Walsh v. State

975 N.W.2d 118

Joseph WALSH, Appellant,

Don Lorge, Appellant,

v.STATE of Minnesota, Respondent.

A20-1083

Supreme Court of Minnesota.

Filed: June 8, 2022

Scott G. Knudson, Scott M. Flaherty, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota, for appellant Joseph Walsh.

Douglas A. Kelley, Brett D. Kelley, Stacy L. Bettison, Garrett S. Stadler, Kelley, Wolter & Scott, P.A, Minneapolis, Minnesota; for appellant Don Lorge.

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Jacob Campion, Stacey Person, Assistant Attorneys General, Saint Paul, Minnesota, for respondent.

Travis J. Smith, Murray County Attorney, Slayton, Minnesota, for Amicus Curiae Minnesota County Attorneys Association.

Nathan R. Sellers, Fabyanske, Westra, Hart & Thomson, Minneapolis, Minnesota, for Amici Curiae Minnesota Sheriff's Association and Association of Minnesota Counties.

OPINION

THISSEN, Justice.

The Mille Lacs Band of Ojibwe (the Band) sued appellants Mille Lacs County Attorney Joseph Walsh and Mille Lacs County Sheriff Don Lorge¹ in federal court (the Federal Lawsuit). Mille Lacs Band of Ojibwe , 508 F. Supp. 3d 486 (D. Minn. 2020). The merits of the Federal Lawsuit are not before us. Walsh and Lorge sought indemnification and defense of the Federal Lawsuit from respondent State of Minnesota under the State Tort Claims Act, Act of April 20, 1976, ch. 331, § 33, 1976 Minn. Laws 1282, 1293–97 (codified as amended at Minn. Stat. §§ 3.736, subds. 1–11 (2020) ), specifically Minn. Stat. § 3.736, subd. 9.

The State Tort Claims Act provides that "[t]he state shall defend, save harmless, and indemnify any employee of the state" who is subject to a claim "arising out of an alleged act or omission occurring during the period of employment ... if the employee was acting within the scope of employment." Minn. Stat. § 3.736, subd. 9. The dispute in this case is whether Walsh and Lorge were "employees of the state" when they undertook the conduct that is the subject of the Federal Lawsuit. We hold that Walsh and Lorge were not employees of the State and, accordingly, are not eligible for defense and indemnification under the State Tort Claims Act. We therefore affirm the decision of the court of appeals upholding the dismissal of appellants’ claims for defense and indemnification from the State.

FACTS

General Background

In 1855, the United States by treaty established the Mille Lacs Indian Reservation, comprising about 61,000 acres of land (1855 Treaty Lands). Treaty with the Chippewa, art. 2, Feb. 22, 1855, 10 Stat. 1165. The United States currently holds about 3,600 acres of land in trust for the benefit of the Band within the bounds of the original reservation territory (the Trust Lands). In addition, the Band directly owns about 6,000 acres of the reservation; individual band members directly own about 100 additional acres.

The Band and Mille Lacs County (the County) have long disputed the proper boundaries of the reservation. The Band has asserted that the 1855 Treaty remains in place. The County, as well as its county attorney, Walsh, and county sheriff, Lorge, have taken the position that, in the decades following 1855, the Mille Lacs reservation has been diminished or disestablished through subsequent federal treaties, statutes, and agreements—a position that state officials also held until relatively recently.² In November 2015, the U.S. Department of the Interior issued an opinion and legal conclusion on the boundary dispute, finding that the Band's reservation, as it was established by the 1855 Treaty, remains intact. U.S. Dep't of the Interior: Office of the Solicitor General, M-37032 Op. (2015).

Historically, criminal jurisdiction in Indian Country was shared between the federal government and tribal governments with little interference from state governments. In 1953, Congress enacted Public Law 280, which transferred federal law enforcement jurisdiction to the State for certain tribes, including the Band. Act of Aug. 15, 1953, Pub. L. No. 280, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162 ; 25 U.S.C. §§ 1321 – 1326 ; 28 U.S.C. § 1360 ).

Minnesota Statutes section 626.90 (2020) establishes a statutory framework for cooperation between Mille Lacs County law enforcement and the Band's law enforcement. The statute gives the Band the powers of a law enforcement agency under state law when certain conditions are met. Minn. Stat. § 626.90, subd. 2(a). Section 626.90, subdivision 2(b), directs the Band to enter in to "mutual aid/cooperative agreements with the Mille Lacs County sheriff ... to define and regulate the provision of law enforcement services," including defining the trust property covered by the agreement. Id. , subd. 2(b). The parties entered into a cooperative agreement in 2008.

Under section 626.90, once the Band satisfies the conditions for becoming a law enforcement agency and enters into a cooperative agreement with the County, the Band is "authorized to appoint peace officers ... who have the same powers as peace officers employed by local units of government." Id. , subd. 3. Those Band-appointed peace officers have concurrent jurisdictional authority with the Mille Lacs County Sheriff's Department over all persons in the geographical boundaries of the Trust Lands, and over all Minnesota Chippewa tribal members within the boundaries of the 1855 Treaty Lands. Id. , subd. 2(c)(1)–(2). In addition, the Band has concurrent jurisdiction over any person who commits or attempts to commit a crime in the presence of a Band peace officer within the boundaries of the 1855 Treaty Lands. Id. , subd. 2(c)(3).

In January 2016, the U.S. Department of Justice granted the Band's request that the federal government once again assume concurrent criminal jurisdiction on the Band's reservation under the Tribal Law and Order Act of 2010. This decision meant that the federal government could now prosecute major crimes in federal court such as murder, rape, felony assault, and felony child abuse that occur on reservation lands. The decision did not take away the right of tribal, state, and county officials under Public Law 280 to prosecute those crimes in state court.

On June 21, 2016, approximately 7 months after the federal government issued its opinion regarding the reservation boundary, and nearly 6 months after the federal government granted federal jurisdiction under the Tribal Law and Order Act, the county commissioners voted to revoke the 2008 cooperative agreement. On July 1, 2016, under Minn. Stat. § 8.07 (2020), Walsh requested that the attorney general issue an opinion on how to proceed with the Band following the revocation of the cooperative agreement. The attorney general declined to issue an opinion to Walsh, claiming that its office "was not authorized to issue an opinion regarding the matter," and directed Walsh to "advise the County as you deem appropriate."

On July 18, 2016, Walsh issued an opinion from his office stating that, among other things, after the termination of the cooperative agreement, the Band's law enforcement authority would now be limited to the Band's members who commit crimes occurring within the boundaries of the Trust Lands. The Band's peace officers would no longer have law enforcement authority over non-Band members within the boundaries of the Trust Lands and no law enforcement authority in 1855 Treaty Lands outside the boundaries of the Trust Lands. See Mille Lacs Band of Ojibwe , 508 F. Supp. 3d at 493–94.

On July 22, 2016, the cooperative agreement between the Band and the County ended.

Federal Lawsuit

In November 2017, the Band sued Walsh and Lorge in both their individual and official capacities in federal court. Mille Lacs Band of Ojibwe , 508 F. Supp. 3d at 486, 492. The Band claimed that the restrictions Walsh and Lorge were attempting to place on the law enforcement authority of the Band's peace officers violated federal law. Id. at 502–03. In addition, the Band claimed that Walsh threatened the Band's peace officers with arrest and prosecution should they exercise law enforcement authority on non-Trust Lands within the reservation or with respect to non-Band members. Id. at 497–98. The Band also claimed that Walsh asserted that he would not prosecute criminal cases based on investigations conducted, or evidence gathered, by the Band's officers on non-Trust Lands within the reservation or with respect to non-Band members; and that Lorge and Walsh instructed deputies not to arrest suspects apprehended by the Band's officers exercising their authority. Id. at 494–97. Finally, the Band alleged that Walsh and Lorge took such actions "on behalf of the County and are the official custom or policy of the County."

The Band sought a declaratory judgment that its peace officers have the authority to investigate violations of federal, state, and tribal law within all the 1855 Treaty Lands. The Band also requested a declaratory judgment that it has the authority to apprehend suspects that are not Band members. Id. at 505. Further, the Band sought an injunction stopping Walsh and Lorge from taking action that interferes with the authority of the Band's peace officers. Id. at 510–12. On March 4, 2022, the federal district court partially granted the Band's motion for summary judgement, issuing an order stating that "the Mille Lacs Reservation's boundaries remain as they were under Article 2 of the Treaty of 1855," which comprises approximately 61,000 acres of land. Mille Lacs Band of Ojibwe v. County of Mille Lacs, Minn. , ––– F. Supp. 3d ––––, ––––, No. 17-CV-5155, 2022 WL 675980, at *40 (D. Minn. March 4, 2022). The federal district court "affirm[ed] what the Band has maintained for the better part of two centuries—the Mille Lacs Reservation's boundaries remain as they were under Article 2 of the Treaty of 1855." Id.

This Case

On December 12, 2017, the county board agreed to cover the attorney fees incurred by Walsh and Lorge for using outside counsel to defend against the Federal...