Minnesotans should be concerned about a court ruling calling for the continued existence of the former Mille Lacs reservation. PERM’s concerns include the impact a ruling would have on the area’s natural resources. Multiple agencies (without any hierarchy of authority) would be governing these resources. This would create an endless source of conflict.
An analysis by attorney Randy Thompson, reported in the Mille Lacs County Newsletter, details a long history that supports a case that the reservation was terminated. While Mille Lacs County and its legal team respect Judge Nelson’s ruling, they believe her conclusion is incorrect. There are substantial reasons to think that the Eighth Circuit Court of Appeals could reach a different conclusion.
He notes that the continued federal expansion of tribal authority over time (above and beyond original treaty language) amplifies the issues created by the “restoration” of the Mille Lacs reservation. This increases the chances that non-Band members could be denied their constitutional rights by being under the jurisdiction of a tribal government in which they cannot participate, even for activities occurring in their own homes or on their own land!
Should the Band be successful in re-establishing the reservation, there is little reason to believe these issues will not confront Mille Lacs. It is for this reason the County continues to believe the reservation status must be fully and definitively adjudicated.
It is for this reason the County continues to believe the reservation status must be fully and definitively adjudicated.
Read more below.
The Mille Lacs Reservation Decision and What the Future Holds
By: Randy V. Thompson, Esq Mille Lacs County Newsletter
On March 4th, United States District Court Judge Susan Richard Nelson issued a ruling that that the 61,000 acres established under the 1855 Treaty at Lake Mille Lacs had never been disestablished. Over the course of 93 pages, Judge Nelson walks through why she believes almost 170 years of treaties and statutes do not show clear Congressional intent to terminate the Mille Lacs Reservation.
From the County’s perspective, while we respect Judge Nelson’s ruling and the way she has presided over this complex case, we believe her conclusion is incorrect. We also believe there are substantial reasons to think that the Eighth Circuit Court of Appeals could reach a different conclusion. The record in this case contains a long history that supports the understanding that the reservation was terminated, including:
** Created by an 1855 Treaty, the Mille Lacs Reservation was “ceded” to the United States in an 1863 Treaty. Under Article 12 of that treaty, the Mille Lacs Band were not required to leave the land as long as they did not interfere with the settlers’ persons and property.
** The Band’s Article 12 rights were later relinquished to the United States under the Nelson Act in 1889.
** In February 1875, in a meeting with the Commissioner of Indian Affairs, Shaboshkung, the principal chief of the Band at the time, admitted he signed the 1863 Treaty giving away their land. At the same meeting, the Commissioner explained that the Band had no reservation unless Congress changed the treaty.
** Two opinions issued by the Secretary of Interior, one in 1877 and another one in 1891, found that Mille Lacs was a “former reservation” and “not a reservation.”
** Two Congressional resolutions, in 1893 and 1898, affirmed those decisions by the Secretary of Interior by opening the entirety of the “former reservation” at Mille Lacs to settlement and land sale to non-Band members.
** In 1902, Congress appropriated $40,000 for payments to the Mille Lacs Indians who remained at Mille Lacs as reimbursement for their improvements on condition they relocate to the White Earth Reservation and take their allotments there.
** In a 1902 agreement between the United States and the “Mille Lac Chippewa Indians residing on the former Mille Lac Indian Reservation,” the Mille Lacs Indians, and their legal counsel, agreed to relocate to White Earth and take their allotments there. According to the contemporaneous “Treaty Journal” that documented the details of the agreement, the principal Chief for the Mille Lacs Band acknowledged that Mille Lacs is a “former reservation.”
** A 1912 legal brief filed by the Mille Lacs Band to the Court of Claims stated that the Mille Lacs Reservation was “extinguished as an Indian reservation.” The brief was written by one of the attorneys who represented the Band in the 1902 Agreement.
** In 1913, the United States Supreme Court stated that the Mille Lacs Band “relinquished” the reservation.
** In United States v. Minnesota (1926), the United States Supreme Court found that Minnesota had valid claims to swamp lands at Mille Lacs because the Court determined that the land was not part of a reservation.
** All 61,000 acres of the former reservation, except one 80.90-acre allotment, were sold to non-Band members.
** The Mille Lacs Band, through the numerous treaties and agreements over the last 170 years (including the 1913 Unites States Supreme Court decision), has received payment for all 61,000 acres of the former reservation (including the one allotment made to a Band member).
** A 1934 Department of Interior opinion stated that Mille Lacs is not a reservation and is different from Leech Lake and other Ojibwe reservations. What is referred to as the “Mille Lacs Reservation” in this opinion are the lands bought by the United States for Mille Lacs Band members at Vineland, Isle and in Pine County that are now known as “trust lands.”
** The 1936 Constitution of the Minnesota Chippewa Tribe listed all of the constituent Bands that owned a reservation; the Mille Lacs Band was not described as having a reservation.
** A long line of Supreme Court cases, beginning with Solem v. Bartlett, hold that there are certain words that show Congressional intent to disestablish a reservation including the words “cede,” “sell,” “relinquish” and “convey.” The Supreme Court has explained that when such terms are present in an agreement, accompanied by a commitment by Congress to pay the Indian tribe for the land, there is an “almost insurmountable presumption” that Congress intended to disestablish a reservation. These terms of art appear in three treaties that ceded the former reservation, and the Mille Lacs Band received payment for the former reservation.
Judge Nelson has scheduled a hearing for August 11, 2022 to hear Summary Judgment motions that have been filed by the Band regarding the remaining law enforcement issues and remaining motions by Defendants. Assuming Judge Nelson enters a final decision in the case following those motions, something that will probably occur in the fall of 2022, the case would then be appealable to the Eighth Circuit Court of Appeals.
The Impact of the Mille Lacs Decision
The Band has conducted a full public relations campaign—full-page advertising, social media posts, press releases and statements to the media—to convince people that nothing will change if the reservation still exists. A careful reading of those statements, however, will show that the Band never makes an unqualified commitment to that principle. As a result, it is unclear if and how the Band might exercise criminal or civil jurisdiction over non-members, their homes and lands, or their businesses. That deliberate lack of clarity is worrisome and of great concern to anyone who visits or lives and works in the three townships of Kathio, South Harbor and Isle Harbor, the three cities of Onamia, Isle and Wahkon, or the approximately 50,000 acres of non-member lands and homes that would be part of “Indian country” if the reservation was not disestablished.
Whether the original reservation still exists or whether the Band’s “Indian country” is limited to its 3,000+ acres of trust lands matters because of the continued federal expansion of tribal authority. Tribes, or the federal government, have the ability to regulate environmental matters affecting businesses and individuals under the EPA in lands that are considered “Indian country”—reservation lands or lands held in trust by the federal government for a tribe. Recently renewed amendments to the Indian Civil Rights Act contain a provision allowing tribes to bring a criminal prosecution for a trial in the tribal courts for a variety of offenses even if neither the offender nor the victim is Native. In 2017, the Mille Lacs Band applied for and received Special Law Enforcement Commissions for Band police officers to act with federal law enforcement authority within the 61,000 acres.
In addition, the National Congress of American Indians continues to advocate in the courts and in Congress for other changes including the ability to tax internet sales occurring on a reservation and giving tribes the ability to banish members and non-members from a reservation. Each of these expansions increases the chances that non-Band members could be denied their constitutional rights by being under the jurisdiction of a tribal government in which they cannot participate, even for activities occurring in their own homes or on their own land. Should the Band be successful in re-establishing the reservation, there is little reason to believe these issues will not confront Mille Lacs. It is for this reason the County continues to believe the reservation status must be fully and definitively adjudicated.
By: Randy V. Thompson, Esq.
NOLAN, THOMPSON, LEIGHTON & TATARYN, PLC
1011 1st Street South, Suite 410
Hopkins, MN 55343