Mille Lacs Band of Indians v. State of Minn.

Decision Date13 May 1994
Docket NumberCiv. No. 4-90-605.
Citation853 F. Supp. 1118
PartiesMILLE LACS BAND OF CHIPPEWA INDIANS, Arthur Gahbow, Walter Sutton, Carleen Benjamin, and Joseph Dunkley, Plaintiffs, and United States of America, Plaintiff-Intervenor, v. STATE OF MINNESOTA, Minnesota Department of Natural Resources, and Rod Sando, Commissioner of Natural Resources, Defendants, and John W. Thompson, Jenny Thompson, Joseph N. Karpen, LeRoy Burling, Glenn E. Thompson, and Gary M. Kiedrowski, and the Counties of Aitkin, Benton, Crow Wing, Isanti, Kanabec, Mille Lacs, Morrison, Pine, and Sherburne, Defendants-Intervenors.
CourtU.S. District Court — District of Minnesota

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James M. Genia, Mille Lacs Band of Ojibwe, Onamia, MN, Marc D. Slonim, John B. Arum, Ziontz Chestnut Varnell Berley & Slonim, Seattle, WA, for plaintiffs Mille Lacs Band of Chippewa Indians, Arthur Gahbow, Walter Sutton, Carleen Benjamin, Joseph Dunkley.

James M. Johnson, Johnson Law Office, Olympia, WA, Jeffry Robert Chaffee, Jennifer Ann Fahey, Joint Powers Bd., Mora, MN, for defendants-interveners County of Aitkin, County of Benton, County of Chisago, County of Crow Wing, County of Isanti, County of Kanabec, County of Mille Lacs, County of Morrison, County of Pine.

Jeffry Robert Chaffee, Jennifer Ann Fahey, Joint Powers Bd., Mora, MN, for intervenor Sherburne County, substituted for Chisago County.

William Arthur Szotkowski, Stephen Bruce Masten, Jerilyn K. Aune, Sp. Asst. Atty. Gen., Michelle E. Beeman, Office of MN Atty. Gen., St. Paul, MN, for defendants State of MN, MN Dept. of Natural Resources, Joseph Alexander, Com'r of Natural Resources.

Lawrence A.G. Moloney, Doherty Rumble & Butler, Minneapolis, MN, Gregg J. Tucek, for intervenor-defendant Save Lake Mille Lacs Ass'n.

Randy V. Thompson, Stephen G. Froehle, Gary E. Persian, Persian MacGregor & Thompson, Minneapolis, MN, for intervenors-defendants John W. Thompson, Jenny Thompson, Joseph N. Karpen, LeRoy Burling, Glenn E. Thompson, Gary M. Kiedrowski.

George Cardinal, Me-Da-We Grand Medicine Soc., pro se.

Zenas Baer, Wefald & Baer, Hawley, MN, for interveners Dale Hanks, Chief Hole in the Day VII, individually, and on behalf of MS Band of Chippewa Indians.

Robert Michael Small, U.S. Atty. Office, Minneapolis, MN, William A. White, Sheila A. Hackett, U.S. Dept. of Justice, Indian Resources Section, Environmental and Natural Resources Div., Washington, DC, for intervenor-plaintiff U.S.

MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, Chief Judge.

This action arises out of language in a 1837 Treaty between the United States and the Chippewa Indians which "guaranteed" the Chippewa "the privilege of hunting, fishing and gathering the wild rice upon the lands, the rivers and the lakes included in the territory ceded ... during the pleasure of the President." Article V, 1837 Treaty, 7 Stat. 536 (1837 Treaty). Plaintiffs the Mille Lacs Band of Chippewa Indians, Arthur Gahbow, Walter Sutton, Carleen Benjamin, and Joseph Dunkley (collectively the Band) brought this action against the State of Minnesota, the Minnesota Department of Natural Resources, and Rod Sando, Commissioner of Natural Resources (collectively the State) alleging that the State has adopted and enforced natural resource laws and regulations that violate the Band's hunting, fishing, and gathering rights under the 1837 Treaty. The Band seeks a declaratory judgment that it retained rights under the treaty, definitions of the nature and scope of those rights, and definition of permissible state regulation of those rights. It also seeks an injunction barring state interference with its rights under the 1837 Treaty. The Band does not seek any money damages.

Jurisdiction is invoked under three statutes. Plaintiffs allege that the court has jurisdiction under 1) 28 U.S.C. § 1331 because this action arises under the Constitution, laws, and treaties of the United States; 2) 28 U.S.C. § 1343(a)(3) and (4) because plaintiffs seek relief under 42 U.S.C. § 1983 on the theory that the State's enforcement of its conservation laws has prevented or interfered with the exercise of rights under the 1837 Treaty in violation of that treaty, the Due Process Clause of the Fourteenth Amendment, and the Supremacy Clause of the Constitution, and 3) 18 U.S.C. § 1362 because it is an action brought by an Indian band with a governing body duly recognized by the Secretary of the Interior and the matter in controversy arises under the Constitution, laws, and treaties of the United States.

The case has been divided into two phases. The first phase will determine whether the Band retains any rights under the Treaty and whether those rights extend to land owned privately. If it were determined that the Band retains rights under the Treaty, then the validity of state laws regulating those rights would have to be examined.

On April 5, 1993, nine counties1 (the Counties) and six landowners2 (the Landowners) were granted intervention as defendant-intervenors. On December 16, 1993, the United States of America was granted intervention as a plaintiff-intervenor.

Now before the court are three motions by the Band for partial summary judgment on defenses asserted by the defendants and defendant-intervenors. The State has filed a cross-motion for summary judgment seeking judgment in its favor based upon several defenses including Eleventh Amendment immunity, failure to join indispensable parties, and statute of limitations. The State has also filed a motion for summary judgment on Phase I merits, based upon the Executive Order of 1850, the Treaty with the Chippewa of 1855, and the doctrine of collateral estoppel. The United States has also filed a motion to dismiss the Landowners' counterclaims.

I.

On a motion for summary judgment, all evidence and inferences must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). The moving party must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). A fact is material if it affects the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

II.

The Band moves for summary judgment on miscellaneous defenses asserted by the State, Landowners, and Counties including 1) delay based defenses; 2) governmental and personal immunity defenses; and 3) the defense that the Band and the State and its officers acting within their official capacities are not persons within the meaning of 42 U.S.C. § 1983. The State filed a cross motion seeking summary judgment on four grounds: 1) that the action is barred by the statute of limitations and laches, 2) that the Band's claims must be dismissed for failure to join indispensable parties under Fed. R.Civ.P. 19, 3) that the Band's claims are barred by the Eleventh Amendment and 4) that the court should abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

A.

The State, Counties, and Landowners assert that the Band's claims are barred by "laches, waiver, estoppel and adverse possession." State's Answer ¶ 14; Counties' Answer ¶ 10. The Landowners also raise affirmative defenses of "release" and "the applicable statute of limitations" as additional defenses. Landowners' Joint Answer, 5th Affirmative Defenses.

Plaintiffs argue that these defenses may not be raised against the United States. Delay based defenses may not be asserted against the United States. See Board of Comm'rs v. United States, 308 U.S. 343, 351, 60 S.Ct. 285, 288, 84 L.Ed. 313 (1939) ("state notions of laches and state statutes of limitations have no applicability to suits by the Government, whether on behalf of Indians or otherwise"). None of the delay based defenses raised by the State, Landowners, and Counties may therefore be asserted against the United States.

Plaintiffs argue that the issue of whether the delay based defenses apply to the Band is moot because they seek the same relief. The State responds that the issues are not moot because the Eleventh Amendment protects it from suits by the Band regardless of whether it is protected from suits by the United States.

In Arizona v. California, 460 U.S. 605, 613-14, 103 S.Ct. 1382, 1388-89, 75 L.Ed.2d 318 (1983), after the United States brought suit against several states for water rights on behalf of Indian tribes, the tribes were permitted to intervene. The Eleventh Amendment does not bar the United States from suing a state, id. at 613-14, 103 S.Ct. at 1388-89, and the Court reasoned that:

the Tribes do not seek to bring new claims or issues against the States, but only ask leave to participate in an adjudication of their vital water rights that was commenced by the United States. Therefore, our judicial power over the controversy is not enlarged by granting leave to intervene, and the States' sovereign immunity protected by the Eleventh Amendment is not compromised.

Id. at 614, 103 S.Ct. at 1389. See also Maryland v. Louisiana, 451 U.S. 725, 745, n. 21, 101 S.Ct. 2114, 2128, n. 21, 68 L.Ed.2d 576 (1981) (agreeing with the Special Master's recommendation that the United States and several pipeline companies be allowed to intervene in a suit against defendant Louisiana). The United States and the Band seek identical relief in this action. The Band's presence does not enlarge the claims that could be and are asserted by the United States. Under Arizona v. California the Band would be allowed to intervene if the action had been instituted by the United States, regardless of any delay based defenses. The Band should not be barred from asserting its interests in this action by any delay based...

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