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Thursday, July 18, 2024 | Back issues
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Ojibwe members ask appeals court to confirm Minnesota reservation still exists

The Mille Lacs Band of Ojibwe filed suit in 2017 to determine its law enforcement authority. With that question settled by state law, it's fighting against the argument that the band had no remaining reservation.

SAINT PAUL, Minn. (CN) — A Minnesota band of Ojibwe Native Americans fought to confirm the existence of their reservation at the Eighth Circuit Wednesday morning, opposed by a county government which argued that the reservation hasn’t legally existed since the Civil War era. 

The Mille Lacs band of Ojibwe, with approximately 4,300 members in northern Minnesota, filed suit in 2017 against the County of Mille Lacs, its sheriff and its county attorney. The county, they argued, had improperly asserted authority to investigate violations of law by non-band members on the band’s lands, and threatened the band's police officers with arrest and prosecution if they exercised law enforcement authority against non-band members, even on the reservation. The county did so arguing that the band’s reservation no longer exists, having been disestablished in 1864. 

“The Mille Lacs Reservation was created in 1855, and it existed for nine years until the 1864 treaty,” attorney Randy Thompson argued on behalf of Mille Lacs County. Arguments took place in a packed St. Paul courtroom Wednesday morning. 

That treaty, which led many Mille Lacs band members to move to another reservation in exchange for compensation, was followed by numerous acts of Congress which Thompson argued disestablished the reservation. After the treaty, he said, “all land in Mille Lacs was opened for settlement and sale.” 

Thompson also said that if the Mille Lacs Band wanted to reassert its reservation, the members had a last-chance opportunity to do so over 70 years ago. The Indian Claims Commission Act of 1946 created a commission to hear cases against the United States on behalf of any Native American tribes, bands or other groups, with a deadline in 1951.

The band, he said, made no such claim. 

“Everyone agreed, by 1946 there was no Mille Lacs reservation,” Thompson said. 

Arguing for the Ojibwe members, attorney Marc Slonim saw things very differently.

Acts of Congress and the state had continued paying reference to the band’s reservation throughout the 20th century, he said, and right-of-way easements on land in the reservation still pay reference to the Mille Lacs Band’s rights to the land.

Slonim agreed that arguments before the Eighth Circuit turned on that question of disestablishment — or, as U.S. Circuit Judge James Loken noted, the differences between disestablishment and diminishment.

The George H.W. Bush-appointed judge had harsh words for Thompson when discussing two Eighth Circuit cases he thought were particularly pertinent to the case, both titled United States v. Jackson. Those cases surrounded the diminishment of the boundaries of the Red Lake Reservation, also in Minnesota. 

“You end up in the same place whether it’s diminishment or disestablishment,” Thompson said when Loken asked why he hadn’t cited the Jackson cases. 

“If you had read them, you wouldn’t say that,” Loken replied. 

The court also paid note to developments both in and outside the case. Minnesota amended a state law in 2023 to affirm that the band holds law enforcement authority within its reservation’s 1855 boundaries, regardless of whether the reservation still exists. 

The county and band have also negotiated a new law enforcement agreement, restoring the band’s ability to operate on onetime or present day reservation lands and to run the services, like 911 dispatch, it relied on. 

“This case is super moot,” Slonim said of those developments. “I don’t know if that’s a legal term.”

The parties’ agreement is temporary, he noted, and these questions could be raised again after it expires, but the band wasn’t facing any immediate threat of injury anymore.

While the members would prefer that the court keep a lower court’s order affirming the band’s law enforcement authority in place, Slonim said, the issue was admittedly close and the band would be able to operate with or without the order. 

Thompson took issue with that idea. The band may have law enforcement powers, he noted, but civil regulatory authority didn’t accompany the state’s grant of those powers.

That alone, he said, warranted a ruling from the court on the status of the reservation and its accompanying law-enforcement jurisdictions, or at minimum vacatur of the lower court’s order. 

Speaking after the hearing, Sheriff Kyle Burton pointed to that issue, too. He noted that neither his staff nor the band’s had clarity on who could respond to barking or dangerous dogs and other nuisance complaints.

There were also difficulties for band police, he said, who can’t always enforce civil violations like license suspensions for non-Band drivers.

“We still work very well together,” Burton said of the band’s police department, “but some of the issues that Mr. Thompson raised are still issues.” 

Among the spectators at Wednesday's oral arguments were a number of Mille Lacs residents and Ojibwe band members.

One man, who said he was a fisherman and lived on the lake, said he was tired of difficulties with fishing on the lake. He declined to give his name, but the statement echoed arguments made in an amicus brief filed by the Mille Lacs Equal Rights Foundation, which claimed that the 1855 boundaries of the reservation would damage the overall health of the lake.

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