Mille Lacs Band Ojibwe v. Cnty. of Mille Lacs
| Decision Date | 13 April 2020 |
| Docket Number | File No. 17-cv-5155 (SRN/LIB) |
| Parties | Mille Lacs Band of Ojibwe, et al., Plaintiffs, v. County of Mille Lacs, Minnesota, et al., Defendants. |
| Court | U.S. District Court — District of Minnesota |
This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Defendants' Motion to Compel Against Plaintiffs and to Enforce Third-Party Subpoena, [Docket No. 86], and Plaintiffs' Motion for Protective Order and to Quash Defendant's Third-Party Subpoena, [Docket No. 96].
For the reasons discussed below, Defendants' Motion to Compel Against Plaintiffs and to Enforce Third-Party Subpoena, [Docket No. 86], is DENIED, and Plaintiffs' Motion for Protective Order and to Quash Defendant's Third-Party Subpoena, [Docket No. 96], is GRANTED.
The Mille Lacs Band of Ojibwe (the "Band") is a federally recognized Indian tribe. (Compl. [Docket No. 1] ¶ 1). The Mille Lacs Indian Reservation (the "Reservation") was established in 1855 by Article 2 of the Treaty with the Chippewa. (Id. ¶ 5.A (citing 10 Stat. 1165 (Feb. 22, 1855)). The Band contends that "[t]he Reservation comprises of approximately 61,000 acres of land" (the "1855 Reservation"). (Id.). Of that land, however, "[t]he United States owns approximately 3,572 acres of land within the Reservation in trust for the Band, the Chippewa Tribe and Band members" (the "Trust Lands"). (Id.). "In addition, the Band owns approximately 6,038 acres within the Reservation in fee simple and, as of February 2015, Band members owned approximately 84 acres within the Reservation in fee simple." (Id.).
The Band contends that "[t]he boundaries of the Reservation as established in 1855 have not been disestablished or diminished," and all lands within the 1855 Reservation "are Indian country within the meaning of 18 U.S.C. § 1151." (Id. ¶ 1.B, 5.C). Conversely, Defendants contend that the 1855 Reservation "has been disestablished," and that "the extent of Indian country in Mille Lacs County, Minnesota is land held in trust by the United States for the benefit of the Minnesota Chippewa Tribe or the Mille Lacs Band or its Members. (Answers [Docket Nos. 17, 21] ¶¶ 5.F-G; see also, Mem. Op. & Order [Docket No. 46], at 5).
"Under Band law, the Band established and maintains a police department authorized to promote public safety, protect members of the Band and Band property, preserve the peace, and work with other law enforcement agencies to promote the peace." (Compl. ¶ 5.I). "The Band has authorized its law enforcement officers to make arrests and to carry handguns, other firearms, and other weaponry for their personal protection and the protection of others." (Id.).
In June 2016, the County of Mille Lacs, Minnesota (the "County") revoked the 2008 cooperative law enforcement agreement between the Band and the County. (Ex. E [Docket No. 99-1], at 19). The instant case concerns the authority of the Band to establish a police department and the authority of the Band police officers to conduct law enforcement activities in the absence of such an agreement. (See, Compl. [Docket No. 1). The Parties dispute the extent of Band police officers' authority to conduct law enforcement activities related to violations of federal, state, and/or tribal law. Particularly, the Parties dispute whether Band police officers have theauthority to conduct law enforcement activities throughout the 1855 Reservation or whether such authority is restricted to the Trust Lands, and the extent of Band police officers' authority to conduct law enforcement activities involving non-Band members. .
Following the revocation of the 2008 cooperative law enforcement agreement, Defendants issued a protocol stating that it was "Mille Lacs County's position that inherent tribal criminal authority doesn't exist (1) outside trust lands or (2) to non-members of Mille Lacs band" and listing what Band police officers could and couldn't do in lieu of such authority. (Ex. K [Docket No. 99-1], at 63). In accordance with that Protocol, the County Attorney, Defendant Walsh, issued an opinion in July 2016 which stated in part that Band police officers, if they conduct law enforcement activities outside of the Trust lands, could be guilty of using their firearms to cause fear in another of immediate bodily harm or death (a felony with a mandatory sentence of three years), false imprisonment (a felony), pretending to be a peace officer (a gross misdemeanor), unauthorized practice of a law enforcement officer (a misdemeanor), or obstructing or interfering with a peace officer (a misdemeanor). (Ex. J [Docket No. 99-1], at 57-58).
In a letter to the Band's Police Chief, dated August 25, 2016, Defendant Walsh reiterated that Band police officers' law enforcement related actions could constitute crimes. (Ex. N [Docket No. 99-1], at 72). Moreover, in a letter to a Band police officer, dated September 20, 2016, Defendant Walsh informed the officer that a particular case had been dismissed and stated, "[i]f you wish for controlled substance offenders to be prosecuted in Minnesota District Court inthe future, . . . please comply with the Opinion and Protocol . . . ." (Ex. O [Docket No. 99-1], at 75).
On November 11, 2017, Plaintiffs filed their Complaint in this Court. In relevant part, the Complaint makes the following factual allegations.
The Band's Police officers "are all peace officers licensed by the Minnesota Board of Police Officer Standards and Training." (Id. ¶ 5.J).
In December 2016, the United States Bureau of Indian Affairs entered into a Deputation Agreement with the Band and subsequently issued Special Law Enforcement Commissions (SLECs) to Band police officers under 25 U.S.C. §§ 2801 and 2804. Pursuant to the Deputation Agreement, the SLECs and federal law, Band police officers have authority to investigate violations of federal law throughout the Reservation and to arrest suspects (including Band members and non-Band members) as federal law enforcement officers.
(Id. ¶ 5.K; see also, Ex. Q [Docket No. 99-1], at 79-88).
According to statistics published by the Minnesota Bureau of Criminal Apprehension, Mille Lacs County had the highest crime rate of any county in Minnesota during 2015 and 2016. Within Mille Lacs County, a disproportionate amount of criminal activity occurs within the Reservation. Criminal activity within the Reservation is not limited to trust lands, but takes place on Band and non-Band member fee lands as well.
(Id. ¶ 5.L).
Defendants "assert that Band police officers have no law enforcement authority within the Reservation except on trust lands" and also that "Band police officers have no authority to investigate violations of federal, state or tribal law by non-Band members, even on trust lands." (Id. ¶¶ 5.M-N).
"The County Attorney has threatened Band police officers, including Plaintiffs Rice and Naumann, with arrest and prosecution if they exercise law enforcement authority on non-trust lands within the [1855 Reservation] or with respect to non-Band members." (Id. ¶ 5.O). "TheCounty Attorney has asserted that he will not prosecute criminal cases based on investigations conducted, or evidence gathered, by Band police officers on non-trust lands within the Reservation or with respect to non-Band members." (Id. ¶ 5.P). "The County Sheriff and the County Attorney have instructed the Sheriff's deputies not to arrest suspects apprehended by Band police officers exercising their inherent tribal and federally delegated law enforcement authority." (Id. ¶ 5.Q).
Defendants' threats and assertions "are based on an erroneous understanding of the authority possessed by Band law enforcement officers" and "have deterred Band police officers from exercising law enforcement authority conferred upon them by the Band pursuant to: (1) the Band's inherent authority under federal law; (2) the Deputation Agreement between the Band and the Bureau of Indian Affairs; and (3) the SLECs issued to Band police officers by the Bureau of Indian Affairs." (Id. ¶¶ 5.O-S). Defendants' threats and assertions have also "deterred Band police officers from responding to criminal activity within the Reservation, including drug trafficking, gang activity and violence that threatens the safety, health, welfare and well-being of Band and non-Band members who live and work within, and visit, the Reservation." (Id. ¶ 5.T). Therefore, Defendants' "have interfered with the lawful exercise of federal tribal enforcement authority." (Id.).
For relief, Plaintiffs seek, pursuant to 28 U.S.C. § 2201, a declaration that:
A. As a matter of federal law, the Band possesses inherent sovereign authority to establish a police department and to authorize Band police officers to investigate violations of federal, state and tribal law within the Mille Lacs Indian Reservation as established in Article 2 of the Treaty with the Chippewa, 10 Stat. 1165 (Feb. 22, 1855), and, in exercising such authority, to apprehend suspects (including Band and non-Band members) and turn them over to jurisdictions with prosecutorial authority; andB. Pursuant to 18 U.S.C. § 1162(d), 25 U.S.C. §§ 2801 and 2804, the Deputation Agreement between the Band and the Bureau of Indian Affairs, and the SLECs issued to Band police officers by the Bureau of Indian Affairs, Band police officers have federal authority to investigate violations of federal law within the Mille Lacs Indian Reservation as established in Article 2 of the Treaty with the Chippewa, 10 Stat. 1165 (Feb. 22, 1855), and, in exercising such authority, to arrest suspects (including Band and non-Band members) for violations of federal law.
(Compl. [Docket No. 1]). Plaintiffs fur...
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