Governor Walz snd Attorney General Ellison’s decision to change the State’s long-held opinion on the current boundary of the Mille Lacs reservation is a critical issue for all Minnesotans.
Last week T.A. LeBrun reported on a letter from Mille Lacs County Commissioners to Gov. Walz and Attorney General Ellison “Mille Lacs County sends letter to Gov. Walz and Attorney General Ellison” Mille Lacs Messenger, Feb 10, 2021.
The Commissioners wrote about the 1855 Mille Lacs Band’s boundary signs around the original 61,000-acre reservation. They “were very disappointed these road signs were installed without any collaboration or communication.” Commissioners first learned about the signs from County residents. (Letter available here). Commissioners recognized signage touting disputed reservation boundaries was the direct result of Walz and Ellison’s decision to change the State’s long-held opinion on the current boundary. They asked Walz and Ellison to address and hear from the citizens who would be impacted by their decision on the boundaries.
A key argument in the Commissioners’ letter is that the Indian Claims Commission Act bars the resurrection of the 1855 Treaty-created reservation. Here is a brief statement as to why it’s barred.
Why it’s barred
The Indian Claims Commission Act was signed into law in 1946. It created a special judicial body before which Indian tribes could file claims of all kinds against the U.S. government. It covered claims all the way back to the American Revolution in 1776. The purpose of the Act was to “settle once and for all every claim,” including loss of treaty rights, loss of land, and other injustices tribes could claim to have endured. It even included violations of “fair and honorable dealings”—claims having no law in place for or against such dealings.
In order to be valid, however, the claims had to be brought within five years of passage of the Act. Claims brought after August 13th, 1951 would be forever barred by the statute. Yet, as we have seen, claims that arose from events prior to 1946 continued to be brought by Indian tribes.
In 1965, the ICC awarded the Chippewa, including the Mille Lacs Band, $33 million (in current dollars) for insufficient payment under the 1855 Treaty. As with all ICC cases, the Chippewa, by accepting payment, were forever barred from future claims under the 1855 Treaty.
In 1973, the Chippewa returned with more claims. This time the ICC awarded the Chippewa, including the Mille Lacs Band, $55 million (in current dollars) for claims under the 1837 Treaty, including claims for lost hunting and fishing rights. The ICC payments were based on the maximum value of the land, which was timber. In return, the Federal government acquired “recognized title” the most complete form of ownership.
Obviously, there could be no haggling over additional payments on the sale of goods if no goods were ever sold.
Despite the historical facts, Governor Walz and Attorney General Ellison have chosen to very publicly take sides in a lawsuit. And they are siding with an entity claiming sovereignty distinct from the State–not with the citizens they govern, the citizens who elected them to office. They would rather leverage identity politics for political advantage.
Now, the Mille Lacs County Commissioners are challenging a similar decision based on politics. This time it is apparently made by the Dept. of Transportation, a huge $4 billion bureaucracy, instead of Constitutional Officers.
Citizens’ concerns brought up in the letter include:
** Ignoring complex legal and regulatory issues—These are issues that still need answers from the courts and for un-assessed administrative challenges from any attempt to recreate a long-disestablished reservation.
** Ignoring the County’s legal and property rights—The State and Federal government have an ongoing pattern of refusing to collaborate or even provide information to the County with something as major as recreating a reservation. The pattern goes back years.
** Expanded law enforcement jurisdiction—Residents are concerned that locking in the Tribe’s expanded boundary claims would allow the tribe to greatly expand its law enforcement jurisdiction. Citizens who live and own property within the area could face an entirely new set of environmental regulations, as well as answering to tribal law enforcement and prosecution.
** Criminal prosecution in tribal court—Not to worry? “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. It was co-authored by former Chief Justice of the MN Supreme Court, Eric Magnuson.
This brief cites the Indian Law and Order Commissioner’s report “A Roadmap for Making Native America Safer.” The report was sent to the President and Congress in November 2013. (A Roadmap available here).
“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 Roadmap notes that all “workarounds”—like cooperative agreements—should be rejected). This would apply to all persons within the boundaries of the reservation. The tribe’s only concession 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…”
Finally, the Commissioners called for a town hall forum by Gov. Walz to provide concerned residents an opportunity to express their concerns.
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