Mille Lacs County Attorney Joe Walsh and Mille Lacs County Sheriff Don Lorge have filed a lawsuit against the State of Minnesota for its refusal to honor its legal obligation–codified in Minn. Stat. § 3.736–to indemnify and save them harmless in connection with any tort, civil, or equitable claim or demand for expenses and attorneys’ fees reasonably incurred, according to the lawsuit’s language.
Mille Lacs County Attorney Joe Walsh explained the lawsuit, stating that in 2016, he requested the Minnesota Attorney General to provide an opinion on an issue of public importance (the cooperative law enforcement agreement between the county and the Mille Lacs Band of Ojibwe) pursuant to Minn. Statute § 8.07 which states that “the attorney general on application shall give an opinion, in writing, to county, city, town, public pension fund attorneys, or the attorneys for the board of a school district or unorganized territory on questions of public importance.”
The Minnesota Attorney General at the time, Lori Swanson, responded on July 12, 2016, to Walsh’s request, stating, “This Office does not and cannot sit as a court of law to adjudicate disputes. Rather, it is only permitted to issue opinions regarding city and county administration authority … Nor does this Office generally issue opinions on hypothetical or fact-dependent questions, issues that may arise in litigation, or construe provisions of federal law.”
The author of the letter, Christie B. Eller, deputy attorney general, added that “you should proceed to advise the County as you deem appropriate.”
Walsh stated that he did his duty under Minnesota law and advised the county in regards to the cooperative agreement on behalf of the State and is now being sued, along with the sheriff, by the Mille Lacs Band of Ojibwe.
Walsh argues that Minnesota law requires the State to indemnify, or compensate, any person acting on behalf of the State, under Minn. Stat. § 3.736. The most relevant part of that statute, according to the lawsuit, is that “the state shall defend, save harmless, and indemnify any employee of the state against expenses, attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the employee in connection with any claim or demand arising from the issuance and sale of securities by the state, whether groundless or otherwise, arising out of an alleged act or omission occurring during the period of employment if the employee provides complete disclosure and cooperation in the defense of the claim or demand and if the employee was acting within the scope of employment.”
The definition of the “employee of the state” is provided in Minn. Stat. § 3.732, subd. 1(2): “‘Employee of the state’ means … persons acting on behalf of the state in an official capacity, temporarily or permanently, with or without compensation.”
The lawsuit contends that the Band’s allegations against both Walsh and Lorge in the federal lawsuit by the Band arise out of an alleged act or omission occurring during the period of their employment.
“On behalf of the Mille Lacs County taxpayers, Mille Lacs County has requested that the Attorney General meet the State’s duty to indemnify Mille Lacs County for the costs of defending myself and the sheriff against the lawsuit,” said Walsh in an email statement. “The Attorney General refused to meet its duty to provide indemnification to the benefit of Mille Lacs County taxpayers.”
Details of the County’s lawsuit against the State
The lawsuit lays out a history of Band related facts and what creates a position against the expansion of the current boundaries of the Mille Lacs Band of Ojibwe Reservation. A summary of the facts section in the lawsuit are as follows:
• A mid-eighteenth century map by Henry Popple, Lake Mille Lacs is shown as Lake Minsisaugaigun and was the ancestral home of the Santee Sioux, also known as Dakota.
• On July 2, 1679, Daniel Greysolon, Sieur du Lhut (the namesake of the City of Duluth) planted the flag of France on the shores of Lake Mille Lacs.
• By the mid-eighteenth century, Ojibwe had used gunpowder to exterminate or expel the native Dakota from the shores of Lake Mille Lacs during what has become known as the Battle of Kathio.
• In 1855, the United States by the Treaty of Washington (Feb. 22, 1855), 10 Stat. 1165, established a reservation of approximately 61,000 acres on the southern shores of Lake Mille Lacs.
• The 1855 Reservation was disestablished by the Treaty with the Chippewa of the Mississippi and the Pillager and Lake Winibigoshish Bands, U.S.-Chippewa and Pillager and Lake Winibigoshish Bands (Mar. 11, 1863), 12 Stat. 1249 (the “1863 Treaty”).
• Article 1 of the 1863 Treaty provides “The reservations known as Gull Lake, Mille Lac, Sandy Lake, Rabbit Lake, Pokagomin Lake, and Rice Lake, as described in the second clause of the second article of the treaty with the Chippewas of the 22nd February, 1855, are hereby ceded to the United States, excepting one-half section of land, including the mission-buildings at Gull Lake, which is hereby granted in fee simple to the Reverend John Johnson, missionary.”
• Article 1 of the 1864 Treaty ceded the 1855 Reservation to the United States.
• Any interest the Mille Lacs Band had under Article 12 of the 1863 and 1864 Treaties was extinguished following “An act for the relief and civilization of the Chippewa Indians in the State of Minnesota,” also known as the Nelson Act (Jan. 14, 1899), 25 Stat. 642.
• The Nelson Act was intended to consolidate all the Ojibwe in Minnesota, except those in Red Lake, to the White Earth Reservation.
• Through negotiations conducted under the authority of the Nelson Act, the commissioners secured agreements with the Indians embodying the contemplated cessions and relinquishments, and these, upon submission to the President, were approved by him March 4, 1890.
• The Nelson Act Agreement provided that Mille Lacs Band “forever relinquish[es] to the United States the right of occupancy on the Mille Lacs Reservation” reserved by Article 12 of the Treaty of 1864. United States v. Mille Lac Band of Chippewa Indians in Minn., 229 U.S. 498, 504-05 (1913).
• Mille Lacs Band of Ojibwe (the “Band”) is a constituent member of the Minnesota Chippewa Tribe, which is a federally recognized Indian Tribe.
A section titled the “Defendant’s Position” in the recent lawsuit against the State, regarding the 2017 lawsuit by the Mille Lacs Band of Ojibwe, Sara Rice (Mille Lacs Band Chief of Police) and Derrick Naumann (Sergeant of the Mille Lacs Band Police Department) against Mille Lacs County, County Attorney Joe Walsh, and County Sheriff Don Lorge (at the time of lawsuit filing, the sheriff was Brent Lindgren) iterates the county’s position on the tribal policing jurisdiction and expanding reservation boundaries. The following is a summarized list of those positions:
• In an April 26, 2013 letter to the Director of the Office of Tribal Justice within the U.S. Department of Justice, then Governor Mark Dayton wrote, “The State of Minnesota’s longstanding position has been, and continues to be, that the boundaries of the Mille Lacs Reservation are limited to approximately 4,000 acres of land held in trust by the federal government for the Mille Lacs Band.”
• In a February 6, 2007 letter to the Mille Lacs County Attorney, then-Minnesota Attorney General Lori Swanson wrote, “As you know from your contacts with this Office over the past few years, it has long been the position of this Office that the Mille Lacs Reservation boundaries are limited to the approximately 3,000-4,000 acres of land held in trust for the Band.”
• In a March 30, 2005 letter to the U.S. Department of the Interior, then-Gov. Tim Pawlenty wrote, “Minnesota’s position has long been, and remains today, that the 1855 Mille Lacs Reservation was disestablished through subsequent federal treaties and laws. The State retains jurisdiction and regulatory authority over all public waters and lands within the 1855 boundaries which are not held in trust by the federal government for the Mille Lacs Band.”
• In an August 9, 1999 letter then-Attorney General Mike Hatch, and in a November 27, 1995 letter, then-Gov. Arne Carlson echoed the positions of former Gov. Pawlenty, former Attorney General Lori Swanson, and former Gov. Mark Dayton.
• There are approximately 56,000 acres within the former 1855 Reservation that are now fully under State jurisdiction; all lands except held in trust by the United States. As to the trust lands, the State has more limited civil jurisdiction and broad criminal jurisdiction under Public Law 280. The Band’s Federal case seeks to convert thousands of acres of State-controlled land–islands in Lake Mille Lacs, two state parks, essentially the southern shore of Lake Mille Lacs, State Highways 169 and 27, and other parcels including State education trust lands–into Indian Country through judicial recognition of the boundaries of the former 1855 Reservation. The issues in the Band’s Federal Case are of statewide importance for all Minnesotans who fish, hunt, camp, visit parks, use highways, and attend public schools.
The 2017 lawsuit by the Band against the County
Excerpts outlining the Band’s position in their 2017 federal lawsuit against Mille Lacs County:
• The Mille Lacs Indian Reservation (“Reservation”) was established in 1855 by Article 2 of the Treaty with the Chippewa, 10 Stat. 1165 (Feb. 22, 1855). The Reservation comprises approximately 61,000 acres of land. The United States owns approximately 3,572 acres of land within the Reservation in trust for the Band, the Minnesota Chippewa Tribe and Band members (“trust lands”). 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 (collectively, “Band fee lands”).
• The boundaries of the Reservation as established in 1855 have not been disestablished or diminished. In particular, the Treaty with the Chippewa of the Mississippi and the Pillager and Lake Winnibigoshish Bands, 12 Stat. 1249 (Mar. 11, 1863), and the Treaty with the Chippewa, Mississippi, and Pillager and Like Winnibigoshish Bands, 13 Stat. 693 (May 7, 1864), preserved the Reservation for the Mille Lacs Band, and the Act of January 14, 1889, 25 Stat. 642 (known as the Nelson Act) did not disestablish or diminish the Reservation or alter the Reservation’s boundaries.
• All lands within the Reservation as established in 1855 are Indian country within the meaning of 18 U.S.C. § 1151.
Included in the “Demand for Relief” section:
• 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.
• Plaintiffs further request that the Court enjoin Defendants from taking or failing to take any actions that interfere with the authority of Band police officers as declared by the Court. Plaintiffs further request an award of their costs and attorneys’ fees in this action.
Where is the Federal case now?
The county’s attorney, Randy Thompson, of Nolan, Thompson, Leighton & Tataryn, PLC gave an update on the status of the lawsuit.
“The federal lawsuit filed by the Mille Lacs Band is in its ‘fact discovery’ stage and will continue until February 28, 2020 with depositions of fact witnesses from both sides expected to be taken in January and February,” said Thompson. “In March, the case will move into the ‘expert discovery’ phase that is scheduled to run through the end of June. In preparation for that phase, initial expert reports of the parties were exchanged on October 1st and rebuttal reports of experts are due February 1st.”
He added that it is likely that motions by both parties will be heard by the court in the spring and into the fall. A trial date in this matter has not been set, he said, and the parties have been notified to be ready to start trial as soon as November 1, 2020.
A copy of the federal lawsuit can be found at https://millelacsband.com/content/8-news/20171118-mille-lacs-band-of-ojibwe-files-lawsuit-against-mille-lacs-county/11-17-17-complaint.law.enf.bound.pdf.