Both parties to the Mille Lacs reservation boundary dispute in U.S. District Court made requests for Summary Judgement. While summary judgments can sometimes lead to a quick resolution, there won’t be one in this case. The question of the Court actually having the jurisdiction to make a decision has led to the court stepping back and asking both parties for legal briefs on the jurisdictional issue. T.A.LeBrun’s report outlines various scenarios and options for litigation that could lead all the way to the Supreme Court.

From PERM’s perspective, the outcome of this case could have a significant impact on access to hunting and fishing for non-tribal citizens within the dis-established Mille Lacs reservation.

Read more below.

Boundary Battle

By T.A.LeBrun, Editor, Mille Lacs Messenger

March 23, 2021, A summary judgment hearing regarding the Mille Lacs of Ojibwe’s lawsuit on the boundary issue was held at 2 p.m. On Monday, March 15 before Judge Susan Richard Nelson in U.S. District Court. The summary judgment hearing, a hearing where a court can grant a summary judgment either for or against a party in a lawsuit where there are no material facts in dispute was held specifically to determine whether the l855 Mille Lacs Band of Ojibwe Reservation was disestablished or whether it still exists today.

If the court grants summary judgment for the Band, then the 1855 Reservation boundaries would still exist, pending appeal. And likewise, if the court grants summary judgment to Mille Lacs County, then the I855 Reservation no longer exists, pending appeal.

The County argued the for­mer 1855 Reservation was disestablished by subsequent treaties in 1863 and 1864, the Nelson Act of I889, Resolu­tions of Congress in 1893 and 1898, and the 1892 Agreement.

The Band believes the 1855 Reservation was never dises­tablished and still exists today and argued that the Nelson Act did not disestablish the reservation and that there was no clear congressional intent to disestablish. Along with nu­merous other arguments, attorneys for the Band also argued that certain acts after the Nelson­ Act referred to the Reservation as existing.
Another issue was brought up as to whether the court has ju­risdiction to decide whether or not the Reservation still exists. The Band’s attorney argued that the district court lacks jurisdiction to make this decision because the county attorney and sheriff have appealed a previous district court order which the Band argued deprives the court to proceed with oral argument on the boundary dispute. The County argued that the court has the discretion to decide the boundary issue because the law enforcement interference issue on appeal is legally separable from the boundary dispute. The Band, however, did ask the district court to proceed with oral argument on the boundary dispute.

The district court stated it would not decide the boundary issue until it was convinced it had jurisdiction to do so and ordered the parties to submit legal briefs on the jurisdictional issue, The Band’s brief is due March 29 and the County’s brief is due April 12.

Brief Litigation History

The Band and County each filed summary judgment motions last summer on whether the district court had standing to hear the Band’s claim that its law enforcement authority had been interfered with by the County in the aftermath of the July 2016 revocation of the law enforcement cooperative agreement between the County and the Band.

On December 21, 2020, the district court granted the Band summary judgment that it had standing to hear the law enforcement interference claims and denied the County’s summary judgment motion on a variety of issues including subject matter jurisdiction, constitutional grounds, prosecutorial immunity, qualified immunity, and other legal issues. On January 20, of this year, lawyers on behalf of the county attorney and sheriff filed a notice of appeal to the federal 8th Circuit Court of Appeals. The opening brief by the county attorney and sheriff are due April 1, 2021.

Next Steps

The district court will need to decide whether it has jurisdiction to decide the boundary issue before it can make a summary judgment. The district court could decide it has jurisdiction to decide this issue after parties brief the issue. If the district court decides it does not have jurisdiction, then it would likely wait to decide the boundary dispute until after the county attorney and sheriff’s 8th Circuit appeal is decided. If the district court decides it does have jurisdiction, then it could issue an opinion at any time, likely in a matter of months.

Either party, the Band of the County, can appeal the judge’s ruling on the boundary dispute. The party that loses is likely to appeal, according to the legal defense for the County. The appeal would be to the 8th Circuit Court of Appeals.

Assuming the boundary dispute is appealed, the 8th Circuit will decide that issue typically within a year. The 8th Circuit could do a number of things including affirming the district court’s ruling, reversing the district court’s ruling, or remanding the case back to the district court for further consideration.

Headed for the U.S. Supreme Court?

After the 8th Circuit issues its opinion, then the parties would have the option of seeking further review in the United States Supreme Court in what is called a “petition for a writ of certiorari.”

The U.S. Supreme Court grants very few cases further review, according to Brett Kelly of Kelly, Wolter, & Scott Attorneys at Law who are a part of the legal defense of the County. “If it does, then the Supreme Court would require further briefing and may grant oral argument. This process could take one to two years,” said Kelly. He added, however, that this case seems like one the Supreme Court would grant further review.

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