The Mille Lacs Band of Ojibwe would like to take this opportunity to respond to an article in the April 2019 Mille Lacs County Quarterly Newsletter regarding the pending law enforcement litigation between the Mille Lacs Band and Mille Lacs County. This response discusses the Band’s goals in the lawsuit, summarizes the events that led the Band to file the lawsuit, discusses where matters stand today, and addresses the implications for the Band’s non-Indian neighbors.
The article in the County’s Quarterly Newsletter makes several statements that are inconsistent with the Band’s objectives in the lawsuit. The article also suggests various actions that the Band might take against its non-Indian neighbors if it prevails in the lawsuit. The article appears to make these suggestions to generate support for the County’s position in the lawsuit and to justify the large costs of the lawsuit to County taxpayers.
The Band is very concerned that these suggestions will generate hostility to the Band and deepen animosity and divisions in our community.
1.
We begin with a brief overview of the Band’s lawsuit. The Band’s single overriding goal in the lawsuit is to preserve the authority of the Band police department. The Band believes its police department plays an important role in providing a safe and secure environment for Band members and non-Band members and in combatting drug trafficking and gang activity that has plagued our community. Because the Band pays for the cost of its own police department, preserving the authority of the Band’s police department will reduce the cost of providing law enforcement that would otherwise be borne by the County’s taxpayers.
The law enforcement authority the Band seeks in its lawsuit is not a threat to non-Indians. The Band is not seeking authority to prosecute non-Indians. It seeks only the authority to investigate violations of federal and state law so that law and order will be maintained. Non-Indian offenders apprehended by Band officers will be prosecuted in federal or state court, where they enjoy all protections afforded by the Constitutions of the United States and the State of Minnesota. The Band has waived its sovereign immunity for any claims that its officers violated the constitutional rights of any person.
The Band’s lawsuit does not seek any other authority. For example, contrary to the intimations in the County Newsletter article, the Band’s lawsuit does not seek authority to regulate non-Indian fishing in Mille Lacs Lake, to hunt on private lands, to tax, regulate, or zone non-Band members or non-Band lands, or to expand federal or Band environmental authority. The Band has previously participated in negotiations with the County to confirm the limits on its jurisdiction over non-Indians within its Reservation and remains willing to participate in such negotiations in the future. It is not seeking to expand its jurisdiction or authority in its lawsuit.
In short, the Band’s lawsuit has a single objective: to help provide a safe and secure environment for Indians and non-Indians, at Band expense. This is not a threat to the Band’s non-Indian neighbors. It is an attempt to contribute to the well-being of our community for the benefit of everyone.
2.
It is important to understand the events that led the Band to file its lawsuit. About 30 years ago, the Mille Lacs Band established a tribal police department to provide added law enforcement for its members and non-members who live in, work on or visit its Reservation. The Band expanded its police force over the ensuing years. By 2016, the Band employed 32 full-time police officers. Every Band officer is licensed by the State of Minnesota and receives extensive law enforcement training. The Band’s officers have special expertise in addressing gangs and drugs; they played an important role in the successful federal prosecution of the Native Mob and in other major drug and gang cases.
However, in 2016, Mille Lacs County terminated a law enforcement agreement with the Band and launched a campaign to prevent Band police officers from exercising law enforcement authority. The County terminated the Band police department’s access to its records management system, to critical radio communications, to a national law enforcement data base, and to other essential law enforcement tools.
On the very day the County Board passed the resolution terminating its agreement with the Band, County representatives travelled to Pine County to encourage Pine County to terminate its own law enforcement agreement with the Band. The Mille Lacs County Attorney asked the State Auditor to seize the contents of the Band police department’s evidence room and wrote to some 100 federal, state and local law enforcement agencies in the state claiming the Band no longer had the powers of a law enforcement agency.
The County Attorney then issued an opinion and protocol asserting that Band officers did not have authority to engage in basic law enforcement activities (such as investigating violations of state law) and pointedly noted that it is a felony to impersonate a law enforcement officer. On multiple occasions the County Attorney demanded that Band officers follow his opinion and protocol and refused to prosecute offenders investigated by Band officers. The County Sheriff and his deputies implemented the County Attorney’s directives by (among other things) refusing to dispatch calls to Band police and refusing to arrest suspects investigated by Band officers.
All of this led to a public safety emergency on the Band’s Reservation. Governor Dayton described the County’s actions as dangerously irresponsible and morally indefensible.
As the price of a new agreement, the County demanded that the Band curtail the exercise of criminal and civil jurisdiction over its own members as well as non-members, submit internal Band investigations to the County, invite the County to meetings with the Band’s federal and state partners, outsource to the County background investigations of the Band’s Chief of Police, and agree to other measures that no government can or should accept.
Unable to negotiate a new agreement with the County, the Band filed a lawsuit against the County, the County Attorney and County Sheriff in November 2017. The lawsuit seeks a declaration of the scope of the Band’s federal and tribal law enforcement authority and an injunction barring the defendants from interfering with that authority. As noted above, that is all the Band seeks in its lawsuit. It does not seek any other authority over Indians or non-Indians.
3.
Where do matters stand today? Last September, the County had a change of heart and entered into a new law enforcement agreement with the Band. The County dropped most of the demands that had prevented an agreement over the preceding two years and three months: for example, it no longer demanded that the Band agree to curtail the exercise of criminal and civil jurisdiction over its own members as well as non-members, that it submit internal Band investigations to the County, that it invite the County to meetings with the Band’s federal and state partners, or that it outsource to the County background investigations of the Band’s Chief of Police.
However, the County did demand that the Band continue to pursue its lawsuit against the County. It insisted on a provision in the new agreement that provides that the agreement will terminate 90 days after the lawsuit comes to an end. Thus, if the Band were to drop its lawsuit now, the new agreement would terminate and we would be right back where we were from July 2016 until September 2018.
Why is this? One of the underlying claims in the Band’s lawsuit, which is necessary to determine the scope of the Band’s federal and tribal law enforcement authority, is whether the Mille Lacs Indian Reservation, as established in an 1855 Treaty, still exists. The existence of the Reservation does not affect title to lands within its boundaries but does affect the extent of the Band’s law enforcement authority.
The County has been seeking to litigate its claim that the Reservation was disestablished for almost 20 years. In 2002 it sued Band officials asking the court to declare that the Reservation no longer exists. However, that lawsuit was dismissed because the County could not show that the existence of the Reservation had harmed it in any way. After the Band filed its current lawsuit, the County filed a countersuit, again seeking a declaration that the Reservation no longer exists. And, again, the County’s suit was dismissed because the County could not show that the existence of the Reservation had harmed it in any way.
So, as things now stand, the only way for the County to litigate its claim that the Reservation no longer exists is in the context of the Band’s lawsuit. And it has inserted a provision in the new law enforcement agreement to make sure that the Band’s lawsuit continues.
4.
What are the implications for the Band’s non-Indian neighbors? The article in the County Newsletter is filled with speculation about what the Band might do if the court determines that the Band’s Reservation still exists. Put another way, the article seeks to raise alarm about what might happen if the court were to disagree with the County’s claim that the Reservation no longer exists – a claim that the County itself has insisted be decided by the court.
From the Band’s perspective, the only thing that would happen is that the authority of the Band’s police department would be confirmed and the Band would be able to continue to provide law enforcement services to Indians and non-Indians on its Reservation. The Band has no other agenda in the lawsuit. It is not seeking the authority to try and punish non-Indians. It is not seeking authority to regulate non-Indian fishing in Mille Lacs Lake or to hunt on private lands. It is not seeking any authority to tax, zone or regulate non-Indians. It is not seeking to expand federal or Band environmental authority.
The article in the County Newsletter suggests that non-Indians will be harmed if the Band is successful in its lawsuit because all lands within the original boundaries of the Mille Lacs Indian Reservation would be considered Indian country. However, for at least fifty years, the United States, the Band and, at times, the State have recognized all lands within the original boundaries of the Mille Lacs Indian Reservation as Indian country. And yet the article points to nothing harmful that has occurred because of that.
The article claims that the Band might claim jurisdiction over a portion of Mille Lacs Lake, including authority over fishing and other activities. But the Band has never made any such claim and is not making any such claim in its lawsuit. The Band has spent years in cooperation with the state developing a co-management protocol for fishing in Mille Lacs Lake under the 1837 Treaty, in which the Band and other tribes regulate Indian harvests and the State regulates non-Indian harvests. The Band has no intent to disrupt that protocol.
Moreover, while the Band claims a portion of Mille Lacs Lake is within its Reservation, the Band acknowledges that the State of Minnesota owns the bed of Mille Lacs Lake, which constrains any regulatory claims the Band might make. The only practical effect that the inclusion of part of Mille Lacs Lake within the Mille Lacs Reservation has had is that other 1837 Treaty tribes have agreed not to exercise their 1837 Treaty fishing rights in that part of the lake. If the County succeeds in its effort to disestablish the Reservation, the ironic effect could be increased Indian fishing pressure in the southern part of Mille Lacs Lake from other tribes under the 1837 Treaty.
The article also claims that the Band might exercise hunting rights on privately owned lands. It acknowledges that the Band could not use privately owned lands without the permission of the owner but speculates that hunting by Band members on the Band’s own lands (or other lands on which permission was granted by the landowner) might harm adjacent property owners. After the courts upheld the Band’s hunting rights under the 1837 Treaty, the Band acquired lands on which its members could exercise those rights. The Band did this to lessen tensions with non-Indians if Band members exercised their hunting rights on public lands, where non-Indians might be present during Band hunting seasons. Unfortunately, the County objected to this common-sense approach based on its argument that the Band’s 1837 Treaty rights did not extend to private lands, even privately-owned Band lands. The solution has been to transfer the Band’s privately-owned lands into trust, where it is undisputed that Band members may exercise hunting rights. Having taken that step, the Band has no need to authorize additional hunting on private lands and is not seeking to do so in its lawsuit.
The article claims that if the court recognizes the continued existence of the Band’s reservation boundaries, the federal government would assert regulatory authority within Indian country, including federal law enforcement authority through the BIA, the FBI or other federal law enforcement agencies. However, the federal government already asserts that authority and the article does not explain how that has been harmful to non-Indians. Ironically, the exercise of that authority was instrumental in a recent federal indictment of multiple suspects charged with conspiracy to distribute 100 grams of heroin. Is additional federal law enforcement and the curtailment of drug trafficking bad? Is it so bad that it is worth spending millions of dollars fighting the Band’s lawsuit?
The article also claims that if the court recognizes the continued existence of the Band’s reservation boundaries, the federal government would assert other regulatory authority and that the Environmental Protection Agency (EPA) would displace the Minnesota Pollution Control Agency (MPCA) in regulating environmental matters within the Reservation. However, the EPA has asserted and has been exercising authority within the Mille Lacs Reservation for some 25 years, and the article fails to explain what harm has come of it. EPA has entered into agreements with MPCA and the Band to involve them in the enforcement of environmental laws within the Reservation, seeking practical, on-the-ground solutions rather than pursuing the type of costly litigation that the County appears to prefer.
The article asserts that if the court rejects the County’s argument that the Reservation no longer exists the Band could require liquor licenses and regulate liquor sales within the Band’s Reservation. This was the central issue in a recent case involving the Omaha Reservation in Nebraska, which was triggered by the Omaha Tribe’s attempt to require liquor licenses from bars in the town of Pender. In a unanimous decision, the United States Supreme Court held the disputed part of the Reservation still existed despite arguments, such as those made by the County here, that it had not been recognized for more than a century. However, the Court specifically held that the existence of the Reservation by itself did not establish that the Tribe had authority to require liquor licenses. In our case, the Band has never sought to require liquor licenses from non-Indians within the Reservation and has no intent to do so.
The article also claims that the Band might assert authority under the federal Violence Against Women Act to prosecute non-members in tribal court for certain domestic violence offences involving a tribal member. However, it is undisputed that the Band could assert that authority today for offenses on trust lands but has chosen not to do so. The Band would prefer to work in partnership with federal and state prosecutors to address the epidemic of violence against Native women. And it would prefer that the County devote its resources to combatting violence against women rather than fighting the Band over hypothetical actions the Band might take to address an extremely serious problem in our community.
The article claims that, “[a]s other tribes have done, the Band could assert business regulation, zoning regulation and broader criminal jurisdiction over non-members and their lands within Indian country.” We do not know what other tribes the article is referring to, but the Band has done none of this.
The article also expresses concern that the County would lose civil regulatory authority, so that certain traffic offenses would have to be prosecuted in Band court and building permits for Band and potentially Band-member fee properties would be issued by the Band. These were matters the County was willing to agree to in negotiations that preceded its 2002 lawsuit. It is hard to see how the County is harmed if the Band’s court takes on the responsibility and cost of enforcing traffic violations by Band members. And the Band has a track record of environmental stewardship and an interest in enforcing protective building and land use regulations.
In a final attempt to generate support for the County’s litigating position, the article claims that “the biggest potential change of all” is “the possibility of future legislation or court decisions that could extend the powers the Band could exercise in Indian country in new and as-yet unimaginable ways.” The notion that the Congress would enact and the President would sign, or that the Supreme Court would sanction, “new and as-yet unimaginable” powers that would enable the Band to harm its non-Indian neighbors, and the Band would exercise those powers, is rampant speculation. And it is speculation that assumes the Band is eager to assert power over its non-Indian neighbors to harm them in some way. It is precisely this type of fear mongering that can give rise to hostility to the Band and exacerbate divisions in our community. It is entirely unwarranted and unjustified.
6.
The Band’s lawsuit seeks to preserve the authority of its police department to fight crime and maintain law and order. It was triggered by the actions of the County that sought to prevent the Band’s police department from exercising law enforcement authority. And it is being pursued at the insistence of the County.
The County Newsletter article seeks to justify the County’s position in the litigation and the cost to County taxpayers not by pointing to anything the Band has actually done but by speculating about what the Band might do. That speculation is unwarranted and misguided. There is nothing wrong or threatening about the Band’s objective to enhance law enforcement at its own expense.
