Minnesota, South Dakota join county in suit against Ojibwe

By Joel Stottrup, Princeton Union-Eagle E-Mail: pueproduction@ecm-inc.com

Minnesota and South Dakota have filed legal briefs in court supporting Mille Lacs County and First National Bank of Milaca in their litigation over Indian reservation boundaries.

The attorney general’s office in those two states filed amicus curiae (friend of the court) briefs last Friday.

The briefs side with the county and bank in asking that the 8th Circuit Court of Appeals reverse a federal court judge’s dismissal last May 6 of the case the county and bank had brought against the Mille Lacs Band of Ojibwe.

The county and bank filed a lawsuit Feb. 19, 2002, asking the federal court to determine whether the contention of the Ojibwe band and that of some federal agencies was true that the band continues to have a reservation of 61,000 acres.

That territory would cover the northern Mille Lacs cities of Isle, Wahkon and Onamia and the townships of Kathio, South Harbor and Isle Harbor. That’s the size of the band’s reservation in 1855.

But the county and bank, point out that the band had ceded the land to the federal government in 1863-64. The county and bank also note that the federal government allowed Indians to remain on the land past 1864 as a privilege, even though the band had ceded the land away.

The county and bank further contend that the federal Nelson Act in 1889 relinquished the band’s right to occupy the 61,000 acres. The county and bank say the approximately 4,000 acres of trust land for the band that contains its tribal government center, schools, many residences and its casino along Mille Lacs Lake are the only thing that could be the band’s reservation.

The Band of Ojibwe called for a summary judgment to dismiss the lawsuit and federal Judge James Rosenbaum listened to arguments from all sides last Jan. 24 in front of a packed gallery in the federal courthouse in St. Paul.

Rosenbaum grilled attorneys from both sides, particularly questioning the plaintiffs why he, Rosenbaum, should take up the case of determining reservation boundaries. He asked the plaintiffs if they could prove any harm existed from there being a question over the boundaries

Rosenbaum released his dismissal decision on May 6 but the county and bank kept the litigation alive by meeting the deadline late last month to file an appeal with the 8th Circuit Court of Appeals.

The Circuit Court has scheduled oral arguments in front of a three-judge panel in a Twin Cities federal courthouse in October, date to be set.

While Mille Lacs County Attorney Jan Kolb last Friday told the Union-Eagle that the Minnesota attorney general’s office had all along spoke about supporting the county and bank’s case, there was nothing formal until now.

The amicus briefs were filed Aug. 29 and Kolb received them Sept. 2. Mille Lacs County Commissioner Dick Satterstrom, who represents the city of Princeton, was asked Monday for a response to the briefs.

“It’s always better to have support,” he said. But he added that he can’t get “too excited” when the amicus brief is not from the federal government.

Satterstrom has been consistently voting against paying the county’s legal bills to fund the lawsuit appeal. During the Aug. 19 county board meeting when a bill came for action, fellow commissioner Bob Hoefert of Isle joined Satterstrom in casting a no vote.

Commissioners Phil Peterson of Milaca, Frank Courteau of Isle and Robert Neske of Princeton voted yes.

Satterstrom told the Union-Eagle last week that while he didn’t know if he would have voted to file the lawsuit, he was against the appeal.

Satterstrom noted that he wasn’t a commissioner when the lawsuit was filed. Satterstrom said he has talked to various groups of people who think the county and bank will lose the appeal.

“Not that I’m a big Judge Rosenbaum fan, but I guess he had a point,” Satterstrom said “What’s the problem [that a lawsuit has to be heard]?”

The Union-Eagle received a response from Hoefert Monday evening as to why he voted no on paying the legal bills on Aug. 19.

“Because I didn’t have an accounting of what accounts had been spent on,” he said. Hoefert was referring to the county having two appeals going.

One is for the lawsuit dismissal and the other is for the federal government granting the Indian band the right to build a wastewater treatment plant along Lake Mille Lacs. The county is fighting the wastewater plant idea, it says, because the federal government is stating that it is on a 61,000- acre reservation. If the Environmental Protection Agency had said the plant would be on the band’s few thousand acres of trust land, that would be different, Hoefert explained.

Hoefert said it was not explained to the board on Aug. 19 how the legal bills from the Winner, S.D., office of attorney Tom Tobin were broken down for the two appeals.

Since then, Hoefert said, he has learned that $50,000 has been spent so far on the lawsuit appeal and about $16,000 for the wastewater plant appeal.The county has spent about $1.13 million so far on all litigation in the boundary dispute.

The amicus briefs

The Minnesota attorney general’s office begins its amicus brief filing with a letter addressed to the 8th Circuit Court of Appeals based in St. Louis.

In the letter, Minnesota Deputy Attorney General Ken B. Peterson writes that the state, not the Mille Lacs band, has jurisdiction over all public water bodies and land not held in trust within the boundaries of the original 1855 reservation.

“In addition to ending the contention between band members and nonband members living in the area, the state, for its own interests, would like the reservation boundaries issues resolved,” the letter continues.

The letter states that the first interest is financial. It cites the First National Bank’s brief contending that the band’s claim of an enlarged reservation has had an adverse impact on the market value of land the bank holds as security within those boundaries.

The letter points to an affidavit that a licensed appraiser practicing more than 20 years in the Lake Mille Lacs area has submitted for the bank. The affidavit, the letter states, tells of depressed market prices for land within the 1855 reservation area due to uncertainty over present-day boundaries.

The state’s second interest in the case, Peterson continues, is protecting the state’s authority to regulate environmental activity in the state. The band, the state’s pollution control authority and the EPA ended up signing a memorandum to work on the treatment plant project with the understanding that the project does not mean the reservation dispute is resolved either way.

Peterson continued that the federal courts are much better suited than administrative agencies for resolving complex issues in cases such as the boundary dispute.

He also said the state has sought practical ways to address any problems such as law enforcement in the Mille Lacs Lake area but that they have been tenuous remedies on a case-by-case basis. They have still not addressed the core issues underlying the dispute, Peterson wrote.

South Dakota’s brief

South Dakota’s brief points out that South Dakota has a number of Indian reservations and urges that federal courts resolve disputes involving reservation boundaries and the existence of reservations “whenever possible.”

South Dakota’s brief called Judge Rosenbaum’s decision to dismiss the case brought by Mille Lacs County and First National Bank of Milaca “erroneous.”

The dismissal order “did not resolve this case or controversy in accordance with settled law in the Eighth Circuit,” the South Dakota brief states.

The brief then referred to various case law examples to support its view. Therefore, South Dakota supports reversal of the summary judgment entered by the U.S. District Court for the District of Minnesota, it said.

South Dakota Attorney General Lawrence E. Long’s name is attached, along with that of Deputy Attorney General John P. Guhin.

“We’re very excited about that,” said Mille Lacs County Attorney Kolb about the briefs submitted by Minnesota and South Dakota. The boundary dispute has to be decided “one way or another,” she added.

When Kolb was asked why that is so important, she said the issue of the boundaries comes up on “almost a daily basis,” saying real estate transactions and highway projects are examples.