MILLE LACS COUNTY Administrative Services Office
. 635 2nd Street SE
. Milaca, MN 56353
. Phone: (320) 983-8218
. Fax: (320) M3-8382
Office of Governor Tim Walz &
Lt. Governor Peggy Flanagan
130 State Capitol
75 Rev Dr. Martin Luther King Jr. Blvd.
St. Paul, MN 55155
Office of Minnesota Attorney General Keith Ellison
445 Minnesota Street, Suite
1400 St. Paul, MN 55101-2131
Dear Governor Walz & Attorney General Ellison:
Many Mille Lacs County residents independently informed us about the new Department of Transportation Road signs that were installed to mark the boundary of the 1855 reservation. We are very disappointed that these road signs were installed without any collaboration with, or communication to, Mille Lacs County.
We understand that these road signs are a direct result of your decision to change the State’s long-held opinion on the current boundary of the Mille Lacs Band’s reservation in February 2020. In doing so, the State relied on a Federal opinion that was deliberately withheld from Mille Lacs County for a period of months in 2015 to 2016 on orders from Washington, D.C. This information came from an Assistant United States Attorney familiar with those orders. The pattern of our own State and Federal government refusing to provide us information or collaborate with us regarding something that significantly impacts Mille Lacs County residents is concerning.
At the time you changed the State’s position, the enclosed guidance was given to the Department of Transportation regarding the “Clarification on the Mille Lacs Reservation Boundary.” That news release states: “MnDOT does not anticipate any major changes at this time and looks forward to working collaboratively with Mille Lacs County and the Mille Lacs Band of Ojibwe.” The placement of these signs is a significant change that was not done collaboratively with Mille Lacs County. Mille Lacs County would like a more collaborative relationship in the future to ensure that the voices of our citizens are heard before state policy is developed.
Much of our time the last few weeks has been taken up responding to constituent concerns regarding these signs. In response, Mille Lacs County has provided to a number of citizens a recently published Minnesota House Research publication entitled “American Indians, Indian Tribes, and State Government” to help our constituents answer their questions. Many residents of northern Mille Lacs County are concerned about the changing legal and regulatory environment that may take place if the 1855 reservation boundary is re-established. As this 157-page document describes, these issues are very complex. Some answers are not entirely clear and dependent on future developments, both legal and administrative at the State or Federal level. The consequences of other actions, such as the possibility of retrocession pursuant to 25 U.S.C. $ 1323, would also be significantly different depending on the boundary of the reservation.
There is ample evidence that the re-establishment of the 1855 treaty boundary could significantly impact Minnesota citizens living and owning property within that area. Environmental regulation is one area that has already changed since the State’s position on the boundary changed In February 2021. On a case-by-case basis, some businesses in the county have been n«if led that the Federal government has assumed environmental regulation from the Minnesota Pollution Control Agency regarding issues such as the regulation of underground storage tanks and the granting of stormwater permits.
As the House Research publication states, “State jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interested reflected in federal law, unless the State interests at stake are sufficient to justify the assertion of State authority.” Id at 6. (citing New Mexico v. Mescalero Apache Tribe, 462 IJ.S. 324, 334 (1983)). The State has not shown any recent interest in defending any interest of a non-Band member in northern Mille Lacs County. Where a tribe may pass an environmental regulation that is more stringent than federal law, tribal law will apply. Id at 68. Tribes are eligible to administer these environmental regulations against any resident of their reservation and even get financial assistance from the Federal government for doing so. Id. In conclusion, the document says: “State regulatory environmental statutes do not apply on Indian lands. The distinction between these two categories is not, however, a settled area of law.” Id
Another concern that many residents of northern Mille Lacs County have is provision of law enforcement services and the potential of being criminally prosecuted in tribal court. We understand that this is not something the Mille Lacs Band can currently do and that they say they have no plans to do so. However, it does not go unnoticed that just days ago ten former United States Attorneys, including Thomas Heffelfinger, drafted an Amici Curiae brief in a current Ninth Circuit case on appeal to the Supreme Court addressing the authority of tribal law enforcement, co-authored by former Chief Justice of the Minnesota Supreme Court, Eric Magnuson. In doing so, the brief sets forth in detail the perceived shortcomings of the current “Maze of injustice” resulting from “widely varying potential sources of substantive criminal law and byzantine rules for their application.” (With clear state criminal authority pursuant to Public Law 280, these issues are quite different in Mille Lacs County, absent BAQ retrocession that may be requested by the Mille Lacs Band.) U.S. v. Cooley, No. 19-1414, Amici Curiae brief dated January 15, 2021, at 18-25. Importantly, this brief cites with approval the findings of the Indian Law and Order Commission. Id. at 9 (citing ILOC, A Roadmap for Making Native America Safer, Report to the President and Congress of the United States (November 2013), available at https://www.aisc.ucla.edu/iloc/report).
The ILOC Roadmap requests that all tribes be allowed to “opt-out” of all state or federal criminal jurisdiction within their reservation and “be restored to their inherent authority to prosecute and punish offenders.” The ILOC Roadmap, Ch. 1 at 23 (noting that all “work-arounds” like cooperative agreements should be rejected}. This would apply to “all persons within the exterior boundaries of the Tribe’s lands as defined in the Federal Indian Country Act.” Id. The only concession required would be a promise to “afford all individuals charged with a crime with civil rights protections equivalent to those guaranteed by the U.S, Constitution,” appellate review by a new Article III Federal Court, and Federal habeas corpus remedies. Id. at 23-25. If this policy position is adopted as law, the re-establishment of the 1855 reservation boundary would be a monumental change for the residents of northern Mille Lacs County.
In hearing from our constituents, a common theme is that neither of your offices has taken their concerns into account. They do not feel as if they are being heard. They feel that they are being intentionally marginalized. We respectfully request that you provide an opportunity to personally listen to their concerns, some of which are listed above, and respond to them in a town hall forum. If you are willing to do so, this should be scheduled in advance to give people as much time as possible to make arrangements to attend and prepare any questions they have. Given the seriousness of the COVID-19 pandemic, we acknowledge that this may need to be a remote meeting, at your preference.
We look forward to hearing from you.
Mille Lacs County Board Chairperson