Nearly two years ago, in November 2017, the Mille Lacs Band sued Mille Lacs County, the Sheriff, and the County Attorney in federal court. The Band’s lawsuit raises issues concerning law enforcement rights and responsibilities, but it also goes to the question of whether or not the Reservation, established by an 1855 treaty, still exists. In simplest terms, the Mille Lacs Band claims that the Reservation continues to exist and that all lands in the county’s three northern townships–Kathio, Isle Harbor and South Harbor, including the Cities of Onamia, Isle and Wahkon–should still be considered Indian country. Additionally, the Band claims the Reservation includes the southwest area of Lake Mille Lacs. The Band claims jurisdiction, in varying degrees, over this area.

The county’s position is that the Reservation was “disestablished” or “diminished” and that the vast majority of the contested lands have passed into non-Band ownership. Accordingly, jurisdiction in nearly all of these lands rests with the county.

Lawsuits over the status and existence of a reservation are not unique in the United States. Over the last 50 years, there have been numerous federal court cases considering whether a reservation was created, and if so, whether that reservation was disestablished or “diminished” (reduced in size).

Like many legal questions, determining the boundaries of a reservation can be complex, time-consuming and uncertain. Each case may involve different parties, different claims, and a different set of facts and history. “Slam dunks” or easy cases rarely end up before a judge, and it’s not unheard of that neither side gets a result they wanted. In each case, a court must wrestle with:

• The facts of the case, some of which can stretch back over a century or more.

• The evidence allowed to be presented in court.

• The plain language of the relevant laws.

• The intent of Congress in passing the laws.

• The case law or precedents from other cases that may guide the Court.

Courts have been particularly careful in examining questions concerning the boundaries of Indian country. The United States Supreme Court has developed a three-part test to determine whether an Indian reservation has been disestablished or diminished, looking for Congressional intent.

1) The text of the relevant statute used to open Indian lands to sale.

2) Examination of the circumstances surrounding the passage of the Act that opened Indian lands for sale, the negotiations and the tenor of legislative reports presented to Congress.

3) The subsequent treatment of the area and the pattern of settlement.

The courts will not lightly conclude that an Indian reservation has been disestablished or terminated, so Congressional intent must be clear. That approach can be seen in three recent cases that address whether a reservation was created or if it has been diminished. These cases have some common elements that may prove relevant to the Band’s lawsuit:

• In Northern Arapaho Tribe v. Wyoming, a decade-long dispute between the Tribe and the State of Wyoming, the U.S. Supreme Court in 2018 let stand a decision by the 10th Circuit Court of Appeals which determined that the Wind River Reservation in Wyoming was diminished by a 1905 Act that used the terms “cede, grant and relinquish.” Similar language appears in the 1863/64 Treaties and the 1889 Nelson Act and Agreement with the Mille Lacs Band.

• Just last month, a federal court in Michigan issued a ruling in Little Traverse Bay Band of Odawa Indians v. Whitmer that rejected a claim that the Treaty of Detroit created a reservation. After four years of litigation, the Court ruled the Treaty set aside lands for individual band members with a “patent” for the land given to individuals. In other words, ownership of lands was given to individual Band members and not to the Band collectively. Similar use of the term “patent” appears in the 1889 Nelson Act negotiations.

• In April, the federal court for eastern Wisconsin issued a ruling in a 2016 lawsuit, Oneida Nation v. Village of Hobart, that the Oneida Reservation had been diminished. That reservation, created by an 1838 treaty, was allotted to individual tribal members. Over time, 95 percent of the original 65,400-acre reservation passed out of Indian ownership. At Mille Lacs, more than 95 percent of the original 61,000-acre reservation has passed out of Indian ownership.

These cases, and others, will be part of the legal analysis in the Mille Lacs Band lawsuit. The language Congress used in the 1863/64 Treaties and in the 1889 Nelson Act, and the fact that virtually all the land in the three Townships passed into non-Indian ownership, reinforces the county’s belief that the Mille Lacs Reservation was either disestablished or greatly diminished. As the foregoing reminds us, however, the path to a decision is long, complex and occasionally surprising.

Randy V. Thompson, Esq., is the hired attorney from Nolan, Thompson, Leighton & Tataryn, Plc for Mille Lacs County.

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