County of Mille Lacs v. Benjamin

• Decision Date: 06 May 2003
• Docket Number: No. 02-CV-40 JMRRLE.,02-CV-40 JMRRLE.
• Citation: 262 F.Supp.2d 990
• Parties: COUNTY OF MILLE LACS et al. v. Melanie BENJAMIN et al.
• Court: U.S. District Court — District of Minnesota

262 F.Supp.2d 990

COUNTY OF MILLE LACS et al. v. Melanie BENJAMIN et al.

No. 02-CV-40 JMRRLE.

United States District Court, D. Minnesota.

May 6, 2003.

Peter J Pustorino, Pustorino Tilton Parrington & Lindquist, Mpls, MN, Tom D Tobin, Tobin Law Office, Winner, SD for Plaintiff.

Mary Alexis Balber, John S Swimmer, Mille Lacs Band of Ojibwe, Office of Solicitor

General, Onamia, MN, Marc D Slonim, John B Arum, Ziontz Chestnut Varnell Berley, Seattle, WA, for Defendants.

ORDER

ROSENBAUM, Chief Judge.

Plaintiff County of Mille Lacs ("County"), and intervenor, First National Bank of Milaca,¹ ask the Court to declare the legal status of an Indian reservation.² The reservation was established by an 1855 treaty between the Mille Lacs Band of Chippewa Indians and the United States of America. Defendants are individual leaders of the Mille Lacs Band of Chippewa Indians. This matter is before the Court on defendants' motion for summary judgment.

I. Background

A brief history of the reservation provides a context for this dispute. In 1837, not far from Fort Snelling, Minnesota, the United States and 12 Chippewa Nation Bands negotiated a treaty under which the Chippewa Bands ceded title to certain upper midwest lands to the United States.

On February 22, 1855, the Minnesota Chippewa entered into another treaty, whereby six separate tracts of reservation land were established as a permanent home for the Minnesota Chippewa, including the Mille Lacs Band. The Mille Lacs Band encompassed some 61,000 acres around Kathio, South Harbor, and Isle Harbor townships in Minnesota (hereinafter "the 1855 reservation").

Two additional treaties, 12 Stat. 1249 (1863) and 13 Stat. 693 (1864),³ are of interest. In" 1863, and again in 1864, the Minnesota Chippewa entered into treaties ceding further.lands to the United States. Article XII of both treaties provides, "that, owing to the heretofore good conduct of the Mille Lac [sic] Indians, they shall not be compelled to remove[from their reservation to White Earth] so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites."

The treaty terms were "not, however always honored. As stated by the court of Claims, "[t]he 1863 and 1864 treaties notwithstanding, between 1871 and 1889, 55,976.42 acres of the Mille Lac land were filed against under the public land laws i.e., homestead and preemption entries were made on over ninety percent of it." Minn. Chippewa Tribe v. United States, 11 Cl.Ct. 221, 225 (1986). On July 4, 1884, to forestall this loss, Congress stayed any patenting or disposal of Mille Lacs land pending further legislation. See Ch. 180, 23 Stat. 76, 98 (1884). In 1889, not long thereafter, Congress passed the Nelson Act, which applied the policies of the General Allotment Act to the Chippewa Bands. The Nelson Act contained several provisions significantly different from the General Allotment Act. While the General Allotment Act provided individual members with certain proceeds from the sale of tribal land, the Nelson Act directed any profits derived from land sales into a collective permanent trust fund for the Minnesota Chippewa Band.

On February 15, 1909, Congress authorized the Court of Claims to hear and determine a suit or suits to be brought by and on behalf of the Mille Lac [sic] Band of Chippewas Indians in the State of Minnesota against the United state [sic] on account of losses sustained by them or the Chippewas of Monnesota by reason of the opening of the Mille Lac [sic] Reservation ... to settlement under the general land laws of the United States.

35 Stat. 619, c. 126 (1909). The Mille Lacs Band filed suit pursuant to the 1909 Act to recover losses resulting from the 1889 Act. This suit was ultimately heard and resolved by the United States Supreme Court, which ordered an assessment of damages in favor of the Band. See United States v. Mille Lac Band of Chippewa Indians, 229 U.S. 498, 33 S.Ct. 811, 57 L.Ed. 1299 (1913). Shortly after this decision, the United States purchased land for the Mille Lacs Band and made allotments to it and its members. The 4,000 acres purchased at that time are held in trust, and are not disputed here.

In 1990, the Mille Lacs Band filed a lawsuit which casts its shadow over the present matter. By joining with several other Bands, they sought a declaratory judgment to establish entitlement to continued implied hunting and fishing rights originally guaranteed in the 1837 Treaty. Nine years later, the United States Supreme Court ruled in their favor, and in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999), found that the 1837 Treaty protected the their hunting and fishing rights. Notwithstanding the finality of the Supreme Court's decision, there still remain a number of unresolved issues between the Mille Lacs Band and neighboring landowners.

It is also appropriate to recognize that, over the past few years, the Mille Lacs Band has opened two highly successful casinos, and has used revenues therefrom to acquire additional land. During this time, the Mille Lacs Band leaders have referred to a possible reassertion of their claim to land within the 1855 reservation boundaries. This claim has exacerbated relations between the Mille Lacs Band and its nearby neighbors, who brought this case. Plaintiffs ask the Court to declare that the Mille Lacs Band has no claim to any land beyond that which it occupies today.

II. Discussion

Defendants premise their motion to dismiss on four jurisdictional arguments. First, they claim plaintiffs lack standing to assert their claims. Second, they deny plaintiffs' claims are ripe for adjudication. Third, they claim sovereign immunity bars the action. Fourth, they claim plaintiffs' failure to join the United States in this action is a failure to join an indispensable party.⁴

Before addressing the merits of their motion, the Court must consider the posture of the motion. The First National Bank of Milaca argues that dismissal, not summary judgment, is the proper remedy for a non-justiciable suit. PI. Opp'n Mem. at 8 (citing Fed.R.Civ.P. 12(b)). While the Court agrees that if plaintiffs lack standing dismissal is the proper remedy, it finds defendants have properly raised justiciability arguments through their summary judgment motion. Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Defendants are foreclosed from filing a motion to dismiss, having already interposed an answer. Fed.R.Civ.P. 12(b) ("A motion making any [12(b) ] defenses shall be made before pleading if a further pleading is permitted."); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1361 (Supp. 2002) ("[M]otions raising [a lack of subject matter defense] may be considered by the court even when interposed after the responsive pleading has been filed, although technically [it is] no longer [a] Rule 12(b) motion[ ]."). Therefore, because a motion to dismiss is procedurally barred, the Court employs the traditional summary judgment analysis to evaluate standing.

Under this rubric, plaintiffs must establish a genuine issue of material fact as to justiciability in order to survive summary judgment. Dep't of Commerce, 525 U.S. at 329, 119 S.Ct. 765 ("To prevail on a ... motion for summary judgment—as opposed to a motion to dismiss—[ ] mere allegations of injury are insufficient. Rather, a plaintiff must establish that there exists no genuine issue of material fact as to justiciability or the merits."); Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ("Since [the elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.") (citations omitted).

A. Standing

The question of standing "involves constitutional Kmitations of federal court jurisdiction." Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). "To satisfy the case or controversy requirement of Article III, which is the irreducible constitutional minimum of standing, a plaintiff must he has suffered speaking, demonstrate that he has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Id. In addition to constitutional requirement's, standing also involves prudential limits on the exercise of federal jurisdiction."Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th Cir.2002) (citing Bennett, 520 U.S. at 162, 117 S.Ct. 1154).

Constitutional standing "assures the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). "Absent specific facts establishing distinct and palpable injuries fairly traceable to [the defendants' conduct]" the injury in fact requirement is not satisfied. Ark. ACORN Fair Hous., Inc. v. Greystone Dev., Inc., 160 F.3d 433, 435 (8th Cir.1998). Therefore, absent an actual controversy, the Court lacks jurisdiction. See Caldwell v. Gurley Ref. Co., 755 F.2d 645, 648 (8th Cir.1985).

1. Law of the Case

First National Bank of Milaca claims the Court's inquiry into its standing is foreclosed by Magistrate Judge Noel's Order allowing it to intervene. The Bank asserts the Magistrate's ruling...