Mille Lacs Band of Ojibwe v. Cnty. of Mille Lacs

• Decision Date: 21 December 2020
• Docket Number: Case No. 17-cv-5155 (SRN/LIB)
• Citation: 508 F.Supp.3d 486
• Parties: MILLE LACS BAND OF OJIBWE, a federally recognized Indian Tribe; Sara Rice, in her official capacity as the Mille Lacs Band Chief of Police; and Derrick Naumann, in his official capacity as Sergeant of the Mille Lacs Police Department, Plaintiffs, v. COUNTY OF MILLE LACS, MINNESOTA; Joseph Walsh, individually and in his official capacity as County Attorney for Mille Lacs County ; and Don Lorge, individually and in his official capacity as Sheriff of Mille Lacs County, Defendants.
• Court: U.S. District Court — District of Minnesota

508 F.Supp.3d 486

MILLE LACS BAND OF OJIBWE, a federally recognized Indian Tribe; Sara Rice, in her official capacity as the Mille Lacs Band Chief of Police; and Derrick Naumann, in his official capacity as Sergeant of the Mille Lacs Police Department, Plaintiffs,

v.COUNTY OF MILLE LACS, MINNESOTA; Joseph Walsh, individually and in his official capacity as County Attorney for Mille Lacs County ; and Don Lorge, individually and in his official capacity as Sheriff of Mille Lacs County, Defendants.

Case No. 17-cv-5155 (SRN/LIB)

United States District Court, D. Minnesota.

Signed December 21, 2020

Charles N. Nauen, Arielle Wagner, and David J. Zoll, Lockridge Grindal Nauen PLLP, 100 Washington Ave. S., Ste. 2200, Minneapolis, MN 55401; Beth Ann Baldwin, Marc D. Slonim, and Wyatt Golding, Ziontz Chestnut, 2101 Fourth Ave., Ste. 1230, Seattle, WA 98121, for Plaintiffs.

Courtney E. Carter and Randy V. Thompson, Nolan, Thompson, Leighton & Tataryn, PLC, 5001 American Blvd. W., Ste. 595, Bloomington, MN 55437, for Defendant County of Mille Lacs, Minnesota.

Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 S. 8th St., Ste. 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh.

Stacy L. Bettison, Brett D. Kelley, Douglas A. Kelley, Steven E. Wolter, Kelley, Wolter & Scott, P.A., 431 S. 7 St., Ste. 2530, Minneapolis, MN 55415, for Defendant Don Lorge.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, United States District Judge

This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment on Standing, Ripeness, and Mootness [Doc. No. 146], Defendants Joseph Walsh and Donald Lorge's Motion for Summary Judgment [Doc. No. 162], and Defendants County of Mille Lacs, Walsh, and Lorge's Motion to Strike and for Sanctions [Doc. No. 182]. For the reasons set forth below, Plaintiffs’ Motion for Summary Judgment on Standing, Ripeness, and Mootness is GRANTED ; Defendants Walsh and Lorge's Motion for Summary Judgment is DENIED ; and Defendants County of Mille Lacs, Walsh, and Lorge's Motion to Strike and for Sanctions is DENIED .

I. BACKGROUND

This case involves important and complex issues regarding the boundaries of the Mille Lacs Indian Reservation and, consequently, the extent of the Mille Lacs Band's sovereign law enforcement authority within those boundaries. The present motions before the Court, however, do not seek to resolve these issues at this time. Rather, the present motions address: (1) this Court's subject matter jurisdiction; (2) threshold justiciability issues, including standing, ripeness, and mootness; and (3) certain defenses of immunity. Accordingly, the Court will limit its discussion of the facts to only those necessary to explain its rulings.

A. The Parties and the Mille Lacs Indian Reservation

The Plaintiffs are the Mille Lacs Band of Ojibwe (the "Band"), a federally recognized Indian tribe; Sara Rice, the Chief of Police of the Band; and Derrick Naumann, a Sergeant in the Band's Police Department (collectively, "Plaintiffs"). (Compl. [Doc. No. 1]; see 85 Fed. Reg. 5462, 5464 (Jan. 30, 2020) ; Baldwin Decl. [Doc. No. 150] Ex. A at 7, Ex. B at 6, Ex. C at 6.) The Defendants are the County of Mille Lacs (the "County"); Joseph Walsh, the Mille Lacs County Attorney; and Don Lorge, the Mille Lacs County Sheriff (collectively, "Defendants"). (See Compl. [Doc. No. 1].) In March 2019, Magistrate Judge Brisbois substituted Lorge for Brent Lindgren, a former County Sheriff, after Lindgren left his position and Lorge became the new Sheriff. (Order on Stipulation [Doc. No. 63].)

Article 2 of the 1855 Treaty between the Minnesota Chippewa Tribe and the United States established the Mille Lacs Indian Reservation, which comprises about 61,000 acres of land. (10 Stat. 1165 (Feb. 22, 1855); Quist Decl. [Doc. No. 160] ¶ 3.) In Plaintiffs’ view, the Reservation established by the 1855 Treaty has never been diminished or disestablished. (See generally Compl. [Doc. No. 1].) Within the Reservation, there are approximately 3,600 acres that the United States holds in trust for the benefit of the Band, the Minnesota Chippewa Tribe, or individual Band members. (Quist Decl. [Doc. No. 160] ¶ 4.) The Band owns in fee simple about 6,000 acres of the Reservation, and individual Band members own in fee simple about 100 acres of the Reservation. (Id. ¶¶ 5-6.) In Defendants’ view, the Reservation established by the 1855 Treaty was diminished or disestablished by way of subsequent federal treaties, statutes, and agreements. (See generally County Answer [Doc. No. 17]; Walsh Answer [Doc. No. 18]; Lindgren Answer [Doc. No. 19].) Although the Court does not wade into this core issue today, it is important to recognize that this case rests on this boundary dispute.

B. The Opinion and Protocol

On June 21, 2016, the County terminated the 2008 law enforcement agreement ("2008 Agreement") it had with the Band and County Sheriff. (Baldwin Decl. [Doc. No. 150] Ex. H.) The 2008 Agreement allowed Band officers to exercise concurrent jurisdiction with the Mille Lacs County Sheriff's Department to enforce Minnesota state law, as provided in Minn. Stat. § 626.90. ( Id. )

On July 18, 2016, County Attorney Walsh issued the "Mille Lacs County Attorney's Office Opinion on the Mille Lacs Band's Law Enforcement Authority." (Baldwin Decl. [Doc. No. 150] Ex. I (hereafter, "Opinion").) In general, the Opinion outlines Walsh's views regarding the scope of the Band's law enforcement authority after the termination of the 2008 Agreement. ( Id. ) The Opinion concludes, inter alia , that the Band's "[i]nherent tribal jurisdiction is limited to ‘Indian Country,’ " which "is limited to tribal trust lands." (Id. at 14.) Moreover, the Opinion concludes that investigations conducted by Band officers outside Pine County are unlikely to be admissible in state court. (Id. at 8.) The Opinion explains that:

As all investigations of state law violations must be completed by a peace officer within his or her state law jurisdiction, either the Mille Lacs County Sheriff's Office or the police department of a municipality must take possession of all evidence gathered regarding that investigation to ensure its admissibility in state court.

(Id. at 9.)

The "Northern Mille Lacs County Protocol" further clarifies Walsh's position on Band officers’ sovereign law enforcement authority and "is intended to guide law enforcement officers regarding the lawful authority of law enforcement officers" within the Reservation. (Baldwin Decl. [Doc. No. 150] Ex. J (hereafter, "Protocol").) According to the Protocol, the Band's "inherent tribal criminal authority doesn't extend (1) outside of trust lands or (2) to non-members of the Mille Lacs Band." (Id. (emphasis omitted).) The Protocol provides that Band officers "are peace officers of the State of Minnesota with state law enforcement jurisdiction within Pine County only." ( Id. (emphasis omitted).) Under the Protocol, in Mille Lacs County, Band officers have certain arrest powers, but "must turn over arrested persons without delay to a Mille Lacs County peace officer so an investigation admissible in state court may be conducted." ( Id. (emphasis omitted).)

Further, the Protocol provides that Band officers "[m]ay [n]ot [l]awfully ... [c]onduct investigations regarding violations of state law including statements, investigative stops, traffic stops, and gathering evidence." ( Id. (emphasis omitted).) Moreover, the Protocol provides that Band officers "[m]ay [n]ot [l]awfully ... [i]mpersonate a state peace officer, obstruct justice, or engage in the unauthorized practice of a peace officer, primarily by interfering with investigations within Mille Lacs County." ( Id. ) In a footnote, the Protocol clarifies that Band officers "may conduct investigations where they have tribal jurisdiction (e.g., civil/regulatory citations to Band members and investigations related to inherent tribal criminal authority)." ( Id. ) And the Protocol warns that "State Peace Officers [m]ay [n]ot [l]awfully ... [a]uthorize or knowingly allow the unauthorized practice of a peace officer." ( Id. )

C. Alleged Interference By Defendants with the Band's Sovereign Law Enforcement Authority In Response to the Opinion and Protocol

The record evidence makes clear that Walsh fully expected Band officers to comply with the Opinion and Protocol. The record is also replete with evidence that, pursuant to the Opinion and Protocol, County law enforcement officers repeatedly interfered with law enforcement measures undertaken by Band officers. In fact, Walsh testified that he never "suggested [compliance with the Protocol] was voluntary." (Baldwin Decl. [Doc. No. 150] Ex. K, Walsh Dep. at 305.) In an email to the Band's former Chief of Police Jared Rosati on July 25, 2016, Walsh stated he "trust[s] that [the Protocol] has been provided to all of your officers and that they have been directed to follow it." ( Id. , Ex. M.) In an August 23, 2016, email to Rosati, after quoting the Protocol, Walsh stated that a Band officer did not have "inherent tribal criminal authority" to investigate a non-Native suspect on the Reservation. ( Id. , Ex. P at 5.) In an August 25, 2016, letter to Rosati, Walsh wrote that Band officers’ conduct in violation of the Opinion and Protocol "could ... constitute obstruction of justice and the unauthorized practice of a law enforcement officer." ( Id. , Ex. N at 2; see id. , Ex. K, Walsh Dep. at 297-98 (stating that Band officers’ violations of the Opinion and Protocol could constitute violations of state criminal law).)

There is no evidence in the record that compliance with the Opinion and Protocol was voluntary. In a September 20, 2016, letter to Band Police Officer Kintop, Walsh wrote that he "expect[s] all tribal police officers to follow the [Opinion and Protocol] for as long as [they are] in place." ( Id. , Ex. O at 1.) He told Officer Kintop that "[i]f you wish for controlled substance offenders to be prosecuted in Minnesota District...