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The Mille Lacs Band’s recent legal victory

Contributor

  • Caleb Dogeagle
    Caleb Dogeagle

The Mille Lacs Reservation in northern Mni Sota Makoce (Minnesota), home to the Mille Lacs Band of Ojibwe, shares geography with Mille Lacs County. For many years, the County has attempted to limit the Band’s power by disputing the borders of its Reservation. The Treaty of 1855 guarantees the Mille Lacs Band a 61,000-acre reservation, yet the County insists the Reservation is only about 4,000 acres.

In addition to the boundary dispute, the County has also engaged in repeated efforts to inhibit the Mille Lacs Band’s policing authority. Over the last decade, the County’s actions have negatively impacted both the Mille Lacs Band’s Tribal Police Department and the health and safety of individual citizens. As just one example of these impacts, crime on the Reservation significantly increased after the County implemented a new set of policing rules (called the Northern Mille Lacs County Protocol–more on that later) in 2016. 

In an attempt to put an end to what they believed was unlawful interference with their Tribal policing authority, the Mille Lacs Band of Ojibwe filed a lawsuit in 2017 against Mille Lacs County and associated officials. On January 10, 2023, Senior U.S. District Judge Susan Richard Nelson issued a ruling on the lawsuit in favor of the Mille Lacs Band. The long-awaited decision is a victory for the Mille Lacs Band and Tribal sovereignty more broadly. 

We sat down with our board chair and Mille Lacs Band Solicitor General Caleb Dogeagle to get a better understanding of the circumstances that led to the Band filing the lawsuit, the implications of the decision, and what we can all do to help strengthen Native nations’ ability to make their own public safety decisions in Mni Sota Makoce. 

Complicated Fundamentals

To understand the lawsuit and its impacts, context is important. But even the context can be a little complicated. Tribal policing unfortunately involves navigating a tangle of state, Tribal, and federal laws, policies, and court cases. All of the related nuances can be difficult for even experts to understand. “Jurisdiction in Indian Country is confusing. I have a flow chart from law school back in 2018 that’s already outdated now, and it was pretty elaborate,” says Dogeagle.

We recommend reading our article, “It’s Time to End Public Law 280,” to get a handle on some of the fundamentals underlying the Mille Lacs Band’s lawsuit and Tribal policing in Mni Sota Makoce in general. As a quick recap, we’ll briefly explain two concepts related to the case: the Mille Lacs Band’s inherent law enforcement authority and state statutes that empower Native nations to exercise state law enforcement authority. 

Native nations sharing geography with Mni Sota Makoce, with the exception of Red Lake Nation and the Bois Forte Band of Lake Superior Chippewa, are subject to Public Law 280. Enacted by Congress in 1953, the law grants non-Tribal law enforcement entities greater control over Native people and lands. Prior to the law, Native nations like the Mille Lacs Band of Ojibwe shared criminal jurisdiction with the federal government. State governments rarely intervened in crimes taking place on Native lands; state and county police did not make regular appearances on reservations. States essentially only dealt with cases in which both parties were non-Native. Native nations handled crimes committed by Native people, and the federal government handled major crimes involving Native and non-Native people. 

Once passed, Public Law 280 said that state criminal laws now applied to reservations, and states gained jurisdiction over crimes committed by or against Native people in Indian Country. This meant they acquired the ability to handle minor crimes (something previously exclusive to Native nations) and took over responsibility for major crimes from the federal government. Under Public Law 280, states and Native nations have concurrent jurisdiction. This means that Native nations’ previous jurisdiction is not altered, but they must now share jurisdiction with the state.

Under several State of Minnesota statutes, Native nations have the ability to appoint their own peace officers who can exercise state law enforcement jurisdiction within their reservations.  Most (but not all) of these statutes require Native nations to first enter into a joint powers agreement (JPA) with surrounding counties.

Additionally, to mitigate some of the negative impacts of Public Law 280, the federal government passed the Tribal Law and Order Act (TLOA) in 2010. The law allows Native nations in Public Law 280 states to apply to the Department of Justice to resume concurrent federal jurisdiction within their nations. This federal jurisdiction does not displace Native or state jurisdiction; it restores the federal jurisdiction that nations lost under Public Law 280. Under another federal law, Native nations can also apply for Special Law Enforcement Commissions (SLECs) through the Bureau of Indian Affairs. SLECs give Tribal officers the ability to enforce applicable federal law within the boundaries of a reservation.

Origins of the Case

With this context in mind, let’s take a look at what led to the Mille Lacs Band’s lawsuit. 

In 2008, the Mille Lacs Band and Mille Lacs County formalized a joint powers agreement (JPA). Under the specific state statue applying to the Mille Lacs Band and this JPA, the Band appointed its own peace officers. These officers would work alongside the County under concurrent jurisdiction, as described above. In 2013, the Mille Lacs Band submitted their application to the Department of Justice seeking to resume concurrent federal jurisdiction under the Tribal Law and Order Act.

In response to the Band’s application, Mille Lacs County submitted comments opposing the Band’s accounting of its Reservation boundaries. The County claimed that the Reservation had been previously disestablished–meaning the original Treaty boundaries no longer held. According to the County, the present-day Reservation was limited to just the 4,000 acres held in trust for the Band. 

The situation began to intensify. The Department of the Interior (DOI) responded to the County’s assertions by issuing an opinion, referred to as the “M-Opinion,” in 2015. The DOI did not find any evidence of the Reservation being disestablished, siding with the Mille Lacs Band’s accounting of its boundaries. The County was not happy with these findings and pulled out of their 2008 JPA with the Mille Lacs Band in 2016. As justification, they claimed the Mille Lacs Band was using the criminal justice system as a means to “address the disputed boundary.” 

The Mille Lacs County Attorney, Joe Walsh, then issued a new document called the Northern Mille Lacs County Protocol, outlining what he believed to be the extent of the Mille Lacs Band’s law enforcement authority. Walsh claimed that because the County pulled out of the 2008 JPA, the Band now lacked the ability to provide law enforcement services within the boundaries of the County under state law, with very limited exceptions. Walsh’s Northern Protocol also limited the Band’s authority to exercise its inherent law enforcement authority to just their 4,000 acres of trust land. This authority applied only in situations involving Mille Lacs Band members or members of other Native nations. 

When Band officers received their SLECs in late 2016, Walsh also asserted that Band officers could not use their federal SLEC credentials beyond trust lands and prevented officers from investigating violations of state law on trust lands. In the eyes of the County Attorney, outside of their trust lands, Band law enforcement officers were in most respects equivalent in status to private citizens. 

Further, the County Attorney stated that Band Officers who attempted to use police authority beyond what was spelled out in the Northern Protocol could face civil and criminal liability.  Caleb explains, “In not so many words, the County Attorney stated that Mille Lacs Tribal Police Officers weren’t real police officers and didn’t have authority of most police officers. He said that Tribal police officers could be arrested and cited for impersonating officers if they were doing their jobs and protecting their communities.”

The new Protocol created a dire situation on the Mille Lacs Reservation. Word quickly spread about Band officers’ newly-limited policing abilities. Drug dealers began targeting the Reservation: they knew their chances of being caught were now incredibly low. Tadd Johnson, Senior Advisor on Government Affairs for the Mille Lacs Band and former NGC board member, estimates that about 100 people on the Reservation died as a result of law enforcement’s inability to respond between 2016 and 2018. Minnesota Governor Mark Dayton stated that there was a public safety emergency on the Reservation, and a State corrections officer also noted the steep increase in criminal activity. 

The Mille Lacs Band had no choice but to take the County to court in order to stop the ongoing tragedy. In 2017, they filed a lawsuit against Mille Lacs County, the County Attorney, and County Sheriff.

A victory for the Mille Lacs Band

The Mille Lacs Band knew their Reservation still existed; they also knew their law enforcement authority applied to the entire Reservation. Mille Lacs Band leaders didn’t feel confident the County would ever recognize these obvious facts without a court ruling affirming both points. 

Caleb Dogeagle contends that one of the County’s main motivations for disputing the Mille Lacs Band’s TLOA application and pulling the 2008 JPA was a desire to litigate the Reservation boundary issue: “They don’t say it in the media now, but [the County] wanted to litigate the reservation boundary. And they’ve wanted to for quite some time. Probably since Mille Lacs won their Treaty hunting rights–their rights to hunt and gather in the ceded territories–in the Supreme Court.” The County sued the Band in 2002 seeking a ruling on the Reservation boundary; that case was thrown out of court because the County could not show that the existence of the Reservation had harmed it in any way.

After filing its lawsuit, the Mille Lacs Band managed to negotiate a new JPA with Mille Lacs County. However, the County insisted that the new agreement would automatically terminate 90 days after the end of litigation. The new JPA failed to solve many of the problems created by the Northern Protocol. It did, however, state that the Band held concurrent state law jurisdiction with the County over all persons within their 4,000 acres of trust land and over all Band members within their 61,000 acre reservation. 

Senior United States District Judge Susan Richard Nelson issued several major rulings in the case. In December 2020, she ruled that the restrictions the County had imposed on the Band’s law enforcement harmed the Band; the Band could pursue its lawsuit against the County. In March 2022, Judge Nelson issued a 98-page opinion on the Reservation boundary issue. Her ruling confirmed what the Mille Lacs Band already knew: the Reservation indeed exists and has never been disestablished or diminished. In January 2023, Judge Nelson ruled that the Band’s inherent law enforcement authority applies to all 61,000 acres of the Reservation. It includes the authority to investigate violations of state law, subject to limitations established by the courts. In her final opinion, she reiterated that Mille Lacs County specifically harmed the Mille Lacs Band’s sovereignty through its restrictions.

Caleb explains the outcome of the case in this way: “The County came up with their own interpretation of what the Mille Lacs Band could and couldn’t do when it came to policing. The County unlawfully interfered with the Band’s law enforcement authority. The authority already existed, and the County interfered with it. And you can’t do that.” 

What’s next

While the most recent ruling is a victory for the Mille Lacs Band, the dispute doesn’t end here. The County is officially appealing the decision, meaning the case will move to the United States Court of Appeals for the Eighth Circuit. The Court will likely hear oral arguments in fall 2023, with a new ruling to be released in spring or summer 2024. 

There are positive developments around the requirement that some Native nations hold a joint powers agreement (JPA) with neighboring counties. Recently, the State of Minnesota removed the JPA requirement for the Prairie Island Indian Community. Now, rather than being required to hold a JPA to hire and use its own officers, Prairie Island may choose to hold one if entering into an agreement with a county feels like a good fit.

In addition to the State easing this requirement for Prairie Island, several state lawmakers (including Representative Jamie Becker-Finn and Senator Mary Kunesh) are working on a bill to make the requirement optional for all Native nations sharing geography with Mni Sota Makoce. Nations would have the option to enter into JPAs, similar to Prairie Island. 

Returning to the situation at Mille Lacs, Caleb notes that the current JPA will remain in place until 90 days after litigation ends. If the County and Band agree, it could remain thereafter as well. However, if the state legislation passes, the County would no longer be able to interfere with the exercise of the Band’s law enforcement authority through the JPA process.

The Mille Lacs case is notable because it’s a rare example of a bad actor (Mille Lacs County) using the JPA requirement to cause harm. While Caleb hasn’t heard similar stories from other nations, he feels the situation at Mille Lacs is enough to justify the removal of the JPA requirement. “Unfortunately, there were some really bad impacts on the ground,” Caleb notes. “But ultimately, I think that the state will remove that requirement for these JPAs, and that will remove the temptation for counties to use that as a tool against Tribes.”

Want to take action to ensure Native nations sharing geography with Mni Sota Makoce have more agency over their policing and agreements with surrounding counties? We encourage you to check the status of the JPA bill. (Or, check our Instagram for updates). Once it’s submitted, contact your lawmakers to let them know you support it. 

Our conversation with Caleb Dogeagle was edited for clarity and length.

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