Mille Lacs Band of Ojibwe v. Cnty. of Mille Lacs

650 F.Supp.3d 690

MILLE LACS BAND OF OJIBWE, a federally recognized Indian Tribe; James West, in his official capacity as the Mille Lacs Band Chief of Police; and Derrick Naumann, in his official capacity as Sergeant of the Mille Lacs Police Department, Plaintiff, v. COUNTY OF MILLE LACS, MINNESOTA; Joseph Walsh, individually and in his official capacity as County Attorney for Mille Lacs County; and Donald J. Lorge, individually and in his official capacity as Sheriff of Mille Lacs County, Defendants.

Case No. 17-cv-05155 (SRN/LIB)

United States District Court, D. Minnesota

Signed January 10, 2023

Anna Brady, Beth Ann Baldwin, Marc D. Slonim, and Wyatt Golding, Ziontz Chestnut, 2101 Fourth Avenue, Suite 1230, Seattle, WA 98121; and Arielle Wagner, Charles N. Nauen, and David J. Zoll, Lockridge Grindal Nauen P.L.L.P., 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401, for Plaintiffs.

Brett D. Kelley, Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN 55415; Courtney E. Carter and Randy V. Thompson, Nolan Thompson Leighton & Tataryn PLC, 1011 First Street South, Suite 410, Hopkins, MN 55343; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant County of Mille Lacs, Minnesota.

Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh.

Brett D. Kelley, Douglas A. Kelley, Stacy Lynn Bettison, Steven E. Wolter, Garrett S. Stadler, and Perry Sekus, Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN 55415; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Donald J. Lorge.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

SUSAN RICHARD NELSON, United States District Judge

This matter is before the Court on the Plaintiffs' Motion for Summary Judgment Awarding Declaratory and Injunctive Relief [Doc. No. 317] and Defendants Joseph Walsh and Donald Lorge's Motion for Summary Judgment [Doc. No. 322]. Based on a review of the files, submissions, and proceedings herein, and for the reasons below, the Court grants in part and denies in part Plaintiffs' motion, and grants in part, denies in part, and denies as moot in part Defendants Walsh and Lorge's Motion.

I. BACKGROUND

A. Parties and the Mille Lacs Indian Reservation

Plaintiffs are the Mille Lacs Band of Ojibwe, Mille Lacs Band Chief of Police James West¹, and Sergeant Derrick Naumann (collectively, "the Band"). In November 2017, the Band filed this lawsuit against the County of Mille Lacs, Mille Lacs County Attorney Joseph Walsh, and Sheriff Donald Lorge² (collectively, "the County") seeking declaratory and injunctive relief regarding the Band's law enforcement authority within the Mille Lacs Indian Reservation. (See generally Compl. [Doc. No. 1].) This Court maintains subject matter jurisdiction over this matter based on federal question jurisdiction. (See Dec. 21, 2020 Order [Doc. No. 217] at 24-29.)

1. History of the Dispute Regarding Tribal Law Enforcement Authority on the Reservation

Article 2 of the 1855 Treaty between the Minnesota Chippewa Tribe and the United States established the Mille Lacs Indian Reservation, which comprises about 61,000 acres of land. (10 Stat. 1165 (Feb. 22, 1855); Quist Decl. [Doc. No. 160] ¶ 3.) Within the Reservation, the United States holds approximately 3,600 acres in trust for the benefit of the Band, the Minnesota Chippewa Tribe, or individual Band members. (Quist Decl. ¶ 4.) Such lands are considered "trust lands." See 25 U.S.C. § 2201(4)(i). The Band owns in fee simple about 6,000 acres of the Reservation, and individual Band members own in fee simple about 100 acres of the Reservation. (Quist Decl. ¶ 4.) These lands, to which the Band or its members hold title, are referred to as "the Band's fee lands."³

Pursuant to state law, in 2008, the Band and the County entered into a cooperative law enforcement agreement ("2008 Cooperative Agreement"). (Baldwin Decl. [Doc. No. 150]⁴, Ex. H (Revocation & 2008 Coop. Agmt.) at 13-20.) The 2008 Cooperative Agreement allowed Band law enforcement officers to exercise concurrent jurisdiction with the Mille Lacs County Sheriff's Department to enforce Minnesota criminal law, consistent with Minn. Stat. § 626.90. (Id.) Minnesota Statute § 626.90 provides that if certain regulatory and liability requirements are met, the Band and the Mille Lacs County Sheriff possess concurrent jurisdictional authority as follows: (1) over all persons in the geographical boundaries of the trust lands; (2) over all Minnesota Chippewa tribal members within the boundaries of the 1855 Treaty; and (3) over any person who commits or attempts to commit a crime in the presence of an appointed band peace officer within the boundaries of the 1855 Treaty. Minn. Stat. § 626.90, subd. 2(c). However, the statute makes clear that "[n]othing in this section shall be construed to restrict the band's authority under federal law." Minn. Stat. § 626.90, subd. 6.

In approximately 2013, the Band applied to the U.S. Department of Justice for concurrent federal jurisdiction over crimes committed in the Band's Indian country,⁵ pursuant to the Tribal Law and Order Act (TLOA), 18 U.S.C. § 1162(d). (Baldwin Decl., Ex. D (M-Opinion) at 1-2 n.2.) During the application process, the County submitted comments in opposition, asserting that the Reservation, as established by the 1855 Treaty, had been disestablished such that the 1855 Treaty boundaries no longer constitute the Band's Indian country. (Id. at 2 & n.3.) The Band responded to the contrary, maintaining that the 1855 Treaty boundaries remain intact. (Id. & n.4.)

In response to the dispute, in November 2015, the U.S. Department of the Interior's Office of the Solicitor ("DOI Solicitor") issued an opinion entitled Opinion on the Boundaries of the Mille Lacs Reservation, Solicitor's Opinion M-37032 (the "M-Opinion"). (Id. at 1-2.) In the 37-page, single-spaced M-Opinion, the DOI Solicitor recounted the establishment of the Mille Lacs Reservation in 1855, the applicable treaties, the Nelson Act, the historical treatment of the land, Supreme Court authority, and Interior Department positions regarding the Reservation. (Id. at 2-22.) After analyzing the complicated history of the Reservation and the applicable law, the DOI Solicitor found no evidence of clear congressional intent to disestablish the Reservation sufficient to overcome the general rule that "doubtful expressions are to be resolved in favor of the Indians." (Id. at 36 & n.260 (citing Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 816 (8th Cir. 1983) (quoting DeCoteau v. Dist. Cnty. Court, 420 U.S. 425, 444, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (cleaned up)).) Thus, the DOI Solicitor concluded the M-Opinion by finding that the Reservation, as it was established by the 1855 Treaty, remained intact. (Id. at 36.)

The M-Opinion and its findings on the Reservation's boundaries prompted the County to terminate the 2008 Cooperative Agreement between the County and the Band regarding their concurrent authority to enforce state criminal law. (Revocation & 2008 Coop. Agmt. at 1-5.) Walsh explained, "The primary motivating factor of the revocation, as stated in the revoking resolution, was the M-opinion, and what I think the board viewed as the Band using their law enforcement authority to improve their position vis-à-vis the boundary." (Baldwin Decl., Ex. KK (Walsh Dep.) at 318:23-319:3.) Indeed, in the County's July 21, 2016 resolution to revoke the 2008 Cooperative Agreement, the County expressly "reject[ed] the conclusions of the M Opinion and the Mille Lacs Band of Ojibwe's use of the criminal justice system to address the disputed boundary of the Mille Lacs Indian Reservation in violation of Minn. Stat. § 626.90(7) and paragraph 10 of the Cooperative Agreement." (Revocation & 2008 Coop. Agmt. at 4.) The Revocation Resolution provided that the 2008 Cooperative Agreement would expire within thirty days of the Band and Sheriff receiving notice. (Id. at 3-4.)

In July 2016, County Attorney Walsh asked then-Minnesota Attorney General Lori Swanson for an opinion regarding whether the Band's police department remained a state law enforcement agency under Minnesota law. (Aug. 27, 2021 Walsh Decl. [Doc. No. 306-1] ¶ 7.) Swanson denied the request for an opinion and recommended that Walsh advise the County as he deemed appropriate. (See id. ¶ 8.)

2. The Opinion and Protocol: The Undisputed Record

Shortly thereafter, on July 18, 2016, Walsh issued an Opinion and Protocol, addressing the Band's state law enforcement authority. (Baldwin Decl., Ex. I (hereafter, "Opinion").) Walsh stated that he developed the Opinion and Protocol "to ensure that the evidence being presented to me for potential prosecution would be admissible in court," precluding jurisdictional challenges that might arise "if a Band police officer made an illegal stop." (Aug. 27, 2021 Walsh Decl. ¶ 13.)

In the "Opinion" portion of the Opinion and Protocol, Walsh opined that "the nature and extent of [the Band's] inherent tribal criminal authority is presently unknown." (Opinion at 14.) Walsh stated that the Band's police department was created by Minn. Stat. § 626.90, and its state law enforcement authority within the County "is entirely dependent upon the interpretation of that statute." (Id. at 3.) Under a "plain reading" of the statute, Walsh opined, the Band was only allowed to provide law enforcement services in the County if it entered into a mutual aid/cooperative agreement with the Sheriff. (Id.) Because the County had revoked the 2008 Cooperative Agreement and no other agreement was forthcoming, Walsh addressed the scope of the Band's state law enforcement authority, absent a cooperative agreement.

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