PERM is reporting on the Mille Lacs Messenger’s recent article to keep this issue before the public, and to encourage support for equal protection of the law for all Minnesota citizens.
Briefly, on December 21 U.S. District Judge Susan Richard Nelson ruled in favor of the Mille Lacs Band’s lawsuit over the boundary issue. The County’s position is that the 1855 Treaty Reservation was terminated by Congress through subsequent treaties, statutes, and agreements. Tribal policing efforts thus are limited to the 3,500-acres of trust land being considered a reservation. The Mille Lacs Band position is that the boundaries have never been dissolved by Congress and policing jurisdiction covers the entire dis-established reservation.
The lawsuit claimed that Mille Lacs County’s position on policing jurisdiction, including County Attorney Joe Walsh and Mille Lacs County Sheriff Don Lorge, interferes with the Band’s law enforcement authority.
The Court’s December ruling found Mille Lacs Band did have standing to pursue claims against the County and can include the County Attorney and Sheriff in those claims. The Court added that Walsh and Lorge were not entitled to immunity under the Tenth or Eleventh Amendment.
County Attorney Walsh and Sheriff Lorge appealed this decision in the 8th Circuit Court of Appeals. If their appeal succeeds, and Walsh and Lorge should be dismissed, the Band’s lawsuit over the boundary issue would proceed solely against Mille Lacs County.
As a result of this appeal, the District Court must stand down until the Appeals Court rules on Walsh and Lorge’s appeal. This is based on a general rule that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.
The Band was given more time–by June 2, 2021–to respond to Walsh and Lorge’s appeal. After which, Walsh and Lorge have until June 14 to file a reply brief. It could take until late 2021 or early 2022 for the Appeals Court’s ruling. After that it could go to the US Supreme Court, adding another two years if it gets accepted.
Boundary issue awaits appeal in 8th Circuit Court
By T.A. LeBrun May 12, 2021
Judge determines U.S. District Court does not have jurisdiction until appeal is resolved
U.S. District Judge Susan Richard Nelson has halted, or stayed, proceedings regarding the Mille Lacs Band of Ojibwe Reservation boundary issue filed against Mille Lacs County by the Band stating the district court lacks jurisdiction to make a summary judgment decision until a pending appeal is resolved.
The stay was ordered on April 14 by Judge Nelson due to an appeal by Mille Lacs County Attorney Joe Walsh and Mille Lacs County Sheriff Don Lorge on the law enforcement jurisdiction opinion issued by Judge Nelson on Dec. 21, 2020. In her December opinion, Judge Nelson sided with the Mille Lacs Band and stated that the court found standing by the Band to pursue claims that the county attorney and sheriff interfered with the Band’s law enforcement authority. Judge Nelson also stated that Walsh and Lorge are not entitled to immunity from the lawsuit under the Tenth or Eleventh Amendment. The appeal seeks review of the immunity issue and whether Walsh and Lorge should be dismissed for lack of subject matter jurisdiction. If they are dismissed, the Band’s lawsuit over the boundary issue would proceed solely against Mille Lacs County.
The subject of the appeal gives standing to the Band to proceed with the boundary issue and is a critical piece in their claims against the County.
In Judge Nelson’s recent order to stay the case until the appeal, which is now in the 8th Circuit Court of Appeals, is resolved, she noted several reasons for doing so.
Reason for stay
Judge Nelson noted that as part of cross-motions for summary judgment, the Band raised concern that Walsh and Lorge’s notice of appeal divests, or deprives, the U.S. district court of jurisdiction to rule on the boundary issue.
She stated that as a general rule a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. She added that the filing of the appeal has jurisdictional significance and grants jurisdiction to the court of appeals, taking away jurisdiction of the district court and its control over those aspects of the case involved in the appeal.
She cited court precedent noting “the federal district court cannot take any action that would ‘alter the status of the case as it rests before the Court of Appeals.’”
Also noted was promoting judicial economy as it spares a trial court from considering and ruling on questions that possibly will be mooted by the decision of the court of appeals. Secondly noted was the promotion of fairness to the parties who might otherwise have to fight a confusing “two front war” for no good reason, avoiding possible duplication and confusion by allocating control between forums.
The Band was granted an extension to respond to the appeal by June 2, 2021. Walsh and Lorge will then have an opportunity to file a reply brief by June 14. Brett Kelley, of Kelley, Wolter & Scott Attorneys at Law, estimates the 8th Circuit of Appeals opinion won’t come until late 2021 or early 2022.
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.” If the case is taken up by the Supreme Court, the process could then take one to two years.
Once this appeal is complete, Judge Nelson would regain jurisdiction to rule on the boundary issue.
Legal costs mounting
Being that the district court will not rule on the reservation status issue any time soon, the question of legal expense to County taxpayers comes into play.
To date, the County has spent $6,323,443.89 since 2018 on legal fees defending the lawsuit by the Band. When asked about legal expenses, Kelley stated that, except for the appeal expenses, the legal fees will largely be put on hold for the rest of 2021. “The stay likely will only delay the legal expenses in the lawsuit but shouldn’t ultimately impact the amount significantly one way or the other,” he noted.
The Mille Lacs Band, when asked by the Mille Lacs Messenger, would not disclose their cost for legal fees citing sovereignty from state open data law.
In summary of the lawsuit, the County’s stance is that the 1855 Treaty Reservation was terminated by Congress through subsequent treaties, statutes and agreements with the Mille Lacs Band and that county law enforcement did not interfere with tribal law enforcement’s ability to police. The Band’s stance is that the boundaries have never been dissolved by Congress and that county law enforcement undermined tribal policing thus causing an influx of criminal activity.
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