NOTE: PERM wishes to reprint the article from the Mille Lacs Messenger (see below) to help clarify the controversy around Mille Lacs County Board’s decision to not renew law enforcement agreement with Mille Lacs Band. Recognizing the 61,000-acre reservation could allow for an extra layer of regulations on natural resources as well as with the other issues in the County’s claims.
We see how co-management of Mille Lacs does not work therefore we support Mille Lacs County Board in their latest efforts.
Douglas J. Meyenburg
County claims reservation causes harm due to uncertainty
By Vivian LaMoore – Mille Lacs Messenger – Wednesday, February 7, 2018
Mille Lacs County responds to Band lawsuit filed in federal court at same time files a counterclaim
Mille Lacs County filed a response to the federal lawsuit filed by the Mille Lacs Band last November. The county has added a counterclaim. In a nutshell, the county’s response and counterclaim is aimed solely on the boundary issue and claims the Mille Lacs Band reservation does not exist. The county says the uncertainty is causing harm.
The Mille Lacs Band of Ojibwe filed a lawsuit in federal court in November of 2017 against Mille Lacs County as a whole and individually included the Mille Lacs County sheriff and county attorney. Late in December 2017, Mille Lacs County filed a response and included a counterclaim adding several members of the Band government and individually tribal police chief Sara Rice and sergeant Derrick Naumann.
The counterclaim also names the following Mille Lacs Band government officials: chief executive Melanie Benjamin, secretary/treasurer Carolyn Shaw-Beaulieu, District I representative Sandra Blake, District II representative David Aubid, District III representative Harry Davis; all individually and in their official capacity with the Mille Lacs Band.
The four counts to the counterclaim are requesting the court provide the following:
- Declaratory judgement of disestablishment of the 1855 reservation;
- Enjoining the exercise of federal and inherent criminal law enforcement outside of trust lands;
- Declaratory judgement the Band is estopped from contesting the reservation status;
- Declaratory judgement that the Indian Claims Commission Act bars the resurrection of the 1855 reservation.
[Definition of declaratory judgement via law.com: “a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited ‘advisory opinion,’ it is allowed to nip controversies in the bud.”]
In a nutshell, the county is requesting the federal court to rule: to declare the disestablishment of the 1855 treaty; prohibit tribal criminal law enforcement outside of trust land; prevent the Band from approaching the subject of questioning the status of the reservation anytime in the future; and lastly, prohibit any resurrection of the 1855 treaty.
The Band claim
The basis of the lawsuit filed by the Band revolves around their claim the lack of a cooperative law enforcement agreement with the county has limited law enforcement by tribal officers and thereby caused harm to the community by an increase in crime and drug use resulting in 15 overdose deaths since the revocation of the law enforcement agreement.
The Band has held true to their belief the 1855 treaty has never been disestablished. The Band’s original complaint (lawsuit) is an eight page document. In that complaint the Band states the reservation was established by a treaty in 1855 and comprises approximately 61,000 acres. Part of that is in federally protected trust land (3,572 acres) and part of that is owned by the Band in fee lands (6,122 acres). The remaining land is not mentioned in the Band’s complaint, other than the remaining acreage of approximately 51,306 acres remain within the boundary of the originally 1855 treaty. The Band’s complaint states Band members live throughout the entire 61,000 acres of the 1855 treaty. The Band’s complaint is requesting concurrent jurisdiction of criminal law enforcement over the entire 61,000 acres to ensure the safety of all Band members.
The Band complaint references the existence of the 1855 treaty and the establishment of the 61,000-acre reservation no more than two times.
The county’s response and counterclaim is a 34 page document. Within that document the county mentions reference to the county’s longstanding belief that the reservation of the 1855 treaty was disestablished and not ever re-established no less than 60 times. The county “denies that the reservation still exists.”
The county denies many of the points raised by the Band’s complaint. The county counterclaim must show harm, according to the U.S. Supreme Court rule of standings. The counterclaim states the harm comes from the dispute over the existence of the 1855 reservation has “created controversy, uncertainty and risk, and has injured the county in the exercise of its criminal and civil regulatory authority outside of trust lands.”
The counterclaim states the uncertainty over the existence of the 1855 reservation “causes conflict and uncertainty affecting the lives and property of county residents on a daily basis.” The county claims the “uncertainty” has resulted in an “undermine property tax values for on fee lands within the original boundaries of the 1855 reservation, and reduce the tax base and income for the county accordingly.”
The county counterclaim states: “non-Indians are also of the view that reservation status is a very serious and unsettling issue. Some have publically acknowledged considering selling their property and moving elsewhere. Others on both sides, have discussed the issue in terms that increase divisiveness and animosity, creating an atmosphere of distrust and social unrest in this rural area.”
Proof of actual harm
This case has been filed in federal court. The U.S. Supreme Court ruled 6-2 on May 16, 2016, in Spokeo, Inc. v. Robins, No. 13-1339, that a plaintiff must allege “concrete” and “actual” harm in order to sue in federal court, according to squirepattonboggs.com. In other words, the plaintiff, in this case both plaintiffs, must show there has been real harm caused by the actions of the defendant.
The Band is the original plaintiff, therefore must prove the defendant, the county, has caused harm to the Band. Since the county filed a counterclaim and is thereby the counter plaintiff, the county must prove the Band has caused harm to the county.
As of press time, no further action has been taken by the court.