Update on the Tribal Related Litigation

By Randy V. Thompson, Esq. Mille Lacs County Quarterly – April 2019

Even occasional readers of this newsletter have likely noticed that a federal lawsuit – brought in November 2017 by the Mille Lacs Band against the County, the Sheriff and the County Attorney – is a frequent topic in these pages. The Band wants a judgment that the 61,000-acre Mille Lacs Reservation, an area established by the Treaty of 1855 that includes the three northern townships of Kathio, South Harbor and Isle Harbor, still exists. It also seeks a declaration that the County, the Sheriff and the County Attorney interfered with the Band’s law enforcement authority. The County and the State disagree: the reservation was disestablished long ago.

What is less often discussed, though, is the “why” underpinning this dispute: Why does it matter if the reservation still exists?

To answer that question, we need to first define some terms. An Indian reservation constitutes “Indian country” under a federal criminal statute. Indian country, in turn, is defined in federal law as “all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation…”

Thus, if the 1855 boundaries are held to still exist, all the land, whether owned in trust or in fee, and all the roadways in the three townships, would be considered Indian country. The area and its residents would potentially be subject to both federal and tribal jurisdiction.

Under this scenario, the Band would almost certainly claim hunting and fishing privileges within the reservation that would be separate from the 1837 Treaty hunting and fishing rights. It also would likely claim that the reservation included the part of Lake Mille Lacs that is south and west of a line running roughly from Vineland on the west to Isle in the southeast. The Band might claim jurisdiction over those waters, including authority over fishing and other activities, similar, perhaps, to the claims by the Red Lake Band to a portion of Red Lake. That claim could impact the rights of property owners in the area, including, perhaps, restrictions on docks.

Currently, the Band does not have hunting rights on privately owned lands, but private lands lying within a reservation may be subject to such rights. The Band could not access private property without permission, but it could nonetheless impact those properties if they were adjacent to members’ properties or other private lands that could be hunted with permission under tribal regulation.

Should the reservation boundaries be restored, the federal government would assert regulatory authority within Indian country, including federal law enforcement authority through the BIA, the FBI or other federal law enforcement agencies to pursue all manner of crimes throughout the three townships.

The federal government would assert regulatory authority beyond law enforcement. The Environmental Protection Agency would displace the Minnesota Pollution Control Agency, in regulating environmental matters in the three townships, meaning regulatory oversight would be conducted by the EPA’s Chicago Regional Office rather than the Pollution Control Agency in St. Paul or – perhaps – delegated to the Band.

The Band would have the ability to require liquor licenses and regulate liquor sales within the 61,000 acres.

The Band could, if it met the requirements of the Violence Against Women Act, prosecute non-members in tribal court for certain domestic violence crimes involving a tribal member.

As other tribes have done, the Band could assert business regulation, zoning regulation and broader criminal jurisdiction over non-members and their lands within Indian country.

Simultaneously, the County and the State would see their civil regulatory powers curtailed. Traffic offenses by tribal members, such as speeding and driving without insurance, anywhere within the reservation would (with a few exceptions such as DUI violations) not be subject to state law enforcement authority. The County also would lose civil regulatory authority over building permits from the Band and potentially Band members, on privately owned lands.

The foregoing is not intended to be comprehensive but is instead just some of the reasons why this dispute is important and why its outcome matters to every County resident, band member and non-member alike. To the contrary, it omits what is perhaps the biggest potential change of all: the possibility of future legislation or court decisions that could extend the powers the Band could exercise in Indian country in new and as-yet-unimaginable ways.

By: Randy V. Thompson, Esq.
5001 American Blvd. W., Suite 595
Bloomington, MN 55437
Telephone No. 952-405-7171
E-mail: rthompson@nmtlaw.com