor’s Office in Minneapolis.

The County was also not persuaded by State laws that recognize the reservation, including Minnesota Statute 626.90, which is the basis of the County’s law enforcement agreement with the Band.

In November of 2001, after reaching an agreement on taxation and land use regulation within the Reservation, the Mille Lacs County Board of Commissioners voted unanimously to sue the Band over the existence of the Mille Lacs Reservation.

In January of 2002 a petition signed by 2,200 Minnesota residents was presented to the Board by Dave Oslin of Isle. (Oslin replaced Courteau on the Board after Courteau gave up the seat in 2012.) The petition urged Attorney General Mike Hatch “to take whatever legal action is necessary to support Mille Lacs County in (its) efforts to resolve, once and for all,” the reservation dispute.

In February of 2002 the Board filed suit seeking a “declaratory judgment” that the Reservation, as established in the Treaty of 1855, had been disestablished.

The County attempted to get the State of Minnesota involved in the lawsuit, since the State had also claimed that the reservation was disestablished, and that the term “reservation” only applies to several thousand acres of trust land in the Band’s three districts — in spite of the fact that Minnesota Statute 626.90, recognizes the 1855 Reservation.

Bringing the state into the lawsuit would have given the county credibility, but the State remained on the sidelines until after the County lost in Federal District Court.

In May of 2002, the lawsuit was thrown out by Judge James Rosenbaum, who said the County failed to show that anyone suffered harm from the ongoing dispute. Despite the January 2002 petition and lobbying by the County, the State had stayed out of the case.

The County appealed to the Eighth Circuit Court of Appeals. The State filed a short brief arguing the boundary issue should be decided (without addressing who was right about the boundary), but the Court of Appeals upheld Judge Rosenbaum’s decision.

The County then tried to take the case to the United States Supreme Court, and again was supported by the State.

However, in October of 2004, the Supreme Court declined to hear the appeal.

Trust land and TLOA

Even though the boundary case went nowhere, Mille Lacs County has continued to take every opportunity to claim that the 1855 Reservation doesn’t exist. The commissioners have been supported by Republican state representatives and senators.

County and State elected officials have opposed the Band at every turn, often using “the boundary issue” to spread ignorance and hostility toward the Band — the county’s largest employer.

Their actions delayed the construction of the wastewater treatment plant and several trust land applications. The boundary issue also nearly ended the law enforcement agreement between the Band and Mille Lacs County.

More recently, the county used the boundary issue to oppose the Band’s 2013 Tribal Law and Order Act (TLOA) application. That application — an attempt by the Band to get federal law enforcement help to deal with drugs and gangs — has been in limbo for over two years.

Federal recognition questioned

In recent arguments against the Band’s fee-to-trust applications, Mille Lacs County has upped the ante: Not only do they claim that the reservation doesn’t exist; they now argue that the Mille Lacs Band is not federally recognized.

The Band, of course, is recognized as one of six members of the Minnesota Chippewa Tribe. The U.S. Government has acknowledged the Band’s sovereignty since the early 1800s when Band leaders signed a series of treaties with the United States.

As long as the County and State continue to make these arguments, the Band will continue to assert its sovereignty and protect its homeland, just as its leaders have done since their ancestors came to this land.