Petition for Writ of Certiorari — First National Bank of Milaca v. Benjamin
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Supreme Court, U.S.
FILED
Supreme Court of the Anited States
FIRST NATIONAL BANK OF MILACA,
Petitioner,
Vv.
MELANIE BENJAMIN, ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
PETITION FOR A WRIT CF CERTIORARI
SCOTT GREGORY KNUDSON
Counsel of Record
BRYANT D. TCHIDA
BRIGGS AND MORGAN, P.A.
332 Minnesota Street
Suite 2200
Saint Paul, MN 55101
(651) 808-6600
August 17, 2004 Counsel for Petitioner
: First National Bank of
Milaca
a BN
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001
i
QUESTION PRESENTED
When a tribe attempts to resurrect a reservation that
nonmembers justifiably believed long disestablished. by
asserting sovereign authority over the former reservation. can
a nonmember doing business within the former reservation
boundaries seek declaratory relief concerning those
boundaries only when the tribe has sought to enforce its
regulations over that nonmember business?
ii
CORPORATE DISCLOSURE STATEMENT
Pursuant to Sup. Ct. R. 29(6) Petitioner First National
Bank of Milaca states that it is a family-owned, closely-held
corporation with no parent company. and no publicly-held
corporation owns ten percent or more of the Bank's stock.
iil
PARTIES TO THE PROCEEDING
The parties to this proceeding are as follows:
1) Petitioner First National Bank of Milaca:
2) Petitioner County of Mille Lacs. Minnesota:
3) Respondent Melanie Benjamin, individually and
officially as Chief Executive, Mille Lacs Band of
Chippewa Indians:
4) Herb Weyaus. individually and officially as
Secretary/Treasurer, Mille Lacs Band of Chippewa
Indians:
5) Sandra Blake, individually and officially as
District Representative. Mille Lacs Band of
Chippewa Indians:
6) Marvin Bruneau, individually and officially as
District Representative. Mille Lacs Band of
Chippewa Indians:
7) Harry Davis. individually and officially as District
Representative. Mille Lacs Band of Chippewa
Indians.
hy
TABLE OF CONTENTS
Page(s)
Ce re Re Ee sins aden scasaceaxccrasssinrpnnmateinaseinarnn i
CORPORATE DISCLOSURE STATEMENT..................0.. il
PART FU Ti Pe Oe viv vcncceticismsaixtneniniscssones iil
FP BF re Ftd ctcntctcintnicenmnntione v
PETITION FOR WRIT OF CERTIORARI... ee l
eR Se iv hscteasarntivctavinsinbncianstanistansicomacpoaenints l
FUT TIN oc cssscivessnannssarsoussnvenesonsenseeacnsnaneasaeonannensvanesten l
CONSTITUTIONAL AND STATUTORY
go fake a Eb t A 2 | Bere nnnsenmrror ren l
SEA Tree Sie Be Pie wis cisnccicecesesissesartiowcimnssttiioninn 2
REASONS FOR GRANTING THE PETITION ........... 15
THIS CASE PRESENTS THE IMPORTANT
FEDERAL QUESTION OF WHEN A NON-
INDIAN PARTY MAY CHALLENGE THE
EXISTENCE OF TRIBAL POWER TO
RECIUL ATE OAIGATINESEICS sncsssscinicssscsisvoscocasisinn 15
CORBIN ERT G IES scnscncovcnscxsasstrnsesncadsabinhdapiineednincanenaskanaiadenenaie 27
V
TABLE OF AUTHORITIES
Page(s)
CASES
Atkinson Trading Co. v. Shirley.
FO as Ns TE itescnrasciceacbeniaehaade 21
Babbitt Ford, Inc. v. Navajo Indian Tribe.
FR Ee PET COME Oe Ti iiciteiniceccsdininaseasinn 23
Baker Electric Co-op, Inc. v. Chaske.
Be FO CI CE, Beavis sscicevereccesstrccceniconns 19, 21
City of New Town, N.D. v. United States.
ROR Fide B20 CG Ce sence een 16.17. 18
DeCoteau v. Dist. County Court for Tenth Judicial
Dist..
AT ls NW PB cssctnessanncsnacdviep anaemia 4.5
Duke Power Co. v. Carolina Envtl. Study Group.
Inc..
TS As OF CR SPEDE Kiicsisenedsmniicasneiammeaaaian 16
Federal Express Corp. vy. Air Line Pilots Ass'n,
OF F.20 Set CEPA... CA TONS ainaxeincleauicannnn 15
Hornell Brewing Co. v. Rosebud Sioux Tribal Court.
SS 1 TORT CE, Fi icc ccc 21
Idaho v. Coeur d'Alene Tribe of Idaho,
FON Rie ON A CTT P ccinsiiattinivicadcstutegmeanemadani ae ates 17
Lower Brule Sioux Tribe v. State of South Dakota,
CUE. FZ et Ce RM: FI iccsssesnarncstaoastioenen 18
Mille Lacs Band of Chippewa Indians v. Minnesota,
PF Cdk FO CRUE, EI iciniincssertineemicoaneninnes b3, 21, 22
Nevada v. Hicks,
SOD APS Fae CAE Do civiniscesaoeemeaenntnnandaemanaana cee
vl
Northern States Power Co. v. Prairie Island
Mdewakanton Sioux Indian Cmty..
99] F.2d 458 (Bth Cir. 1993)..............cccccssssssessenneeees 20, 21
Northern States Power Co. y. Prairie Island
Mdewakanton Sioux Indian Cmty.,
781 F. Supp. 612 (D. Minn. 1991)... eeeeeseeeeeseteeeees 20, 21
Oneida Indian Nation of N.Y. v. City of Sherrill, N.Y.
337 F.3d 139 (2d Cir. 2003). cert. granted. 1248S. Ct.
DODE (DOD) avcssescscersconcsecessesosrerssenssocvonscsassesnenesonssansvensnennss 26
Pacific Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm'n.
AG1 U.S. 190 (19BBD ....cocccesscrccccsccrssccoscnssvonssnsccssensncnssenenses 16
Rosebud Sioux Tribe v. Kneip.
375 F. Supp. 1065 (D.S.D. 1974). aff'd. 521 F.2d 87
(8th Cir. 1975). aff'd. 430 U.S. 584 (1977)... ceeeeseeeeeesees 16
Rosebud Sioux Tribe v. Kneip.
MSE 15S SHA CEST TY svicvsnnvessisasirsssnvasconsnsnssstaccassavenns 3.17. 18
South Dakota v. Yankton Sioux Tribe.
BPD 15, SID CUDGRD cnvcscsseveresvervesssnncsastnancsdvennsncsncaners ae
Tenneco Oil Co. v. Sac & Fox Tribe of Indians of
Okla...
S55 FFs S72 CR Cie, VIBE) a vecccnsvsrsssicreseanscicsnanician OO 21
United States. v. Lara.
DPS Ch, LGA IIOAD ccncssescicenssscosrcnnsnccessnncsecesssnsnssaceneansn 24
United States v. Mille Lac Band.
979 U.S. 498 (1913) en eT MELEE It E
Williams-Willis v. Carmel Financial Corp..
139 F. Supp. 2d 773 (S.D. Miss. 2001) .....:eeceeseeeeeeteteees 23
Wisconsin v. Baker.
GOE F.2d 1323 Cth Clin. UGB). oncorscsssssnsensersiisssiencsnseen My BM
Vil
STATUTES
USE AA ches ce 23
FSS) © Fe OE crriinsnniininciemeonaae
A CEE, SE asisvcinsciecneiveieecicriitnieeaiicaien 23
ee ec Ae FO patents haszancpcaandieneinouuashinseensscansiameatesamonla 23
Be ele 6 VR ict sithieadsiokacneenmaal |
y BUR + Oe Kt | ereeweren ssniihiatiasiniitsieplaapibieniibiaetaniaaiidceiete l
Be le sb BE cischtoisatiieessinindinatinbiiemeneaaans |
Clean Water Act, 33 U.S.C. § 1251 ef S€q ........s.ssseeseseeeees 23
National Historic Preservation Act
BO ET 6 FOE Bi vcisseenivciscnnciiennstensnsencaiesennvans eee
Nelson Act. ch. 24, 25 Stat. 642 (1889) ou. eee 6
Be ee iii senieincchenciencieaaeeanninin 7
CS CLA. © Oe OF i iiscicccecctincenrindiniinarae ae
TREATIES
Treaty of Feb. 20, 1835, 10 Stat. PIGS ......0cccrcscsecsrcssressice 2
March 11. 1863 Treaty between the United States and
the Chippewa Indians.
Fe Ts Pee ckicsnnd nibassciasnscdicamsledaiadaatgeaiansensanesionmonacianssbadailaiies 4
May 7. 1864 Treaty between the United States and
the Chippewa Indians,
a ee 4
STATE RULES
Dbl: Oe OI i cnisnciavn casastsnrcecsnrncsnmantsoormarec 12
MILLE LACS BAND STATUTES
SINS BIE os pikes sn oeiidctnserno 12
NS Oe 12
Fe. SAO PSTN nn ome Famer 12
18 MLBSA § 101] vu... ee eeeeeeeeseeteeereeeeeeseteresensenneennennees 10
1B DAGESA © UGS ..ccreccssresensesns chaieadublalidinadeceanmaamannmneapinr 10
2A WAL BIGA. © F visensscvsncssscrsossensins stsenenseecneccescassseesenaes pape.
D4 MLBSA § 3 1......cccssscscccsscssscscrccsesesscssccscnsssscccesnsesasenees 12
24 MLBSA § 4......0cccessssssscccsossccscccesascescsosrsnssoncceennsees ie £6
24 MLBSA § 5 ......c.csesccsorecccsenssssccssoersescrecsosvessncsosasens 12, 22
24 MLBSA § 6 .u.......ccescesssesserssseeccsesssssncesscessnssecnseensens 12, 22
pA 8 Eo renee 12.22
24 MLBSA § 3501-3510... ce cceeceseeeteeeeeeneeeseeeeeseeeeeeeeeeenes 12
MISCELLANEOUS
H.R. Ex. Doc. No. 68, 37th Cong.. 3d Sess. (1863) .......... 2
H.R. Ex. Doc. No. 1. 38th Cong.. Ist Sess. 1182
H.R. Ex. Doc. No. 148. 48th Cong.. Ist Sess. 2207
CR BUAY cs vicscinsenticssscecccavasicecsssenseruccnssniniersnnssonnsnnavscsasibeitononses 4
H.R. Ex. Doc. No. 247. 51st Cong., Ist Sess. (1890).......... 6
SECONDARY AUTHORITY
Alex Tallchief Skibine. The Dialogic of Federalism
in Federal Indian Law and the Rehnquist Court: The
Need for Coherence and Integration,
8 Tex. F. on C.L. & C.R. 1 (Spring 2003)... ceeeeeeeeeees 24
Rebecca Kugel. To Be THE MAIN LEADERS OF OUR
PEOPLE A HISTORY OF MINNESOTA OJIBWE POLITICS
1825-1898 ( | TT CR aE ih ke PRON Te mnTe o 3
PETITION FOR WRIT OF CERTIORARI
Petitioner First National Bank of Milaca petitions this
Court for writ of certiorari to review the judgment of the
United States Court of Appeals for the Eighth Circuit in this
case.
OPINIONS BELOW
The district court’s opinion (9a-27a) is reported at 262 F
Supp. ? + 990 (D. Minn. 2003). The Eighth Circuit's opinion
(la-8a, is reported at 361 F.3d 460 (8t: Cir. 2004). The
order of the Eighth Circuit denying the petition of First
National Bank of Milaca for rehearing and for rehearing en
banc (28a) is unreported.
JURISDICTION
The district court had subject matter jurisdiction under 28
U.S.C. § 1331 because this case seeks declaratory relief
regarding federal Indian treaties and acts of Congress. The
district court's judgment was entered on May 7. 2003 and
was timely appealed to the Eighth Circuit on June 5. 2003.
The judgment of the Eighth Circuit was entered on March 9.
2004. The Eighth Circuit denied a timely petition for
rehearing and for rehearing en banc on May 19, 2004. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution. Art. III, § 2:
28 U.S.C. § 2201.
Certain treaties between the United States and the Chippwas
and certain statutes promulgated by the Mille Lacs Band are
found in the Appendix at 29a-S6a.
9
STATEMENT OF THE CASE
The fundamental issue underlying this case is whether an
Indian reservation established in 1855 and extinguished by
plain treaty language eight years later continues to exist.
Petitioners First National Bank of Milaca (“Bank”) and the
County of Mille Lacs (“County”) believe that the reservation
was formally disestablished by subsequent treaties, and that
any provisional right of Respondents” ancestors to avoid
compulsory removal from the former reservation was
extinguished in subsequent negotiations authorized by
Congress. As stated in its brief amicus curiae to the Eighth
Circuit in this matter. the State of Minnesota concurs fully in
that position. (See App. 59).' Respondents. leaders of the
Mille Lacs Band of Chippewa (Ojibwe). maintain that the
reservation was never disestablished. if for no other reason,
some decendants of Band members have continued to live
within the boundaries of the original reservation up to the
present. (See App. 406-407. 411. 422).
In 1855 the United States signed a treaty with the
Mississippi Bands of Chippewa creating for them six
reservations in northern Minnesota. Treaty of Feb. 20, 1855.
10 Stat. 1165 (App. 7-13). One of these reservations
comprised approximately 61.000 acres in three townships on
the south shore of Mille Lacs Lake in north central
Minnesota. /d. By 1863. however. after the 1862 Sioux
uprising in southern Minnesota and a lesser known Chippewa
uprising that same year, the Interior Department revised its
reservation policy with the Mississippi Chippewa. See H.R.
Ex. Doc. No. 68. 37th Cong.. 3d Sess. at 3-4 (1863): H.R.
Ex. Doc. No. 1. 38th Cong.. Ist Sess. 1182 at 149-150
(1863): see also Rebecca Kugel. To BE THE MAIN LEADERS
' Cites to the Bank's Supreme Court Appendix are designated
as (__a), Whereas cites to the Bank's Eighth Circuit Appendix
are designated as (App. ).
&
3
OF OUR PEOPLE A HISTORY OF MINNESOTA OJIBWE POLITICS
1825-1898. 77-80 (1998).
That year the federal government negotiated a new treaty
with the Mississippi Chippewa that ceded the six reservations
created by the 1855 Treaty and removed the Mississippi
Chippewa to a single reservation farther north and more
remote from white settlements. March 11. 1863 Treaty
between the United States and the Chippewa Indians, 12 Stat.
1249 (29a-36a). The federal government also negotiated a
second treaty in 1864 that likewise ceded the reservations
established by the 1855 Treaty. May 7. 1864 Treaty between
the United States and the Chippewa Indians, 13 Stat. 693
(37a-42a).
The provision ceding the reservations created by the 1855
Treaty was straightforward :
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 22d
February. 1855, are hereby ceded to the United
States.
(30a. Article I) (38a. Article 1) (emphasis added).
Language such as this has been held “precisely suited” to
extinguish a reservation. Rosebud Sioux Tribe vy. Kneip. 430
U.S. 584. 592 (1977). see also South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329, 343 (1998) (specific cession
language overrode savings clause). Similarly, Respondents
have not asserted in this litigation that the language of
cession in Article | was ambiguous or that the plain meaning
of these words of cession could not be understood by the
Chippewa negotiators.
The federal government viewed these treaties as
terminating the Mille Lacs Reservation. Reporting on the
1863 Treaty, the Secretary of the Interior wrote Congress:
4
As this treaty has been published. I deem it
unnecessary to allude to its provisions further than to
state. that by its terms the reservations at Gull lake,
Mille Lac. Sandy lake, Rabbit lake. Pokagomin lake,
and Rice lake. are ceded to the United States. and a
new reservation established in the vicinity of and
including the reserves of the Pillager and Lake
Winnibigoshish bands for the Indians of — the
reservations ceded ....
H.R. Ex. Doc. No. 1. 38th Cong.. Ist Sess. 1182 at 150
(1863).
While there can be little doubt that the 1863 and 1864
Treaties extinguished the Mille Lacs Reservation as a
juridical entity, current Band members assert that it continues
to exist. (App. 406-407. 411, 422). In large part their claim
is based on the following proviso found in Article 12 of both
the 1863 and 1864 Treaties:
Provided. that owing to the heretofore good conduct
of the Mille Lacs Indians. they shall not be compelled
to remove so long as they shall not in any way
interfere with or in any manner protest the persons or
property of the whites.
(34a. Article 12) (41a-42a, Article 12). The “good conduct”
referred to in the proviso was apparently the Mille Lacs
Band's open opposition to the uprising fomented by other
Chippewa in 1862. See H.R. Ex. Doc. No. 148, 48th Cong..
Ist Sess. 2207 at 4 (1884).
Familiar Nineteenth Century forces, see DeCoteaw v.
Dist. County Court for Tenth Judicial Dist.. 420 U.S. 425.
431 (1975). were at work in Mille Lacs County, where the
former reservation was located. Soon after cession, settlers
and loggers pressed to move onto the former reservation
land. See, e.g.. H.R. Ex. Doc. No. 148, 48th Cong., Ist Sess.
2207 at 8 (1884). By 1877 the Secretary of the Interior was
Boos tire
So OB.
5
compelled to resolve the validity of a settler’s claim to a
parcel within the former Mille Lacs reservation. Jd. The
Secretary determined that the claim was valid because the
reservation had been ceded. and all the Mille Lacs Band
retained was a reprieve from forced removal:
Under this proviso [referring to proviso of the twelfth
article of the treaty of 1863] it is true that, so long as
said Indians do not interfere with the persons or
property of the whites. they cannot be compelled to
remove: but it by no means gives them an exclusive
right to the lands. nor does it, in my judgment.
exclude said lands from sale and disposal by the
United States.
Id. (emphasis added). The Secretary concluded that the Mille
Lacs “might remain, not because they had any right to the
lands, but simply as a matter of favor.” /d. Although the
Secretary determined that the claim was valid. he suspended
the decision because there were still Mille Lacs Band
members residing on the former reservation. /d.
The federal government never formally exercised its right
to remove the members of the Mille Lacs Band (or members
of other Chippewa bands) that continued to live near Mille
Lacs Lake. This lead to uncertainty over the validity of
entries that white settlers had made on “about 55.000 acres.
or approximately nine tenths of the lands, ...°° United States
v. Mille Lac Band, 229 U.S. 498, 502-503 (1913). To resolve
the validity of these entries, Congress passed the Nelson Act.
ch. 24, 25 Stat. 642 (1889). This act was intended to address
the status of various reservations in Minnesota and to secure.
so far as possible. the consolidation of the various Chippewa
Indians onto two reservations in northern Minnesota. /d.
The Nelson Act empowered the President to appoint three
Commissioners, who were charged with one directive:
6
to negotiate with all the different bands or tribes of
Chippewa Indians in the State of Minnesota for the
complete cession and relinquishment in writing of all
their title and interest in and to all the reservations of
said Indians in the State of Minnesota, except the
White Earth and Red Lake Reservations, and to all
and. so much of these two reservations as in the
judgment of said commission is not required to make
and fill the allotments required by this and existing
acts. and shall not have been reserved by the
Commissioners for said purposes... .
Nelson Act at § 1.
After extensive negotiations. the Commissioners and the
Mille Lacs Band reached an agreement. namely, that the
Mille Lacs Band would relinquish its right of occupancy:
We. the undersigned. being male adult Indians over
eighteen years of age. of the Mille Lac band of
Chippewas of the Mississippi. occupying and
belonging to the Mille Lac Reservation under and by
virtue of a clause in the twelfth article of the treaty of
May 7. 1864 (13 Stat. at L. p. 693) do hereby certify
and declare that we have heard. read. and interpreted
and thoroughly explained to our understanding the act
of Congress approved January 14, 1889... and do
hereby forever relinquish to the United States the
right_of occupancy on the Mille Lac Reservation
reserved to_us by the twelfth article of the treaty of
May 7, 1864....
H.R. Ex. Doc. No. 247. 51st Cong.. Ist Sess. at 45-46 (1890)
(emphasis added).
Following these negotiations the Mille Lacs Band
claimed they did not get the compensation the Nelson Act
provided for their concessions. Congress waived sovereign
immunity to allow the Court of Claims to hear their
SRE Ee oer ats an
7
contention. 35 Stat. 619 (1909). Losing in that forum. the
government appealed to this Court, which held that no rights
of the Mille Lacs Band had been infringed when Congress
validated the land entries made prior to the Nelson Act:
We are accordingly of opinion that the act of 1889. to
which the Indians fully assented, contemplated and
authorized the completion, and the issuing of patents
on, all existing pre-emption and homestead entries in
the Mille Lac tract which, in the course of
proceedings in the Land Department, should be found
to be within the terms of the proviso to § 6, and
therefore that no rights of the Indians were infringed
in so disposing of lands embraced in such entries.
229 U.S. at 508-09 (emphasis added).
In so holding. the Court rejected two of the Band's
contentions: 1) the Band did not understand the terms of the
Nelson Act: and 2) the Mille Lacs area was still a reservation
after the 1863 and 1864 Treaties. /d. Both determinations
Were an essential part of the Court's holding. /d. To reach
this holding. the Court had also to hold that the Mille Lacs
Reservation had been extinguished before the Nelson Act.
i.e., by the 1863 and 1864 Treaties.
Today approximately 90% of the land within the former
reservation is owned by non-members. (App. 343-51). The
Census Bureau shows that the vast majority of the population
within the former reservation is non-Indian and that the
Indian population is concentrated primarily in one township.
_ (App. 337-342). These characteristics bear the hallmark of a
disestablished reservation. See Yankton Sioux Tribe, 522
U.S. at 356-57.
Despite its historical roots, this dispute arises out of
recent efforts of Band leaders to recreate the former 61.000
acre reservation. In 1989 then Chief Arthur Gahbow
delivered a State of the Band address in which ne declared:
8
There must be some divine plan the Great
Spirit has for us as a people. From the time I took
office 16 years ago. until recently | was not sure
what that plan was. But I don’t think it was
divine intervention, it was more common sense
and a sense of injustice that made me arrive at this
conclusion about the land.
That conclusion is this: We will take it back!
We have been on the defensive for 100 years.
I tell you this day. this hour, this moment in
history we are no longer just holding our ground.
As of right now we are on the offensive. We are
on the attack
To state simply. we will take it back.
* * *
_ For now let the word go forth from this time
and place. the state of this Band is sound and let
friend and foe alike know that we are on the
offensive.
We will not back down. We are on the attack.
There is no retreat. There is no surrender.
" fener
(App. 32. 46).
Gahbow’s successor, Marge Anderson. echoed this
approach in her 1998 State of the Band speech:
As Abraham Lincoln once said. “If I had eight
hours to chop down a tree, I'd spend six
sharpening my ax’ . . . [t]he Band has been good
at determining when its ax is sharp enough. And
when we make that determination, we don’t wait
a minute longer.
(App. 314).
9
The Gahbow declaration was followed by an aggressive
course of action in dealing with businesses within the former
1855 reservation. In 1992. the Band wrote to businesses
within that area, announcing the Band’s plan to require all
businesses operating within the boundaries of the former
reservation to be licensed by the Band. (60a-61a). A similar
letter was circulated more recently and also claims that all
businesses operating within the Band’s territory are required
to obtain a Band business license. (62a-63a).
As part of its now declared plan to reclaim the old
reservation in full, the Band has enacted an extensive series
of statutes. most codified in a two volume set published as
the Mille Lacs Band Statutes Annotated. (See, e.g.. 43a-56a:
see also App. 60-307). These Band ordinances establish a
comprehensive series of business regulations from land use
to banking. See id. In their motion to dismiss. Respondents
asserted evidence which they claim shows that those
ordinances apply only to businesses which consent to do
business with the Band. This assertion was a patent ploy to
avoid judicial resolution of the boundary dispute. Band
officials did not dispute that the Band’s ordinances and
letters apply on their face to the Bank where the Band claims
power to regulate — the former 1855 reservation. (App. 424-
426: see also App. 408. 412. 417).
Respondents also did not dispute that these ordinances
apply to the Bank. Nor could they do so, for Molly Big Bear.
who is in charge of the Band's licensing program. established
the program applies throughout the former 1855 reservation
and embraces anyone who does business with Band
members, including banks.
Q: “What is your understanding of the description of
within the boundaries of tribal territories? . . . *
A: “The 1855 boundaries.”
(App. 422).
10
Q: “So is it fair to say that under section 101 [18
MLBSA § 101] the corporate commission has the power to
license anyone who wishes to provide goods or services to
any member of the Mille Lacs Band?”
A: “¥e.
(App. 426: see also App. 423).
~ “This sentence [of 18 MSBSA § 101] makes
reference to goods or services of any material value, doesn’t
it?”
A: “Ye."
* * *
Q: “Would you agree that banking services are covered
by the word services in [the first sentence of 18 MLBSA
§ 101)?”
A: “ye.
Q: “Is there any exemption from licensing for banks in
this chapter two, the licensing provisions?”
A: “No.”
(App. 425).
____ The Band has also advanced its legal interpretation of the
1863 and 1864 Treaties to convince various federal agencies
of the continued existence of the 1855 reservation. (App.
413-416). For example. EPA has granted the Band
treatment-as-state status over the entire 1855 boundary area,
which means the Band can enforce federal environmental
rules within the Bank’s market area. Jd. The Band has also
convinced the United States Department of the Interior that
the former reservation still exists (App. 352-359) and that the
Band retains taxation authority over non-members (App.
324-325).
SE ier nlibinabinke
1]
This case ripened into a lawsuit after the County — in
opposition to the Band’s contention — refused to recognize
the existence of the former 1855 reservation boundaries and
instead brought an action for declaratory relief. The relief
the County sought was a declaration that the boundaries
established by the former 1855 reservation had been
disestablished.
The Bank intervened in the County’s case because its
settled expectations were that the Mille Lacs reservation
created by the 1855 Treaty with the Chippewa has long been
disestablished. Founded in 1897, the Bank is a small.
independent business of the Allen family. (57a). The Bank
is a federally chartered bank based in Milaca, Minnesota, the
county seat of Mille Lacs County. /d The Bank has a
branch in Isle, Minnesota, in Isle Harbor Township. Mille
Lacs County. /d. The Isle branch represents approximately
one-third of the Bank’s loans and deposits. (58a). For
example, the Isle branch of the Bank has 189 loans totaling
approximately $11.000,000 secured by real estate. dd A
major portion of these Isle branch loans are secured by real
estate located in Kathio. South Harbor and Isle Harbor
Townships, id., the townships that once comprised the 1855
reservation.
At a minimum, the Bank wanted the boundary issue
determined, for the resulting uncertainty has had an impact
on the Bank’s assets. Indeed, the specter of Band regulation
poses significant operational concerns to the Bank. because
the Band in its statutes has asserted enforcement authority
over federal banking laws and UCC Article Nine secured
creditor remedies. (67a-68a). For example. one such
provision states:
Any creditor be they a person, company, corporation.
association, partnership, cooperative. utility and any
other public or private commercial entity. who absent
a lawtul order from the Court of Central Jurisdiction.
12
who shall attempt to remove or disconnect any
property from any person under the jurisdiction of the
Band. shall be deemed to have committed a property
trespass offense in violation of 2 MLBSA § 304(m)
and the Solicitor General shall initiate civil action
against said person seeking their removal and
exclusion from lands under the jurisdiction of the
Non-Removable Mille Lacs Band of Chippewa
Indians for a period not to exceed 180 days.
24 MLBSA 8 3309 (53a).
Moreover. because the Bank has Band members as
customers, under Band statutes, any Band member doing
business with the Bank could take the Bank to tribal court for
alleged violations of the Truth in Lending Act, for example,
or violations of Article Nine of the U.C.C. 24 MLBSA §8§ 2.
3. 4. 5. 6. 3309, 3501-3510 (1996) (Sla-56a): see also 5
MLBSA 8§ 111. 113 (1996) (43a-44a; App. 382).
Nor is the Band’s assertion of regulatory authority
limited to commercial activities. Its environmental statute
regulates activities within the former reservation. (45a-47a:;
App. 208-293). Unsurprisingly, the boundary dispute is now
a realtor disclosure item for homes sold within the former
reservation. (App. 371: see also App. 387).? The Band has
also told homeowners in the disputed area they are subject to
the Band's tribal authority. (76a-82a).
° This real estate disclosure is given pursuant to Minn. R.
2805.1400, which states "[I]icensees shall disclose to any
prospective purchaser all material facts pertaining to the
property. of which the licensee is aware, which could
adversely and significantly affect an ordinary purchaser's use
or enjoyment of the property, or any intended use of the
property of which the licensee is aware." Minn. R.
2805.1400. subp. 3 (2003) (emphasis added).
13
Recognizing the, concrete stake the Bank has in
determining the status of the former reservation boundaries.
Magistrate Judge Erickson issued an order allowing the Bank
to intervene. (83a-87a). Magistrate Erickson relied heavily
on the Eighth Circuit’s decision in Mille Lacs Band of
Chippewa Indians vy. Minnesota, 989 F.2d 994 (8th Cir.
1993), which the Magistrate found controlling. (86a).
Magistrate Erickson noted that the intervenor landowners in
the Mille Lacs Band decision were allowed to intervene
because their property values could be adversely affected if
the Mille Lacs Band succeeded in acquiring treaty hunting
and fishing rights over that region. Jd. Hence, Magistrate
Erickson concluded that the Mille Lacs Band decision
compelled the Bank’s intervention because “FNB not only
owns property within the ‘former’ Reservation boundaries.
but also has a legal interest, through loans, in a large amount
of the property that could be affected by the disposition of
this litigation.” Jd.
The district court, however, determined the dispute
between the Bank and Respondents over the Band’s attempt
to resurrect the former 1855 reservation and to enact
regulations facially applicable to the Bank did not present a
justiciable controversy. (15a-27a). Although the district
court acknowledged that “[i]f the Band’s tribal authority
covers the full extent of the 1855 reservation, it might well
alter private and public sector relationships in the Mille Lacs
area,” (26a), the district court determined that absent actual
enforcement of the Band's statutes, the Bank lacked standing
and the issue was not ripe. (15a-27a).
The district court reached this conclusion on the mistaken
premise that the Bank is generally foreclosed from
maintaining a declaratory action in the absence of
infringement on the right to free speech or some other
fundamental right. (17a). The district court also side-
stepped the Bank’s evidence of actual harm to the value of its
business, its property and its security interests. (21a-22a).
14
Instead, the district court substituted its own judgment in
place of the factual record and concluded that property values
in the Mille Lacs region had been unaffected by the Band’s
reassertion of reservation boundaries. (22a).
Agreeing with the district court, the Eighth Circuit
determined that the Bank’s argument was mere speculation
and that the Bank failed to establish proof of injury sufficient
to withstand summary judgment. (5a-6a). The court did so
despite record evidence establishing present harm to the
Bank and its business from the controversy. irrespective of
whether the Band had acted to enforce its ordinances against
the Bank. /d. This evidence included. among other things.
an affidavit from the Bank’s Chairman stating “[t]he Band’s
assertion of regulatory authority over property the Bank owns
or on which it holds a security interest will depress the
market value of that property.” (58a). Additionally. the
Bank’s Chairman stated in a separate affrdavit:
One important aspect of extending credit is the
Bank's ability to perfect its security interest in loan
collateral. The Bank’s ability to perfect security
interests and to exercise creditor remedies will be
directly affected by the existence or nonexistence of
the disputed reservation boundaries. The Bank is
concerned that it might be subject to tribal court
jurisdiction for lending activities with members of the
Mille Lacs Band. The Bank does not want to be
subject to tribal court jurisdiction, and the Bank does
not want to be deprived of any rights or remedies it is
granted under Minnesota’s version of the Uniform
Commercial Code. If the Bank is deemed to be under
tribal court jurisdiction, its ability to enforce its rights
as a secured creditor will be impacted regardless of
whether the borrower is a Bandmember or not.
(67a-68a). The Bank’s Chairman further expressed concern
about the federal laws that regulate its day-to-day operations
15
and the need to “know with certainty where and how these
laws will be enforced and applied to manage its banking
activities.” (68a).
Despite this and other evidence, the Eighth Circuit
apparently afforded the district court's dismissal “unique and
substantial discretion.” (5a). Discretion. however. had no
place in review of this case because the abuse of discretion
standard of review only applies to review of a district court's
actual exercise of discretion under the declaratory judgment
act. Federal Express Corp. v. Air Line Pilots Ass'n, 67 F.3d
961, 963-64 and n.3 (D.C. Cir. 1995). Here, the district court
did not dismiss the case based on discretionary or prudential
considerations, but made a legal ruling that neither the Bank
nor the County had standing. Similarly, the Eighth Circuit
failed to cite any prudential consideration warranting
dismissal. Notwithstanding its reference to discretion. the
Eighth Circuit’s decision rested solely on a finding that the
Bank failed to adduce sufficient evidence of injury, i.e., there
was no standing. (5a-6a).
REASONS FOR GRANTING THE PETITION
THIS CASE PRESENTS THE IMPORTANT
FEDERAL QUESTION OF WHEN A NON-INDIAN
PARTY MAY CHALLENGE THE EXISTENCE OF
TRIBAL POWER TO REGULATE NON-INDIANS
The question whether the Mille Lacs Band has a
reservation within which it has authority to regulate
businesses activities is ready to be decided. The issue turns
on the effect of specific treaties, which either did or did not
disestablish the 1855 Mille Lacs Reservation. The issue
depends on historical fact, not some future event. Nothing
more needs to be done to define this dispute. As a business
within the disputed area and directly affected by the Band's
present assertion of legislative power, the Bank has a
sufficiently concrete interest in the dispute to have standing
to obtain a judicial resolution of whether the Bank is
16
answerable to Band authority for the Bank’s activities within
the disputed area.
This Court has consistently held that cases requiring no
further factual development are particularly amenable to
review. Duke Power Co. vy. Carolina Envil. Study Group.
Inc.. 438 U.S. 59, 81-82 (1978) (case ripe if further factual
development would not “significantly advance [the Court's]
ability to deal with the legal issues presented nor aid [the
Court in its] resolution.”):; Pacific Gas & Elec. Co. v. State
Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190,
201 (1983). Here. neither the district court nor the Eighth
Circuit disputed that the issue is primarily legal. nor did those
courts identify any further factual development necessary to
resolve the reservation question. Indeed, the language ceding
the Mille Lacs Reservation in the 1863 and 1864 Treaties is
unambiguous. Likewise, it is undisputed that the Nelson Act
accomplished the elimination of the Mille Lacs Band’s
vestigial and provisional right to remain. Nothing in today’s
factual record can change those key facts.
In the context of boundary disputes. declaratory judgment
actions are especially appropriate because the court need do
nothing more than apply existing relevant case law to
specific treaty language. This Court and other courts have
exercised jurisdiction over declaratory judgments in
boundary disputes where the relief sought focused on the
Status of reservation boundaries. See, e.g. Rosebud Sioux
Tribe v. Kneip, 375 F. Supp. 1065, 1066 (D.S.D. 1974), aff'd.
S21 F.2d 87 (8th Cir. 1975), aff'd. 430 U.S. 584 (1977)
(plaintiffs sought a declaration that “three specific acts of
Congress did not diminish the Rosebud Sioux Reservation or
alter its boundaries from those defined in the act of March 2.
1889.°): City of New Town, N.D. v. United States, 454 F.2d
121. 122 (8th Cir. 1972) (declaratory judgment procedure
used to determine whether the reservation boundaries
continued to exist).
17
This case, like other boundary disputes, is amenable to
judicial resolution precisely because no further factual
development is necessary to crystallize the legal issue for
determination. As in Rosebud and New Town, there is a real.
concrete dispute between the parties. In Rosebud this Court
affirmed a declaratory ruling that addressed only the issue of
Whether the boundaries of a former reservation remained
intact. 430 U.S. at 585 (“[i]n June 1972 the Rosebud Sioux
Tribe sued in the United States District Court for the District
of South Dakota to obtain a declaratory judgment that the
original boundaries of their reservation, as defined in the Act
of March 2, 1889, 25 Stat. 888, had not been diminished by
three subsequent Acts of Congress .. .”). Rosebud did not
involve a member who had been arrested, charged civilly, or
otherwise subjected to state jurisdiction. /d. Rather, the tribe
and state had a disagreement over the existence of the
reservation boundaries and the tribe brought the case for
declaratory relief about the status of the reservation
boundaries. /d.
The issue here is on all fours with Rosebud. The Bank
and County contend that the reservation established by the
1855 Treaty has been disestablished. Band officials maintain
that the boundaries of the reservation created by the 1855
Treaty continue in legal effect: they also claim power to
regulate activities within the boundaries of the reservation
created by the 1855 Treaty. The federal courts. including this
Court. did not hesitate to exercise jurisdiction in Rosebud.
and there should have been no hesitation here.*
. Similarly, in /daho v. Coeur d'Alene Tribe of Idaho, 521
U.S. 261 (1997), although this Court dismissed the case on
Eleventh Amendment immunity grounds, this Court did not
question the Article III standing of a tribe to seek declaratory
relief about the status of reservation boundaries and the effect
on title to Lake Coeur d'Alene.
18
In New Town the district court granted declaratory relief
and the Eighth Circuit affirmed the declaratory relief where
the sole issue was the status of a reservation boundary. 454
F.2d at 123. As in Rosebud, the New Town case did not
involve any specific controversy or dispute other than
whether the reservation continued to exist. /d. Although one
tribal member had been arrested some eight years prior to the
time the New Town case was brought, the real catalyst for the
action was the issuance of an opinion from the Solicitor for
the Department of the Interior which “concluded that the
1910 Act had not altered the boundaries of the reservation . .
Id. That is the exact situation here. The Mille Lacs
Band has convinced the Solicitor of the Department of the
Interior to issue an opinion that the 1855 reservation
boundaries remain intact. The Band has also convinced the
EPA to grant it treatment as a state status on the grounds that
the 1855 reservation still exists and the Mille Lacs Band.
therefore. retains jurisdiction over that region.
The case of South Dakota vy. Yankton Sioux Tribe, 522
U.S. 329 (1998) is also instructive. There, tribal, federal and
state officials had a “disagree[ment] as to the environmental
regulations applicable to a proposed waste site.” /d. at 340.
Although the tribe initially sought injunctive relief, the
injunction issue was abandoned on appeal, and the sole issue
presented for review was the status of the reservation
boundaries. /d. at 341. As in Rosebud. this Court did not
hesitate to grant certiorari to resolve the reservation boundary
question. /d. at 341-42: accord Lower Brule Sioux Tribe v.
State of South Dakota, 711 F.2d 809, 812 (8th Cir. 1983)
(exercising jurisdiction over an action involving “a dispute
between the State of South Dakota and the Lower Brule
Sioux Tribe over which of them will regulate hunting and
fishing activity at the Fort Randall and Big Bend dam and
reservoir projects.”). Like the relief sough in the }ankton
Sioux Tribe case. the Bank here seeks relief to determine who
en
19
has jurisdiction within the disputed region, which turns on
the status of the reservation boundaries.
These cases illustrate that there need not be. as the district
court and Eighth Circuit would require here, actual
enforcement of tribal regulations before a party may
challenge a tribe’s assertion of jurisdiction. When the
dispute crystallizes into a disagreement over the existence of
reservation boundaries and the tribe’s authority over the
reservation, the federal courts have jurisdiction to resolve the
dispute.
Indeed, the federal circuit courts have consistently
recognized that a party may maintain a pre-enforcement
action when a tribe asserts regulatory authority over the
party. For example. in Baker Electric Co-op, Inc. v. Chaske.
28 F.3d 1466 (8th Cir. 1994), the Devils Lake Sioux Tribe
enacted a tribal utilities code, asserting regulatory authority
within the historic boundaries of the Devils Lake Sioux
Indian Reservation. /d. at 1470. In response to~ the
enactment of the utilities code, Baker Electric Cooperative
and Sheyenne Valley Cooperative brought suit against
members of the tribal utilities commission — seeking
declaratory and injunctive relief. /d. The Devils Lake Band
moved for dismissal on the basis that the tribal utilities code
had never been enforced. /d. at 1471.
The court squarely rejected the argument that pre-
enforcement suits regarding tribal ordinances are improper:
we reject the Tribe’s contention that officer suits are
inappropriate where the officers have not acted. The
RECs seek to enjoin the members of the Tribal
Utilities Commission from enforcing the Tribal
Utilities Code, and therefore their suits are squarely
of the type recognized and approved of by this court
in Northern States Power.
20
Id. (citation omitted). The Bank's circumstances and the
relief sought here are indistinguishable from the circum-
stances and relief the utilities sought in Baker Electric.
Similarly. in Northern States Power Co. v. Prairie Island
Mdewakanton Sioux Indian Cmty, 991 F.2d 458 (8th Cir.
1993). the utility brought a pre-enforcement action to enjoin
a tribal’ ordinance that on its face regulated shipments of
nuclear materials over reservation lands. /d. at 459-60. In
the district court the tribe argued that the court should not
enter injunctive relief because the tribe did not really intend
to enforce its ordinance according to its terms and was
willing to enter into a cooperative agreement with the utility.
Northern States Power Co. v. Prairie Island Mdewakanton
Sioux Indian Cmty. 781 F. Supp. 612, 616 (D. Minn. 1991).
Thus there was really no harm. /d.
The district court flatly rejected this argument: “[s]o long
as the Tribal Council has authority to enforce the ordinance
‘to the letter.” the court must assume the Tribal Council will
do so and analyze the effect of the ordinance as written.” Jd.
The Eighth Circuit affirmed the district court’s conclusion on
appeal. Northern States Power, 991 F.2d at 463 (“[t]he
district court simply assumed that the tribe would enforce the
ordinance as written and refused to speculate that the tribe
and NSP might someday enter into negotiations and agree
upon a less burdensome regulatory scheme.”): see also
Wisconsin v. Baker, 698 F.2d 1323. 1326 (7th Cir. 1983)
(declaratory judgment action initiated against tribal officials
only three days after tribal ordinance enacted): Tenneco Oil
Co. v. Sac & Fox Tribe of Indians of Okla., 725 F.2d 572.
574-75 (10th Cir. 1984) (allowing pre-enforcement challenge
to tribal ordinances).
The vague assurances made by Band officials in this case
are no different than the vague assurance made by the tribe in
Northern States Power. Here, Band officials argued, and the
district court agreed. that because Band officials only intend
21
to enforce their statutes to the extent allowed by federal law
and because federal law restricts a tribe’s ability to enforce
statutes against non-members, the Bank had really suffered
no harm in the absence of actual enforcement. (18a & n.8).
If, however, the Bank knew for certain that it was not located
within a reservation, the reach of tribal authority over the
Bank would not be in question. Cf Atkinson Trading Co. v.
Shirley, 532 U.S. 645, 653 (2001) (“An Indian tribe's
sovereign power to tax — whatever its derivation — reaches no
further than tribal land.”); Hornell Brewing Co. v. Rosebud
—Stoux Tribal Court, 133 F.3d 1087, 1091-92 (8th Cir. 1998)
(no tribal jurisdiction exists outside the boundaries of a
reservation). The Band has asserted the reservation exists
and has enacted a panoply of laws to regulate business
activity within the former reservation, including banking.
The Eighth Circuit’s decision here conflicts with Baker
Electric, Northern States Power, Wisconsin v. Baker and
Tenneco Oil, which the court simply ignored. Strikingly, the
Eighth Circuit also ignored its own decision in Mille Lacs
Band of Chippewa Indians v. Minnesota, 989 F.2d 994 (8th
Cir. 1993). Mille Lacs Band involved whether the Band had
rights under an 1837 treaty to hunt and fish in an area within
Minnesota that included Mille Lacs County. /d. at 996. On
appeal from the district court’s denial of intervention, the
Eighth Circuit held that because the landowner intervenors
had: interests in property located within the area where the
Band was asserting hunting and fishing rights and because
those property interests could be adversely affected by the
Band’s actions, the intervenors had a legally _protectable
interest. /d. at 998.* In reversing the denial of intervention,
: Tellingly, the federal magistrate in this case recognized that
the Mille Lacs decision was directly on point and concluded
that that decision compelled a ruling allowing the Bank to
intervene. (86a).
22
the Eighth Circuit observed “the result of the litigation also
may affect the proposed intervenors’ property values.” /d. at
998. That observation, made in granting the property owners
party status. certainly supports the Bank's standing here.
where more concrete harm was shown. More startling is the
lower court's complete failure to address its own precedent.
For the Bank. whether the 1855 reservation continues to
exist today as a juridical entity within which the Mille Lacs
Band has broad regulatory authority is no theoretical issue or
law school faculty debate. Resolution of the reservation
boundaries will have meaningful effect because a decision on
the merits will remove any uncertainty over whether there is
still a 61.000-acre reservation in the middle of Minnesota
Where the Band has any authority to act. The Bank has taken
out mortgages within the former reservation. It loans money
to customers within that area and its customers include Band
members.
On their face. Band regulations currently apply to the
Bank. and any Band member that has a credit dispute could
haul the Bank into tribal court today if the 1855 reservation
continues to exist. For example, the Band has asserted
jurisdiction over TILA claims by incorporating 15 U.S.C.
§ 1601 ef seg. into 24 MLBSA § 5 (5la-52a) and asserting
jurisdiction over all such claims “located on lands subject to
the jurisdiction of the Non-Removable Mille Lacs Band of
Chippewa Indians.” 24 MLBSA § 2 (5la). The Band has
enacted a similar provision that purports to grant the Mille
Lacs Band Tribal Court exclusive jurisdiction over claims
arising under the Uniform Commercial Code and Minnesota
consumer protection laws on lands subject to the jurisdiction
of the Band. 24 MLBSA 8§ 2. 4, 5 and 6 (S5la-52a). If valid.
the Bank's right to enforce its Article Nine remedies is
presently circumscribed. See 24 MLBSA § 3309 (requiring
tribal court order to repossess collateral) (53a). This alone
should be sufficient to confer standing on the Bank to
determine whether or not the reservation continues to exist.
23
If it does, the Bank may be answerable to tribal court and
needs to plan accordingly.
The Band’s patent assertion of authority to regulate
businesses within the claimed reservation puts the Bank in a
tenuous position. Exactly how tenuous is shown by
Williams-Willis v. Carmel Financial Corp., 139 F. Supp. 2d
773 (S.D. Miss. 2001). In Williams-Willis, the plaintiff
brought a Truth In Lending Act (TILA), 15 U.S.C. § 1601 e7
seq., Claim against a bank in tribal court. /d. at 774-75. The
bank removed the case to federal court based on the federal
question raised. In granting the plaintiff's motion to
remand, the court held the action non-removable from tribal
court, despite the federal TILA claim being asserted. /d. at
775-76.
The Bank also faces an issue over how it can enforce any
security interests it might have with Band members. In
Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587 (9th
Cir. 1983), a secured creditor attempted peaceable
repossession of its collateral within the Navajo reservation.
Id. at 590-91. The tribal court granted damages to the debtor
on the ground that its tribal code barred such self help, an
action two federal courts affirmed. /d. at 591. These cases
demonstrate how reservation boundaries affect the Bank.
Other consequences flow from reservation status. For
example, the Clean Water Act, 33 U.S.C. § 1251 ef seg.. has
been read to embrace tribal jurisdiction over non-members.
33 U.S.C. § 1377. Treatment as a state status is dependent
on reservation status because 33 U.S.C. § 1377(h)(1) defines
“federal Indian reservation” identically to “Indian Country”
in 18 U.S.C. § 1151. Likewise, the National Historic
Preservation Act, 16 U.S.C. § 470(a) et seg.. provides that a
tribe may be able to assume “all or any part of the functions
of a State Historic Preservation Officer in accordance with
subsections (b)(2) and (b)(3) of this section, with respect to
tribal lands, as such responsibilities may be modified for
tribal programs through regulations issued by the Secretary . .
24
16 U.S.C. § 470a (d)\(1(C)(2). “Tribal lands.” of
course. are defined as “all lands within the exterior
boundaries of any Indian reservation.” 16 U.S.C.
470w(14)(a).
These jurisdictional grants are not merely hypothetical.
The Band is asserting power over the Bank; it has also
attempted to control the actions of private landowners solely
because the land was within the former reservation. (76a-
82a). Who controls land use affects land values. If the 1855
reservation exists. the Band can avoid county zoning
entirely.” This increases the risk to the Bank that its
collateral will be unexpectedly devalued. The issue of
whether the 1855 reservation still exists could hardly be more
concretely defined.
The district court and the Eighth Circuit skirted the issue
by accepting the Band’s argument that the Bank has no
standing due to this Court’s constraints on tribal authority
over nonmembers. Yet it is no secret that numerous tribes
are currently working to overturn this Court’s decisions
limiting tribal authority over nonmembers. See, e.g.. Alex
Tallchief Skibine. The Dialogic of Federalism in Federal
Indian Law and the Rehnquist Court: The Need for
Coherence and Integration, 8 TEX. F. ON C.L. & C.R. 1, 2
(Spring 2003). In fact. recently in United States v. Lara, 124
S. Ct. 1628 (2004), this Court recognized Congress's power
to overturn restrictions on tribal authority over nonmembers
and affirmed tribal criminal jurisdiction over nonmember
Indians. /d. at 1633.
Rather than acknowledge the reality of what is going on
in this case. the district court and Eighth Circuit determined
that the Bank failed to establish proof of injury sufficient to
* Indeed. the Band disputes that it is subject to County zoning
laws. (70a). The Band also claims it is immune from
County taxation and pays its taxes only under protest (69a).
withstand summary judgment. Those courts did so despite
evidence establishing present harm to the Bank and its
business from the controversy, irrespective of whether the
Band had acted to enforce its ordinances against the Bank.
The Band's assertion of regulatory authority over property
which the Bank owns or on which it holds a security interest
should be sufficient to establish its standing to contest that
potential jurisdiction. Moreover, the Band's regulatory
scheme impacts the Bank’s livelihood. (58a-59a; 67a-68a).
Indeed, the specter of Band regulation poses significant
operational concerns to the Bank, because the Band in its
Statutes has asserted enforcement authority over federal
banking laws and U.C.C. Article Nine remedies. (67a-68a).
Furthermore, because the Bank has Band members as
customers, under Band statutes, any Band member doing
business with the Bank could take the Bank to tribal court for
alleged violations of the Truth in Lending Act, for example.
or violations of Article Nine of the U.C.C.
More importantly, however, the district court and the
Eighth Circuit failed to recognize the unique nature of an
action like this. For more than a century, nonmember
residents of Mille Lacs County considered the boundaries of
the former 1855 reservation disestablished. Due to the
Band's reassertion of juridical and sovereign authority over
this region, residents and businesses within a 61,000 acre
area are left in the precarious position of not knowing
whether they live within an Indian reservation. Aside from
the financial impact to the Bank and its security interests, the
Band's assertion of juridical and sovereign authority in itself
is injury enough to confer Article III standing.
This is also an issue that impacts nonmembers and
members alike on a daily basis. Nonmembers have the right
to know where they stand, and the federal courts should not
hesitate to issue a declaratory ruling in a case like this. In the
words of Justice Souter, “[t]he ability of nonmembers to
know where tribal jurisdiction begins and ends, it should be
26
ss
stressed. is a matter of real. practical consequence... .
Nevada vy. Hicks, 533 U.S. 353, 383 (2001) (Souter, J.
concurring) (emphasis added).
Where. as here. a tribe attempts to resurrect long
disestablished reservation boundaries. nonmembers living
and doing business within those boundaries should have
access to the federal courts to obtain declaratory relief
concerning the tribal claim. The situation here is similar to
the situation in Oneida Indian Nation of N.Y. v. City of
Sherrill, N.Y., 337 F.3d 139 (2d Cir. 2003), cert. granted, 124
S. Ct. 2904 (2004). There. this Court granted certiorari to
resolve the status of a claimed reservation. /d. This is of
little surprise as the Oneida Tribe there is attempting rewrite
history to reclaim a 300.000 acre reservation in Central New
York /d. Here. the Mille Lacs Band is attempting to rewrite
history and reclaim a 61.000 acre reservation in the heart of
Minnesota.
This Court should thus grant certiorari in this case to
establish that what the Mille Lacs Band has done here is
sufficient to confer Article III jurisdiction on the federal
courts to resolve the dispute. The Mille Lacs Band has laid
claim to and asserted jurisdiction over a 61.000 acre
reservation in which the Bank is located, and the Bank seeks
redress to establish that it is not subject to Band regulation by
virtue of being within a reservation. Previously this Court
and other federal circuit courts had addressed reservation
boundary disputes when the issue was crystallized and
concrete, as it is here. Granting certiorari will al'ow the
Court to clarify that its precedent provides federal
jurisdiction over a reservation boundary dispute brought by a
litigant with a well defined interest in the outcome. Which
sovereigns can regulate a business is an issue of such
importance that those private businesses affected should not
have to wait for a tribal court summons. The Bank should
have the right now to challenge the Band's attempt to “take it
back.”
27
CONCLUSION
~ ( . *¢ > . ~
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
SCOTT GREGORY KNUDSON
Counsel of Record
BRYANT D. TCHIDA
BRIGGS AND MORGAN, P.A.
332 Minnesota Street
Suite 2200
Saint Paul, MN 55101
(651) 808-6600
August 17, 2004 Counsel for Petitioner
First National Bank of Milaca
APPENDICES
la
APPENDIX A
UNITED STATES COURT OF APPEALS
EIGHTH CIRCUIT
[Filed: March 9, 2004.]
No. 03-2527, 03-2537.
COUNTY OF MILLE LACS,
Plaintiff-—Appellant,
FIRST NATIONAL BANK, OF MILACA,
Intervenor Plaintiff,
V.
MELANIE BENJAMIN, individually and officially as Chief
Executive, Mille Lacs Band of Chippewa Indians; HERB
WEYAUS, individually and officially as Secretary/Trea-
surer, Mille Lacs Band of Chippewa Indians; SANDRA
BLAKE, individually and officially as District Represen-
tative, Mille Lacs Band of Chippewa Indians; MARVIN
BRUNEAU, individually and officially as District Represen-
tative, Mille Lacs Band of Chippewa Indians; HARRY
DAVIS, individually and officially as District Represen-
tative, Mille Lacs Band of Chippewa Indians,
Defendants—Appellees,
2a
STATE OF MINNESOTA; STATE OF SOUTH DAKOTA,
Amicus on Behalf of Appellant.
COUNTY OF MILLE LACS,
Plaintiff,
FIRST NATIONAL BANK, of MILACA,
Intervenor Plaintiff—Appellant,
V.
MELANIE BENJAMIN, individually and officially as Chief
Executive, Mille Lacs Band of Chippewa Indians; HERB
WEYAUS, individually and officially as Secretary/Trea-
surer, Mille Lacs Band of Chippewa Indians; SANDRA
BLAKE, individually and officially as District Represen-
tative, Mille Lacs Band of Chippewa Indians; MARVIN
BRUNEAU, individually and officially as District Represen-
tative, Mille Lacs Band of Chippewa Indians; HARRY
DAVIS, individually and officially as District Represen-
tative, Mille Lacs Band of Chippewa Indians,
Defendants—Appellees,
STATE OF MINNESOTA, Amicus on Behalf of Appellant.
Rehearing and Rehearing En Banc Denied May 19, 2004.
Before RILEY, BOWMAN and SMITH, Circuit Judges.
SMITH, Circuit Judge.
County of Mille Lacs (“County”) and the First National
Bank of Milaca (“Bank”), appeal from an order of the district
court dismissing their action seeking to determine the legal
status of the boundaries of the Mille Lacs Band of Chippewa
Indians (“Band”) reservation. We affirm.
Tar nef, Sey Oe
3a
I.
The facts for this case extend back nearly 170 years. The
district court opinion described them well, and we will not
recapitulate them all. County of Mille Lacs v. Benjamin, 262
F.Supp.2d 990 (D.Minn.2003). Relevant to this appeal, the
appellants brought suit in federal court seeking declaratory
relief regarding the boundary status of the Mille Lacs Indian
Reservation. The County and the Bank contend that the
reservation’s boundary status is a critical issue to many
residents in Mille Lacs County. The Bank alleges that the
reservation’s boundary status must be defined because the
Band’s assertion of regulatory authority over parts of the
reservation’s territory has had a negative effect on the value
of the Bank’s security interests. In the Bank’s view, the
Band’s allegations of ownership and jurisdiction to parts of
the reservation have harmed the Bank’s economic interest.
The County contends that the uncertainty of the reser-
vation’s boundaries is detrimental to the County’s ability to
enforce laws and building and environmental permits that are
directly dependent on the reservation’s boundaries.
At the close of initial discovery, the Band moved for
summary judgment on the following grounds: standing, ripe-
ness, sovereign immunity, and indispensable party. The
district court granted the Band’s motion after determining that
neither the Bank nor the County had standing to question the
legal status of the reservation’s boundaries. Also, the court
determined that the present dispute was not ripe for adjudi-
cation. On May 7, 2003, the district court, in granting the
Band’s motion for summary judgment, dismissed the claim
with prejudice. This appeal followed.
On appeal, the County and the Bank argue that they have
suffered both threatened injury and present harms to their
ability to plan and conduct business. Specifically, they allege
numerous harms, including: greater regulatory oversight by
4a
the EPA, limits on county and state regulatory authority, and
expansion of the reach of tribal authority. Lastly, the appell-
ants contend that the district court erred in dismissing the
suit with prejudice because the dismissal was based on
jurisdictional grounds. We consider each argument in turn.
II.
We review a district court’s grant of summary judgment
based on standing de novo. Oti Kaga, Inc. v. S. Dakota Hous.
Dev. Auth., 342 F.3d 871, 877 (8th Cir.2003) (citing Nat'l.
Fed’n. of the Blind of Mo. v. Cross, 184 F.3d 973, 979 (8th
Cir.1999)). Summary judgment is proper if there is no gen-
uine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
When ruling on a summary judgment motion, a court must
view the evidence “in the light most favorable to the
nonmoving party.” Oti Kaga, Inc., 342 F.3d at 877 (citing
Dush v. Appleton Elec. Co., 124 F.3d 957, 962-63 (8th
Cir.1997)).
A. Standing
Federal courts only have jurisdiction to hear actual cases
and controversies. U.S. Const. art. III, § 2, cl. 1. “[F]ederal
courts are without power to decide questions that cannot
affect the rights of litigants in the case before them.” North
Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d
413 (1971). The controversy must be definite and concrete,
touching the legal relations of parties having adverse legal
interests. Nat’l Fed’n of the Blind of Mo., 184 F.3d at 979
(emphasis added). A party must satisfy constitutional
standing requirements for its case to proceed to adjudication.
Id. A party has standing to bring a claim if it has suffered
some actual or threatened injury.
“The controversy requirement of the Declaratory Judgment
Act is synonymous with that of Article III of the Consti-
Sa
tution.” Carson v. Pierce, 719 F.2d 931, 933 (8th Cir.1983)
(citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40,
57 S.Ct. 461, 81 L.Ed. 617 (1937); Cass County v. United
States, 570 F.2d 737, 739 (8th Cir.1978)). In order to
demonstrate standing, a plaintiff must “demonstrate that he
has suffered [an] injury in fact, that the injury is fairly
traceable to the actions of the defendant, and that the injury
will likely be redressed by a favorable decision.” Bennett v.
Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281
(1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992);
*464Valley Forge Christian Coll. v. Am. United for Sepa-
ration of Church and State, Inc., 454 U.S. 464, 471-472, 102
S.Ct. 752, 70 L.Ed.2d 700 (1982) (internal citations omitted)).
“The essential distinction between a declaratory judgment
action and an action seeking other relief is that in the former
no actual wrong need have been committed or loss have
occurred in order to sustain the action.” Horne v. Firemen’s
Ret. Sys. of St. Louis, 69 F.3d 233, 236 (8th Cir.1995)
(quoting United States v. Fisher-Otis Co., 496 F.2d 1146,
1151 (10th Cir.1974)). The County and the Bank argue that
they have standing because they have suffered threatened
injury caused by the Band’s alleged ownership of certain
parts of the Mille Lacs Indian Reservation. We disagree.
We give a district court’s decision to dismiss a declaratory-
judgment action unique and substantial discretion. See
Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86
L.Ed. 1620 (1942); Horne v. Firemen’s Retirement System
of St. Louis, 69 F.3d 233, 236-37 (8th Cir.1995). Here,
the district court correctly concluded that the appellants
lacked standing.
The Bank alleged in its complaint that the Band’s assertion
of regulatory authority over property in which the Bank holds
a security interest reduced the value of its collateral.
Specifically, the Bank alleges that, if imposed, the Band’s
6a
enactments could impact federal banking laws and the
Minnesota Uniform Commercial Code thereby directly
affecting the Bank’s operations. Also, the Bank noted that the
Band owns a nearby financial institution that competes
directly with the Bank. The Bank provided affidavits of
lenders expressing concern whether clear title to their
property can be obtained in the disputed area. The Bank also
provided letters from residents stating that they would not
have purchased property within the boundaries of a
reservation and that they would not have built a home within
the boundaries of a reservation. These statements of concern,
however, do not establish an injury in fact. At best, they
reflect speculative harms based upon the assumed future
intent of the Band.
The County has failed to establish standing. We agree with
the Band that the County has been unable to point to any
definite controversy that exists from the Band’s purported
expansion of tribal jurisdiction over the disputed portion of
the reservation. The County presented no evidence that its
ability to enforce state or local law on the reservation has
been usurped or even affected by the Band’s alleged
intentions. In order to demonstrate standing, a plaintiff must
demonstrate that he has suffered an injury or a threatened
injury. Neither the County nor the Bank has shown that it
is in immediate danger of sustaining threatened injury
traceable to an action of the Band. Therefore, they are unable
to demonstrate standing. Furthermore, because there is no
actual “case or controversy” before our Court, the ripeness
issue is moot.
B. Dismissal
The district court issued its summary judgment with
prejudice. A district court is generally barred from dismissing
a case with prejudice if it concludes subject matter
jurisdiction is absent. Ahmed v. United States, 147 F.3d 791,
7a
797 (8th Cir.1998) (citing Johnson vy. Boyd-Richardson Co.,
650 F.2d 147, 148 (8th Cir.1981) (“Under Rule 41(b) of the
Federal Rules of Civil Procedure, dismissal for lack of
jurisdiction is not an adjudication on the merits and thus such
a dismissal should be without prejudice”)); Charchenko v.
City of Stillwater, 47 F.3d 981, 985 (8th Cir.1995). Because
the district *465 court dismissed solely on jurisdictional
grounds, dismissal with prejudice is premature. We reverse
this portion of the judgment and direct that the district court
enter judgment without prejudice.
lil,
In conclusion, we affirm the district court’s dismissal for
lack of standing. However, we reverse the district court’s
decision to dismiss the complaint with prejudice. The
appellant’s motion to supplement the record is denied.
361 F.3d 460
Briefs and Other Related Documents (Back to top)
2003 WL 23096741 (Appellate Brief) Reply Brief of
Plaintiff-Appellant County of Mille Lacs (Oct. 17,
2003)Original Image of this Document (PDF)
e 03-2537 Docket)
(Jun. 17, 2003)
e 03-2527 Docket)
(Jun. 16, 2003)
e 2003 WL _ 23096738 (Appellate Brief) Brief of
Plaintiff-Appellant County of Mille Lacs (2003)Original
Image of this Document (PDF)
e =2003 WL 23096739 (Appellate Brief) Brief of the
State of South Dakota, Amicus Curiae, in Support of
Petitioner (2003)Original Image of this Document (PDF)
8a
e 2002 WL 32340890 (Appellate Brief) Brief of
Appellant First National Bank of Milaca (2002)Original
Image of this Document (PDF)
9a
APPENDIX B
UNITED STATES DISTRICT COURT
D. MINNESOTA
No. 02-CV-407 JMRRLE
COUNTY OF MILLE LACS et al.
.
MELANIE BENJAMIN et al.
May 6, 2003
ORDER
ROSENBAUM, Chief Judge.
Plaintiff County of Mille Lacs (“County”), and intervenor,
First National Bank of Milaca,' ask the Court to declare the
legal status of an Indian reservation.” The reservation was
established by an 1855 treaty between the Mille Lacs Band of
Chippewa Indians and the United States of America.
Defendants are individual leaders of the Mille Lacs Band of
Chippewa Indians. This matter is before the Court on
defendants’ motion for summary judgment.
' The First National Bank of Milaca has intervened as a plaintiff. See
Fed.R.Civ.P. 24(a)(2). For purposes of this motion, the Court will refer to
the County and the Bank collectively as plaintiffs.
> Plaintiffs also ask the Court to strike defendants’ supplemental
exhibits and affidavits. Because these materials were not used by the
Court in rendering its decision, plaintiffs' motion is moot.
10a
I. Background
A brief history of the reservation provides a context for this
dispute. In 1837, not far from Fort Snelling, Minnesota, the
United States and 12 Chippewa Nation Bands negotiated a
treaty under which the Chippewa Bands ceded title to certain
upper midwest lands to the United States.
On February 22, 1855, the Minnesota Chippewa entered
into another treaty, whereby six separate tracts of reservation
land were established as a permanent home for the Minnesota
Chippewa, including the Mille Lacs Band. The Mille Lacs
Band encompassed some 61,000 acres around Kathio, South
Harbor, and Isle Harbor townships in Minnesota (hereinafter
“the 1855 reservation’).
Two additional treaties, 12 Stat. 1249 (1863) and 13 Stat.
693 (1864),° are of interest. In 1863, and again in 1864, the
Minnesota Chippewa entered into treaties ceding further
lands to the United States. Article XII of both treaties
provides, “that, owing to the heretofore good conduct of the
Mille Lac [sic] Indians, they shall not be compelled to
remove [from their reservation to White Earth] so long as
they shall not in any way interfere with or in any manner
molest the persons or property of the whites.”
The treaty terms were not, however, always honored. As
stated by the Court of Claims, “[t]he 1863 and 1864 treaties
notwithstanding, between 1871 and 1889, 55,976.42 acres of
the Mille Lac land were filed against under the public land
laws, 1.e., homestead and preemption entries were made on
over ninety percent of it.” Minn. Chippewa Tribe v. United
States, 11 Cl.Ct. 221, 225 (1986). On July 4, 1884, to forestall
this loss, Congress stayed any patenting or disposal of Mille
Lacs land pending further legislation. See Ch. 180, 23 Stat.
> The 1864 Treaty also earmarked specific tracts of land for Mille Lacs
Band leadership.
lla
76, 98 (1884). In 1889, not long thereafter, Congress passed
the Nelson Act, which applied the policies of the General
Allotment Act to the Chippewa Bands. The Nelson Act
contained several provisions significantly different from the
General Allotment Act. While the General Allotment Act
provided individual members with certain proceeds from the
sale of tribal land, the Nelson Act directed any profits derived
from land sales into a collective permanent trust fund for the
Minnesota Chippewa Band.
On February 15, 1909, Congress authorized the Court of
Claims:
to hear and determine a suit or suits to be brought by and
on behalf of the Mille Lac [sic] Band of Chipp-
ewa Indians in the State of Minnesota against the United
State [sic] on account of losses sustained by them or the
Chippewas of Minnesota by reason of the opening of the
Mille Lac [sic] Reservation . . . to public settlement
under the general land laws of the United States.
35 Stat. 619, c. 126 (1909). The Mille Lacs Band filed suit
pursuant to the 1909 Act to recover losses resulting from the
1889 Act. This suit was ultimately heard and resolved by the
United States Supreme Court, which ordered an assessment
of damages in favor of the Band. See United States v. Mille
Lac Band of Chippewa Indians, 229 U.S. 498, 33 S.Ct. 811,
57 L.Ed. 1299 (1913). Shortly after this decision, the United
States purchased land for the Mille Lacs Band and made
allotments to it and its members. The 4,000 acres purchased
at that time are held in trust, and are not disputed here.
In 1990, the Mille Lacs Band filed a lawsuit which casts its
shadow over the present matter. By joining with several other
Bands, they sought a declaratory judgment to establish
entitlement to continued implied hunting and fishing rights
originally guaranteed in the 1837 Treaty. Nine years later, the
United States Supreme Court ruled in their favor, and in
12a
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.
172, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999), found that the
1837 Treaty protected the their hunting and fishing rights.
Notwithstanding the finality of the Supreme Court’s decision,
there still remain a number of unresolved issues between the
Mille Lacs Band and neighboring landowners.
It is'also appropriate to recognize that, over the past few
years, the Mille Lacs Band has opened two highly successful
casinos, and has used revenues therefrom to acquire addi-
tional land. During this time, the Mille Lacs Band leaders
have referred to a possible reassertion of their claim to land
within the 1855 reservation boundaries. This claim has
exacerbated relations between the Mille Lacs Band and its
nearby neighbors, who brought this case. Plaintiffs ask the
Court to declare that the Mille Lacs Band has no claim to any
land beyond that which it occupies today.
Il. Discussion
Defendants premise their motion to dismiss on four juris-
dictional arguments. First, they claim plaintiffs lack standing
to assert their claims. Second, they deny plaintiffs’ claims are
ripe for adjudication. Third, they claim sovereign immunity
bars the action. Fourth, they claim plaintiffs’ failure to join
the United States in this action is a failure to join an
indispensable party.“
Before addressing the merits of their motion, the Court
must consider the posture of the motion. The First National
Bank of Milaca argues that dismissal, not summary judgment,
is the proper remedy for a non-justiciable suit. Pl. Opp’n
Mem. at 8 (citing Fed.R.Civ.P. 12(b)). While the Court agrees
that if plaintiffs lack standing dismissal is the proper remedy,
it finds defendants have properly raised justiciability argu-
* The Court finds it lacks subject matter jurisdiction and declines to
rule on the latter two arguments.
13a
ments through their summary judgment motion. Dep’t of
Commerce v. U.S. House of Representatives, 525 U.S. 316,
329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999); Lujan y.
Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992).
Defendants are foreclosed from filing a motion to dismiss,
having already interposed an answer. Fed.R.Civ.P. 12(b) (“A
motion making any [12(b) ] defenses shall be made before
pleading if a further pleading is permitted.”); see also 5A
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1361 (Supp.2002) (“{MJotions raising [a lack of
subject matter defense] may be considered by the court even
when interposed after the responsive pleading has been filed,
although technically [it is] no longer [a] Rule 12(b) motion
[ ].”). Therefore, because a motion to dismiss is procedurally
barred, the Court employs the traditional summary judgment
analysis to evaluate standing.
Under this rubric, plaintiffs must establish a genuine issue
of material fact as to justiciability in order to survive
summary judgment. Dep’t of Commerce, 525 U.S. at 329,
119 S.Ct. 765 (“To prevail on a... motion for summary
judgment—as opposed to a motion to dismiss—{ ] mere
allegations of injury are insufficient. Rather, a plaintiff must
establish that there exists no genuine issue of material fact as
to justiciability or the merits.”); Lujan, 504 U.S. at 56i, 112
S.Ct. 2130 (“Since [the elements of standing] are not mere
pleading requirements but rather an indispensable part of
the plaintiffs case, each element must be supported ir. the
same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.”)
(citations omitted).
ecient eis
14a
A. Standing
The question of standing “involves constitutional limi-
tations of federal court jurisdiction.” Bennett v. Spear, 520
U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)
(quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197,
45 L.Ed.2d 343 (1975)). “To satisfy the case or controversy
requirement of Article III, which is the irreducible consti-
tutional minimum of standing, a plaintiff must, generally
speaking, demonstrate that he has suffered injury in fact, that
the injury is fairly traceable to the actions of the defendant,
and that the injury will likely be redressed by a favorable
decision.” Jd. “In addition to constitutional requirements,
standing also involves prudential limits on the exercise of
federal jurisdiction.” Rosebud Sioux Tribe v. McDivitt, 286
F.3d 1031, 1036 (8th Cir.2002) (citing Bennett, 520 U.S. at
162, 117 S.Ct. 1154).
Constitutional standing “assures that the legal questions
presented to the court will be resolved, not in the rarified
atmosphere of a debating society, but in a concrete factual
context conducive to a realistic appreciation of the
consequences of judicial action.” Valley Forge Christian
Coll. v. Ams. United for Separation of Church and State, Inc.,
454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
“Absent specific facts establishing distinct and palpable
injuries fairly traceable to [the defendants’ conduct]” the
injury in fact requirement is not satisfied. Ark. ACORN Fair
Hous., Inc. v. Greystone Dev., Inc., 160 F.3d 433, 435 (8th
Cir.1998). Therefore, absent an actual controversy, the Court
lacks jurisdiction. See Caldwell v. Gurley Ref. Co., 755 F.2d
645, 648 (8th Cir.1985).
1. Law of the Case
First National Bank of Milaca claims the Court’s inquiry
into its standing is foreclosed by Magistrate Judge Noel’s
Order allowing it to intervene. The Bank asserts the
15a
Magistrate’s ruling established the binding “law of the case.”
The Bank is incorrect; its position misconstrues the “law of
the case.”
The Bank cites a number of cases, including Klein vy.
Arkoma Prod. Co., 73 F.3d 779, 784 (8th Cir.1996), to
support its position. Klein, however, refers not to a
magistrate’s ruling vis-a-vis the district court hearing the
case, but rather to the precedential effect of an appellate
court’s decision on the lower court when the matter is
remanded. This case is entirely different.
If the Bank’s argument is correct, this Court could never
alter a magistrate’s decision, or indeed, one of its own. To the
contrary, it is clear that a district court may correct itself to
avoid later reversal when convinced a decision “is clearly
erroneous and would work a manifest injustice.” Arizona v.
California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d
318 n. 8 (1983); Lovett v. Gen. Motors Corp., 975 F.2d 518,
$22 (8th Cir.1992); 28 U.S.C. § 636 (granting district court
judge’s authority to reverse erroneous magistrate orders). In
Lovett, the Eighth Circuit Court of Appeals upheld a district
court’s reconsideration of its own standing decision. See id.
Because the law of the case doctrine applies only to issues
decided by final judgments, id., the earlier decision did not
bind the court. Here, the Magistrate did permit the Bank to
intervene. But the law of the case does not bar this Court’s
consideration of the Bank’s standing.
2. Do Plaintiffs Have Standing?
Constitutional standing requires that plaintiffs suffer some
injury to justify the Court’s entry of a declaratory judgment.
Standing requires either actual or threatened injury. Babbitt,
* Article III standing is a prerequisite to intervention. Standard Heating
& Air Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 570 (8th
Cir.1998).
l6a
442 U.S. 289, 292, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).
“At the summary judgment stage the party invoking federal
jurisdiction must have at least alleged specific facts that,
taken as true, demonstrate the party suffered an injury in fact,
that is one which is ‘(a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.’” Nat’/
Fed’'n for the Blind v. Cross, 184 F.3d 973, 979 (8th
Cir.1999) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130).
Plaintiffs’ primary claim arises out of threatened regulation
by Mille Lacs Band ordinances.° The Court finds this
claimed injury does not meet the constitutional requirement
for standing; it is not actual, concrete, or imminent.
While actual enforcement of regulatory ordinances is not
required by law, standing requires more than an “imaginary
or speculative” fear of prosecution. Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60
L.Ed.2d 895 (1979). An injury may involve past prosecution,
United Food & Commercial Workers Int'l Union v. IBP, Inc.,
857 F.2d 422, 427 (8th Cir.1988), or the intent to engage in
the exercise of a constitutionally guaranteed right, Doe v.
Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201
(1973). See also Stoianoff v. Montana, 695 F.2d 1214 (9th
Cir.1982) (“The mere existence of a statute, which may or
may not ever be applied to plaintiffs, is not sufficient to create
a controversy within the meaning of Article III.”). In order to
*996 allege a cognizable injury, plaintiffs must demonstrate a
realistic danger of enforcement by the Band:
° See, e.g. 18 M.L.B.S.A. § 101 (requiring Band licensure to conduct
business with the Band or within its jurisdiction); 24 M.L.B.S.A.
§§ 3301-3309, 3501-3510 (setting debtor/creditor law); 11 M.L.B.S.A.
§ 9 (providing environmental protection regulations); 11 M.L.B.S.A.
§ 1002 (regulating waste disposal); 5S M.L.B.S.A. §§ 111(a)-(e), 113
(establishing general tribal court jurisdiction); 24 M.L.B.S.A. § 2-6, 5
M.L.B.S.A. §§ 101, 111-13(asserting various areas of exclusive tribal
court jurisdiction within the tribal lands).
17a
In Steffel v. Thompson, the United States Supreme Court
permitted a pre-enforcement First Amendment challenge to a
law, but the law was a criminal statute. See 415 U.S. 452,
459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The Court
limited potential prosecution claims to cases where the threat
of prosecution is not imaginary, speculative, or chimerical.
Id.; United Food, 857 F.2d at 425-30 (first amendment
challenges to previously enforced criminal picketing statutes);
High Ol’ Times, Inc. v. Busbee, 621 F.2d 135, 138-39 (Sth
Cir.1980) (first amendment challenge to a criminal statute).
These cases, in contrast to the present case, uniformly involve
chilled speech, an area traditionally afforded a high degree of
constitutional protection. Plaintiffs point to neither an
imminent threat of criminal prosecution nor to a history of
past prosecution. The ordinances about which they complain
certainly present no threat to their right to free speech, or
other fundamental rights.
Plaintiffs offer Northern States Power Co. v. Prairie Island
Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th
Cir.1993), to support their claim to standing. Their reliance is
misplaced. Prairie Island is distinguishable on its facts. In
Prairie Island, the Mdewakanton Sioux expressed its present
intention to enforce a tribal ordinance regulating the transport
of nuclear waste on an established reservation which houses a
functioning nuclear electrical generation plant. Jd. at 459.
On those facts, Northern States Power could easily
demonstrate an actual ongoing injury stemming from the
ordinance, including delays in the shipping of hazardous
nuclear waste and the inability to monitor the safety of a
nuclear energy plant. See id. at 463. Prairie Island is not
analogous to this case.
The Mille Lacs Band has neither threatened nor
demonstrated an intention to enforce its ordinances beyond its
4000 acres. See Assoc. of Prop. Owners/Residents of Port
Madison Area vy. Individual Council Members of the
4
18a
Suquamish Tribal Council, C01-5317FBD, *4 (W.D. Wash.
April 17, 2002) (finding no injury where tribe had not tried to
enforce ordinance against plaintiff). The only shred of
evidence supporting plaintiffs’ claim of imminent enforce-
ment is a March 23, 1992, letter from defendants concerning
licensing. Defendants claim this letter was sent in error, and
that licensing is required only of those with whom the Mille
Lacs Band, itself, does business.’ Given that the Mille Lacs
Band sent this letter more than 10 years ago, has run its
licensing program for the past 11 years, and has never
directly contacted either plaintiff, the Court finds the
proffered letter wholly fails to demonstrate an immediate or
certain threat of enforcement or injury. Absent a credible
threat of enforcement, plaintiffs’ claims are mere conjecture
and do not give rise to standing. Brown-Outagamie-Oneida
Jurisdiction Comm’n v. Powless, 85-C-1052 (E.D.Wisc. Sept.
28, 1990) (finding case not ripe where tribe had not-attempted
to enforce ordinance).
The text of the Mille Lacs Band ordinances similarly fails
to prove pending enforcement. The only reference to the 1855
reservation is in the definitions section of the hunting, fishing,
and wild rice ordinances. See 11 M.L.B.S.A. § 2001(n). This
reference facially relates to the landmark Minnesota v. Mille
Lacs Band of Chippewa Indians case. Such a limited *997
reference is insufficient to indicate an intent to enforce all of
the Mille Lacs Band ordinances on the land within the 1855
boundaries.*
’ A similar letter, sent in 2001, expressly includes only those doing
business with the tribe, see PI.Ex. 18. This letter appears consistent with
defendants’ sworn statements. See Twait Dec. at 2; Big Bear Aff. at 1-2.
* Similarly, 11 M.L.B.S.A. § 9(e), which provides jurisdiction to
enforce environmental regulations, is limited to the extent of United States
law. As federal law largely proscribes the broad assertion of tribal
jurisdiction over non-Indians, Nevada v. Hicks, 533 U.S. at 388- 92, 121
19a
The County complains it has been injured in its ability to
protect public safety, citing concerns over civil regulatory and
traffic laws, and zoning regulations. It insists, therefore, that
it needs this Court’s clarification of tribal land boundaries.
The Tenth Circuit Court of Appeals considered this issue in
Norvell v. Sangre de Cristo Dev. Co., Inc., 519 F.2d 370
(10th Cir.1975), in which the State of New Mexico sought
a declaratory judgment establishing the scope of its juris-
diction over a company operating on reservation land. /d. at
371-72. New Mexico claimed its “direct concern[ ] with the
applicability of its laws and regulations not only as to the
Company, but derivatively to the community of approxi-
mately 15,000 non-Indian persons who will ultimately live
and do business in the non-Indian community” was sufficient
to create an actual case or controversy. /d. at 374. The
appellate court did not agree, holding that absent evidence
that Indians were refusing to comply with state law, no case
or controversy existed. /d. at 376-77. The same principle
holds here; the County’s mere interest in the proper
enforcement of law and community safety does not provide
standing. /d.
The Mille Lacs Band and its members have consistently
complied—however grudgingly—with the County’s zoning
regulations and state traffic laws. The deposition testimony of
the Mille Lacs County Sheriff, Dennis Boser, indicates the
Mille Lacs Band has taken no actions which adversely affect
the County’s ability to enforce state or county law, and that
any legal conflicts which do exist have not harmed public
safety. See Pl. Bank Ex. 7 at 14, 19, 47. Even assuming the
Mille Lacs Band members obey the County’s ordinances only
“under protest,” plaintiffs have not shown that their
S.Ct. 2304, the Court will not construe this provision beyond both actual
enforcement and its terms.
20a
compliance “under protest” has created a real injury.” When
examined, the County’s position appears to be that the Court
should hold that defendants’ compliance with County law
constitutes injury. The Court is unable to find any legal
precept that can support this theory.
The County’s concern over potential liability similarly
affords no colorable claim. The County claims its potential
liability stemming from law enforcement beyond its juris-
diction constitutes a cognizable injury. It supports this
position by citing Ross v. Neff, 905 F.2d 1349 (10th
Cir.1990), in which a state police officer arrested an Indian in
Indian Country in a non-Public Law 280 state. This arrest led
to a civil rights case involving potential municipal liability.
The Court finds Ross insufficient to support this claim.
It is clear that potential liability stemming from a filed
complaint can be sufficient to create standing. See Va. Sur.
Co. v. Northrop Grumman Co., 144 F.3d 1243, 1246 (9th
Cir.1998). On the other hand, an *998 amorphous threat of
future liability alone does not result in injury. If such an
inchoate claim could support standing, a court could
intervene whenever any entity faced the possibility of future
litigation. See O’Shea v. Littleton, 414 U.S. 488, 497, 94
S.Ct. 669, 38 L.Ed.2d 674 (1974) (finding plaintiffs lacked
standing to complain of an injury that would occur “if they
proceed[ed] to violate an unchallenged law and if they [were]
charged, held to answer and tried in any proceedings”);
Caribbean Marine Serv. Co., Inc. v. Baldrige, 844 F.2d 668,
675 (9th Cir.1988) (finding no standing where plaintiffs claim
* The cases cited by the County cannot be read to stand for this
proposition. See, e.g., Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115,
87 L.Ed. 1450 (1943) (continued dispute over reissued patents gave rise to
controversy); Atchison, Topeka & Sante Fe Railway Co. v. O'Connor, 223
U.S. 280, 285-87, 32 S.Ct. 216, 56 L.Ed. 436 (1912) (action to recover
taxes paid under protest). Neither case is premised on a defendant’s actual
compliance with a law.
2la
increased exposure to liability dependent on multiple con-
tingencies); City of South Lake Tahoe v. Cal. Tahoe Reg’!
Planning Agency, 625 F.2d 231, 238-39 (9th Cir.1980)
(finding no standing where exposure to civil liability is
speculative).
Here, the County’s exposure to liability depends on the
likelihood of its officers’ violating the constitutional rights of
Mille Lacs Band members by reason of municipal policy or
custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court has no
evidence before it which suggests such an illegal policy is in
place in Mille Lacs County. This scenario is scarcely the
kind of risk upon which jurisdiction can be based. The Court
must, absent evidence to the contrary, assume the County’s
law enforcement officers will continue to protect the citizenry
and avoid constitutional wrongs. The Court finds the
County’s proffered “threat of civil liability is too attenuated
and conjectural to constitute a basis for standing.” Caribbean
Marine, 844 F.2d at 675.
Next, plaintiffs claim statements made by defendants
regarding their rights under the 1855 Treaty have caused a
loss or degradation of local real estate values. The Bank
claims $11,000,000 in real estate loans have been
jeopardized; the County claims a loss of property tax revenue
and a potential diminution of resale value should it sell
municipally-owned land. Plaintiffs offer these claims,
underpinned by the affidavit of real estate appraiser Roger
Wagner. The Court rejects this insubstantial evidence.
Mr. Wagner’s affidavit lacks the foundation necessary to
fulfill Rule 56(e)’s requirement that statements in reply to a
motion for summary judgment “set forth such facts as would
be admissible into evidence.” The only “fact” underlying his
opinion is a published advertisement identifying a piece of
property as “outside the disputed boundaries.” He offers
neither statistical nor empirical evidence comparing land
22a
values within or without the 1855 reservation boundaries.
He does not point to a single instance where the Bank has
ever declined a mortgage or tendered one at a higher rate
for property within or without those borders. The affidavit
does not state that property values are lower in Mille Lacs
County compared to its surrounding neighbors either as a
result of or in connection to any perceived risk. Plaintiffs’
“expert” offers nothing other than conjecture to show that
verbal sparing over the 1855 boundaries has caused any
devaluation or decline in real estate values. Mr. Wagner
presents no data or quantification as to the actual lost value
caused by the dispute, but merely offers his personal belief
that some effect has occurred.
The Court notes the 1855 reservation borders include much
of Mille Lacs Lake and other highly desirable vacation,
business, and residential property. Taking into account the
historically strong interest in owning this lakefront property,
and the absence of evidence of so much as a single sale where
proximity to Indian Country affected price, the Court finds
plaintiffs allege no injury or risk of future injury.
Setting aside the utter paucity of admissible evidence
supporting this claim, there is another problem with this
proffered jurisdictional theory. Even assuming plaintiffs have
correctly described landowners’ fears, any claimed
diminution of land value would result from the disinterest of
third-party potential-purchasers in owning land in the
reservation—not from legal uncertainty. The impact of
this Court’s decision depends, therefore, on actions of third-
party property buyers and owners who are not parties to
this litigation. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130
(“there must be a causal connection between the injury
and the conduct complained of—the injury has to be ‘
fairly . . . traceable to the challenged action of the defendant,
and not. . . the result [of] the independent action of some
third party not before the court’ “). Independent personal
23a
decisions on land value remain outside the control of
the Court. Because this Court cannot affect buyers per-
ceptions about the nature of title within a reservation—
however unfounded—a decision on the merits will not redress
these concerns.
Plaintiffs’ devaluation argument also reflects confusion as
to the nature of declaratory relief. Plaintiffs ask the Court to
determine whether the 1855 reservation continues as a valid
legal entity. The Court may decide the case as plaintiffs wish
and find the reservation disestablished or diminished. But the
Court could also make the contrary ruling and find the 1855
reservation a legally valid entity. If the Court were to do
so—and notably the defendants have not sought this
finding—the result could well solidify rather than ameliorate
plaintiffs’ fears. Plaintiffs’ complaints stem then, not from
uncertainty, but from fears and perceptions concerning an
unfavorable decision on the lawsuit they have themselves
initiated. This is not the kind of injury the law recognizes as
conferring standing.
Before the Court will invoke its sweeping declaratory
judgment power, it must preside over a live controversy.
Here, plaintiffs have not offered proof that such a controversy
of constitutional dimension exists. The Court, therefore,
cannot address the serious issues before it.
B. Ripeness
As an alternative, but certainly related basis, the Court
finds this case is not ripe for adjudication. See U.S. Const.
Art. III; see also United Food, 857 F.2d at 425-26 (applying
ripeness to Declaratory Judgment Act). The ripeness doctrine
precludes any decision on a legal or factual question absent “a
real, substantial controversy between parties having adverse
legal interests, a dispute definite and concrete, not hypo-
thetical and abstract.” See Babbitt, 442 U.S. at 298, 99 S.Ct.
2301 (quotations omitted). Ripeness requires “fitness of the
24a
issues for judicial decision” and examination of “the hardship
to the parties of withholding court consideration.” See Abbott
Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18
L.Ed.2d 681 (1967).
The Declaratory Judgment Act calls upon the Court to
apply a heightened standard of ripeness, allowing judicial
intervention only where “there is a substantial controversy,
between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a
declaratory judgment.” See Lake Carriers Ass’n v. Mac-
Mullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257
(1972); Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050 (8th
Cir.1996) (citing Caldwell, 755 F.2d at 649). The Court’s
declaratory power is strictly discretionary, see Wilton v. Seven
Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d
214 (1995). and is to be exercised with caution.
The Court finds this litigation involves only hypothetical
and speculative *1000 disagreements. See Cass County v.
United States, 570 F.2d 737, 738 (8th Cir.1978) (finding
generalized claims of confusion over jurisdiction lack needed
specificity). According to plaintiffs, legal uncertainty over
tribal jurisdiction within the 1855 reservation boundaries has
created an unbearable hardship requiring judicial action.'°
While the Courts have found uncertainty regarding legal
'° Plaintiffs support this contention by pointing to Justice Souter’s
concurrence in Nevada v. Hicks, 533 U.S. 353, 383, 121 S.Ct. 2304, 150
L.Ed.2d 398 (1995). That case involved a tribal court’s assertion of
jurisdiction over state actors in a § 1983 case. The language plaintiffs
quote, however, comes from a portion of Justice Souter’s opinion which
urges ending any linkage of tribal jurisdiction from status. He argues that
maintaining this connection creates an “unstable jurisdictional crazy
quilt.” /d. At best, the quoted language can be read as a call for bright-
line rules governing subject matter jurisdiction for tribal courts. The
Court cannot find in the Justice’s quoted language any support for a
requirement to resolve every possible dispute over land ownership or
reservation status.
25a
status can justify judicial action in a limited number
of cases, see, e.g., Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409
(1985), those cases involved a clear injury in the absence of
judicial action. See id. (wherein regulation restricted access
to jury trial). Here, any overlapping jurisdictional claims
are highly conjectural, and a decision on these abstracted
claims is unwarranted. See Cass County, 570 F.2d at 741-
42 (connecting boundary decisions to disputes over taxing
authority, criminal jurisdiction, and fishing and hunting
rights cases).
Plaintiffs cite a number of cases where courts have
resolved land disputes through declaratory judgment, but
none of them are analogous to this case. In each of the cited
cases, there were concrete and specific incidents involving
reservation boundaries and sovereignty. See id.; Yankton
Sioux Tribe v. South Dakota, 796 F.2d 241 (8th Cir.1986)
(conversion and declaratory action arising from non-Indian
harvesting on a reservation lake).
Plaintiffs ask the Court to focus on the Rosebud Sioux
Tribe litigation. See Rosebud Sioux Tribe v. Kneip, 375
F.Supp. 1065 (D.S.D.1974), aff'd 521 F.2d 87 (8th Cir.1975),
aff'd 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977).
That suit sought a declaration of the original reservation
boundaries intact after the defendant county exercised both
civil and criminal jurisdiction over tribe members. 430 U.S.
at 585, 97 S.Ct. 1361, 51 L.Ed.2d 660. In City of New Town
v. United States, 454 F.2d 121 (8th Cir.1972), plaintiff,
a North Dakota municipality, sought declaratory relief in the
wake of particularized challenges to municipal authority.
Even if plaintiffs have tracked the pleadings filed in those
cases, their having done so does not make this dispute
ripe. The distinction is pristine: Rosebud Sioux and City of
New Town presented ripe factual disputes; this one does
not. The cited cases involved explicit efforts by one sovereign
26a
to exercise particular powers beyond their lawful jurisdiction;
they did not present abstracted concerns over reservation
boundaries.
Plaintiffs offer a laundry list of problems and fears they
feel are related to the possible existence of the 1855
reservation boundaries, and suggest these make this case ripe
for adjudication. Their list includes greater regulatory
authority under the EPA and National Historic Preservation
Act, limits on county and state regulatory authority, and an
expansion of the reach of tribal authority and sovereignty
should the 1855 boundaries be in place. This litany of
concerns misapprehends ripeness. If the Band’s tribal
authority covers the full extent of the 1855 reservation, *1001
it might well alter private and public sector relationships in
the Mille Lacs area. The mere fact that a decision will be
momentous does not, however, make this the proper time to
render it.
Similarly, the ordinances examined above do not provide
evidence of hardship. Simply put, in the absence of any
immediate or impending concrete injury—where plaintiffs
lack standing—any hardship caused by delayed review is
conjectural. Plaintiffs claim the mere possibility that the Mille
Lacs Band might try to enforce its ordinances is a valid
- ongoing threat, even if the ordinances have never been
enforced. As explained, the law permits declaratory relief
in a limited number of circumstances where enforcement is
pending. Those circumstances are not present here; the parties
are not faced with a choice between protected conduct and
a risk of sanction. See Caldwell, 755 F.2d at 650 (stating
the “threat of enforcement must have immediate coercive
consequences” in order to intervene before regulatory action).
Ripeness is a question of timing. This Court will not
exercise its declaratory judgment authority to interpret
treaties and decide grave questions regarding reservation
disestablishment in the absence of a real dispute. Plaintiffs
27a
have failed to demonstrate why this Court should exercise
its authority at this time. Accordingly, the Court lacks
jurisdiction over this dispute.
III. Conclusion
It is axiomatic that federal court jurisdiction is limited. A
justiciable case or controversy is central to the constitutional
constraints on a federal court’s ability to act. The Court has
found plaintiffs lack standing to bring their claims and,
alternatively, their claims are not yet ripe for adjudication.
Accordingly, IT IS ORDERED that:
1. Defendants’ motion [Docket No. 31] is granted.
2. Plaintiffs’ motion to strike [Docket No. 54] is dismissed
as moot.
3. This case is dismissed with prejudice.
262 F.Supp.2d 990
28a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 03-2527/2537
COUNTY OF MILLE LACs,
Appellant,
v.
MELANIE BENJAMIN, ETC., ef ai/.,
Appellees.
Order Denying Petition for Rehearing and
for Rehearing En Banc
The petitions for rehearing en banc are denied. The petition
for rehearing by the panel are also denied.
(5128-010199)
May 19, 2004
Order Entered at the Direction of the Court:
/s/ Michael E. Gans
MICHAEL E. GANS
Clerk, U.S. Court of Appeals, Eighth Circuit
ee re ae
29a
APPENDIX D
INDIAN AFFAIRS
LAWS AND TREATIES
Vol. Il
(TREATIES)
COMPILED AND EDITED
BY
CHARLES J. KAPPLER, LL. M..,
CLERK TO THE SENATE COMMITTEE
ON INDIAN AFFAIRS
WASHINGTON:
GOVERNMENT PRINTING OFFICE
1904
30a
TREATY WITH THE CHIPPEWA OF THE MSSISSIPPI AND
THE PILLAGER AND LAKE WINNIBIGOSHISH BAND, 1863.
Articles of agreement and convention, made and
concluded at the city of Washington, this
eleventh day of March, A. D. one thousand eight
hundred and sixty-three, between William P.
Dole, Commissioner of Indian Affairs, and Clark
W, Thompson, superintendent of Indian affairs of
the northern superintendency, on the part of the
United States, and Henry M. Rice, of Minnesota,
for and on behalf of the Chippewas of the Mis-
sissippi and the Pillager and Lake Winnibigo-
shish bands of Chippewa Indians in Minnesota.
ARTICLE 1. The reservations known as Gull
Lake, Mille Lac, Sandy Lake, Rabbit Lake, Poka-
gomin Lake, and Rice Lake, as described in the
second clause of the second article of the treaty with
the Chippewas of the 22d 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 2. In consideration of the foregoing
cession, the United States agree to set apart for the
future homes of the Chippewas of the Mississippi,
all the lands embraced within the following-
described boundaries, excepting the reservations
made and described in the third clause of the second
article of the said treaty of February 22, 1855, for
the Pillager and Lake Winnibigoshish bands; that is
to say, beginning at a point one mile south of the
most southerly point of Leech Lake, and running
thence in an easterly course to a point one mile
south of the most southerly point of Goose Lake;
thence due east to a point due south from the
intersection of the Pokagomin reservation and the
Mississippi River; thence on the dividing-line be-
tween “Deer River and Lakes” and “Mashkorden’s
River and Lakes,” until a point is reached north of
the first-named river and lakes; thence in a direct
Mar. 11, 1863.
12 Stats., 1249.
Ratified,
Mar. 13, 1863.
Proclaimed
Mar. 19, 1863.
Certain reserva-
tions ceded to the
United States,
except, etc.
Reservation set
apart in lieu
thereof.
Boundaries.
3la
line north westwardly to the outlet of “Two-Routes
Lake;” thence in a southwesterly direction to the
northwest corner of the “Cass Lake” reservation;
thence in a southwesterly direction to “Karbekaun”
River; thence down said river to the lake of
the same name; thence due south to a point due west
from the beginning; thence to the place of
beginning.
ARTICLE 3. In consideration of the foregoing ces-
sion to the United States, and the valuable improve-
ments thereon, the United States further agree: 1st.
To extend the present annuities of the Indians,
parties to this treaty, for ten years beyond the
periods respectively named in existing treaties; 2nd.
And to pay toward the settlement of the claims for
depredations committed by said Indians in 1862, the
sum of twenty thousand dollars, or so much thereof
as may be necessary, provided that no money shall
be paid under this item, except upon claims which
have been duly adjudicated and found to be due
under existing treaties, from said Indians, and
allowed by the Secretary of the Interior, or under his
direction; 4th. To the chiefs of the Chippewas of the
Mississippi, sixteen thousand dollars, (provided
they shall pay to the chiefs of the Pillager and Lake
Winnibigoshish bands one thousand doliars,) to be
paid upon the signing of this treaty, out of the
arrearages due under the 9th article of the treaty
concluded at La Pointe, in the State of Wis-
consin, on the 30th of September, 1854; 5th. And to
pay the expenses incurred by the legislature of the
State of Minnesota in the month of September,
1862, in sending commissioners to visit the Chip-
pewa Indians, amounting to thirteen hundred and
thirty-eight dollars and seventy-five cents.
ARTICLE 4. The United States further agree to
clear, stump, grub, and break in, the reservation
hereby set apart for the Chippewas of the Mis-
sissippi, in lots of not less than ten acres each, at
such point or points as the chiefs of each band may
select, as follows, viz: For the Gull Lake band,
Annuities.
Reservation to be
cleared, etc., in
lots.
32a
seventy acres; for the Mille Lac band, seventy acres;
for the Sandy Lake band, fifty acres; for the
Pokagomin band, fifty acres; for the Rabbit Lake
band, forty acres; for the Rice Lake band, twenty
acres; and to build for the chiefs of said bands one
house each, of the following description: to be
constructed of hewn logs; to be sixteen by twenty
feet each, and two stories high; to be roofed with
good shaved pine shingles; the floors to be of
seasoned pine-plank, jointed; stone or brick fire-
places and chimneys; three windows in lower story
and two in the upper story, with good substantial
shutters to each, and suitable doors; said houses to
be pointed with lime mortar: provided, that the
amount expended under this article shall not exceed
the sum of three thousand six hundred dollars.
ARTICLE 5. The United States agree to furnish to
said Indians, parties to this treaty, ten yoke of good,
steady, work oxen, and twenty log-chains, annually,
for ten years, provided the Indians shall take proper
care of, and make proper use of the same; also, for
the same period, annually, two hundred grubbing-
hoes, ten ploughs, ten grindstones, one hundred
axes, handled, not to exceed in weight three and
one-half pounds each; twenty spades. Also two car-
penters and two blacksmiths, and four farm labor-
ers, and one physician—not exceeding, in the aggre-
gate, one thousand dollars.
ARTICLE 6. The United States further agree to
remove the saw-mill from Gull Lake reservation, to
such point on the new reservation hereby set apart
as may be selected by the agent, and to keep the
same in good running order, and to employ a
competent sawyer, so long as the President of the
United States may deem it necessary; and to extend
the road between Gull Lake and Leech Lake, from
the last-named lake to the junction of the Mis-
sissippi and Leech Lake Rivers; and to remove the
agency to said junction, or as near thereto as prac-
ticable; but not more than three thousand dollars
shall be expended for this purpose.
Houses for chiefs.
Oxen and tools.
Carpenters,
blacksmiths, etc.
Sawmill.
33a
ARTICLE 7. The President shall appoint a board
of visitors, to consist of not less than two nor more
than three persons, to be selected from such Chris-
tian denominations as he may designate, whose duty
it shall be to attend the annuity payments to the
Indians, and to inspect the fields and other im-
provements of the Indians, and to report annually
thereon, on or before the first of November; and
also as to the qualifications and moral deportment of
all persons residing upon the reservation under the
authority of law; and they shall receive for their
services five dollars per day for the time actually
employed, and ten cents per mile for travelling
expenses: Provided, That no one shall be paid in
any one year for more than twenty days’ service, or
for more than three hundred miles’ travel.
ARTICLE 8. No person shall be recognized as a
chief whose band numbers less than fifty persons;
and to encourage and aid the said chiefs in
preserving order, and inducing by their example and
advice the members of their respective bands to
adopt the pursuits of civilized life, there shall be
paid to each of said chiefs, annually, out of the
annuities of said bands, a sum not exceeding one
hundred and fifty dollars, to be determined by the
Commissioner of Indian Affairs, according to their
respective merits.
ARTICLE 9. To improve the morals and Indus-
trial habits of said Indians, it is agreed that no agent,
teacher, interpreter, traders, or their employes, shall
be employed, appointed, licensed, or permitted to
reside within the reservations belonging to the
Indians, parties to this treaty, missionaries excepted,
who shall not have a lawful wife residing with them
at their respective places of employment or trade
within the agency, and no person of full or mixed
blood, educated or partially educated, whose fitness,
morally or otherwise, is not conducive to the
welfare of said Indians, shall receive any benefits
from this or any former treaties.
Board of visitors
to be present at
annuity payments.
Who to be
recognized as
chiefs.
Agents, teachers,
etc., to have
families, and to be
of good moral
charater.
34a
ARTICLE 10. All annuities under this or former
treaties shall be paid as the chiefs in council may
request, with the approval of the Secretary of the
Interior, until otherwise altered or amended: Pro-
vided, That not less than one-half of said annuities
shall be paid in necessary clothing, provisions, and
other necessary and useful articles.
ARTICLE 11. Whenever the services of laborers
are required upon the reservation, preference shall
be given to full or mixed bloods, if they shall be
found competent to perform them.
ARTICLE 12. It shall not be obligatory upon the
Indians, parties to this treaty, to remove from their
present reservations until the United States shall
have first complied with the stipulations of Articles
4 and 6 of this treaty, when the United States shall
furnish them with all necessary transportation and
subsistence to their new homes, and subsistence for
six months thereafter: Provided, That owing to the
heretofore good conduct of the Mille Lac Indians,
they shall not be compelled to remove so long as
they shall not in any way interfere with or in any
manner molest the persons or property of the
whites.
ARTICLE 13. Female members of the family of
any Government employé residing on the reserva-
tion, who shall teach Indian girls domestic econ-
omy, shall be allowed and paid a sum not exceeding
ten dollars per month while so engaged: Provided,
That not more than one thousand dollars shall be so
expended during any one year, and that the
President of the United States may suspend or annul
this article whenever he may deem it expedient to
do so.
ARTICLE 14. It is distinctly understood and
agreed that the clearing and breaking of land for the
Chippewas of the Mississippi, as provided for in the
fourth article of this treaty, shall be in lieu of all
former engagements of the United States as to the
breaking of lands for those bands.
Payment of
annuities.
Laborers to be full
or mixed bloods,
where competent.
Indians not to
remove from
present reserva-
tions, until, after,
etc.
Mille Lac Indians.
Female teachers.
Clearing and
breaking, in lieu
of former
engagement.
35a
In testimony whereof, the.said William P. Dole
Signature.
and Clark W. Thompson, on behalf of the United
States, and Henry M. Rice and the undersigned
chiefs and headmen, on behalf of the Indians,
parties to this treaty, have hereunto set their hands
and affixed their seals this eleventh day of March,
A. D. one thousand eight hundred and sixty-three.
Wm. P. Dole, Commissioner of Indian Affairs. [SEAL.]
Clark W. Thompson, superinten-
dent of Indian affairs for the
northern superintendency.
[SEAL.]
Henry M. Rice. [SEAL.]
Qui-we-shen-shish, or Bad Boy, his
x mark. [SEAL.]
Wa-bo-geeg, or White Fisher, his x
mark. [SEAL.]
J. Johnson, Rabbitt Lake band:
[SEAL.]
Me-jaw-ke-ke-shick, or Sky that
Touches the Ground, his x mark.
[SEAL.]
Ah-ah-jaw-wa-ke-shick, Crossing
Sky, his x mark. [SEAL.]
Naw-gaw-ne-gaw-bow, or One
Standing Ahead, his x mark.
[SEAL.]
Sandy Lake and Rice Lake bands:
[SEAL.]
Aw-aw-bedway-we-dung, or Re-
turning Echo, his x mark.
[SEAL.]
Po-ke-ga-ma band: [SEAL.]
Ma-ya-je-way-we-dung, or Chor-
rister, his x mark. [SEAL.]
Shob-osh-kunk, or Passes under
Everything, his x mark. [SEAL.]
Me-no-min-e-ke-shen, or Rice-
maker, his x mark. [SEAL.]
Pe-dud-ence, Rat’s Liver, his x
mark. [SEAL.]
Te-daw-kaw-mo-say, Walking to
and fro, his x mark. [SEAL.]
Mose-o-man-nay, or Moose, his x
mark. [SEAL.]
Way-sa-wa-gwon-aib, Yellow
Feather, his x mark. [SEAL.]
Me-no-ke-shick, or Fine Day, his x
mark. [SEAL.]
Pillager band of Leech Lake:
Be-she-kee, or Buffalo, his x mark.
[SEAL.]
Naw-bon-e-aush, Young Man’s
Son, his x mark. [SEAL.]
O-ge-ma-way-che-waib, Chief of
the Mountain, his x mark.
[SEAL.]
Ke-me-wen-aush, Raining Wind,
his x mark. [SEAL.]
Keh-beh-naw-gay, the Winner, his
x mark. [SEAL]
Kob-mub-bey, or North Star, his x
mark. [SEAL.]
Mis-co-pe-nen-shey, Red Bird, his
x mark. [SEAL.]
Maw-je-ke-shick, Travelling Sky,
his x mark. [SEAL.]
Ma-ne-to-ke-shick, Spirit of the
Day, his x mark. [SEAL]
O-Gee-tub, the Trader, his x mark.
[SEAL.]
a
36a :
Executed in presence of—
E. A. C. Hatch, Paul H. Beaubien,
Geo. C. Whiting, United States interpreter,
A. S. H. White, Peter Roy, interpreter,
George Fuller, J. G. Morrison, interpreter,
James White head, James Thompson.
D. Geo. Morrison,
ee
37a
APPENDIX E
INDIAN AFFAIRS
LAWS AND TREATIES
Vol. II
(TREATIES)
COMPILED AND EDITED
BY
CHARLES J. KAPPLER, LL. M.,
CLERK TO THE SENATE COMMITTEE
ON INDIAN AFFAIRS
WASHINGTON:
GOVERNMENT PRINTING OFFICE
1904
38a
TREATY WITH THE CHIPPEWA OF THE MSSISSIPPI AND
THE PILLAGER AND LAKE WINNIBIGOSHISH BAND, 1864.
Articles of agreement and convention made and
concluded at the city of Washington this seventh
day of May, A. D. 1864, between William P. Dole,
Commissioner of Indian Affairs, and Clark W.
Thompson, superintendent of Indian affairs for the
northern superintendency, on the part of the
United States, and the Chippewa chief Hole-in-
the-day, and Mis-qua-dace, for and on behalf of
the Chippewas of the Mississippi, and Pillager and
Lake Winnebagoshish bands of Chippewa Indians
in Minnesota.
ARTICLE |. 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 twenty-second of 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, and one
section of land, to be located by the Secretary of the
Interior on the southeast side of Gull Lake, and which
is hereby granted in fee simple to the chief Hole-in-
the-day, and a section to chief Mis-qua-dace, at
Sandy Lake, in like manner, and one section to chief
Shaw-vosh-kung, at Mille Lac, in like manner.
ARTICLE 2. In consideration of the foregoing
cession, the United States agree to set apart, for the
future home of the Chippewas of the Mississippi, all
the lands embraced within the following-described
boundaries, excepting the reservations made and
described in the third clause of the second article of
the said treaty of February 22d, 1855, for the Pillager
and Lake Winnebagoshish bands; that is to say,
beginning at a point one mile south of the most
southerly point of Leach Lake, and running thence in
an easterly course to a point one mile south of the
most southerly point of Goose Lake, thence due east
to a point due south from the intersection of the
Pokagomin reservation and the Mississippi River,
thence on the dividing-line between Deer River and
lakes and Mashkordens River and lakes, until a point
May 7, 1864.
13 Stat. 693.
Ratified
Feb. 9, 1865.
Proclaimed
Mar. 20, 1865.
Gull Lake and
other reservations
ceded to the
United States,
except, etc.
Hole-in-the-day-
Mis-qua-dace,
Shaw, voch-
kung.
Reservation for
the Chippewa of
the Mississippi.
Boundaries.
39a
is reached north of the first-named river and lakes;
thence in a direct line northwesterly to the outlet of
Two Routs Lake, then in a southwesterly direction to
Turtle Lake, thence southwesterly to the head-water
of Rice River, thence northwesterly along the line of
the Red Lake reservation to the mouth of Thief River,
thence down the centre of the main channel of Red
Lake River to a point opposite the mouth of Black
River, thence southeasterly in a direct line with the
outlet of Rice Lake to a point due west from the place
of beginning, thence to the place of beginning.
ARTICLE 3. In consideration of the foregoing
cession to the United States, and the valuable
improvements thereon, the United States further
agree, first, to extend the present annuities of the
Indians, parties to this treaty, for ten years beyond the
periods respectively named in existing treaties;
second, and to pay towards the settlement of the
claims for depredations committed by said Indians in
1862, the sum of twenty thousand dollars; third, to
the chiefs of the Chippewas of the Mississippi, ten
thousand dollars, to be paid upon the ratification of
this treaty; and five thousand dollars to the chief
Hole-in-the-day, for depredations committed in
burning his house and furniture in 1862.
ARTICLE 4. The United States further agree to pay
seven thousand five hundred ($7,500) dollars for
clearing, stumping, grubbing, breaking, and planting,
on the reservation hereby set apart for the Chippewas
of the Mississippi, in lots of not less than ten acres
each, at such point or points as the Secretary of the
Interior may select, as follows, viz: For the Gull Lake
band, seventy (70) acres; for the Mille Lac band,
seventy (70) acres; for the Sandy Lake band, fifty
(50) acres; for the Pokagomin band, fifty (50) acres;
for the Rabbit Lake band, forty (40) acres; for the
Rice Lake band, twenty (20) acres; and to expend five
thousand dollars ($5,000) in building for the chiefs of
said bands one house each, under the direction of the
Secretary of the Interior.
ARTICLE 5. The United States agree to furnish to
said Indians, parties to this treaty, ten (10) yoke of
good steady work oxen, and twenty log-chains
annually for ten years, provided the Indians shall take
Annuities to be
extended for ten
years.
Payment toward
settlement for
depredations, and
to the chiefs.
Payments for
clearing, etc., lots
in reservation.
See. Art. 14.
Houses for
chiefs.
Oxen, plows,
and agricultural
implements to
be furnished.
40a
proper care of and make proper use of the same; also
for the same period annually two hundred (200)
grubbing-hoes, ten (10) ploughs, ten (10) grindstones,
one hundred (100) axes, handled, not to exceed in
weight three and one-half pounds each, twenty (20)
spades, and other farming implements, provided it
shall not amount to more than fifteen hundred dollars
in one year; also two carpenters, and two black-
smiths, and four farm-laborers, and one physician.
ARTICLE 6. The United States further agree to pay
annually one thousand dollars ($1,000) towards the
support of a sawmill to be built for the common use
of the Chippewas of the Mississippi and the Red Lake
and Pembina bands of Chippewa Indians, so long as
the President of the United States may deem it
necessary; and to expend in building a road, bridges,
&c., to their new agency seven thousand five hundred
dollars ($7,500;) and to expend for new agency
buildings, to be located by the Secretary of the
Interior for the common use of the Chippewas of the
Mississippi, Red Lake, and Pembina, and Pillager and
Lake Winnebagoshish bands of Chippewa Indians,
twenty-five thousand dollars ($25,000.)
ARTICLE 7 There shall be a board of visitors, to
consist of not less than two nor more than five per-
sons, to be selected from such Christian denomi-
nation or denominations as the chiefs in council may
designate, whose duty it shall be to be present at all
annuity payments to the Indians, whether of goods,
moneys, provisions, or other articles, and to inspect
the fields, buildings, mills, and other improvements
made or to be made, and to report annually thereon,
on or before the first day of November; and also as to
the qualifications and moral deportment of all persons
residing upon the reservation under the sanction of
law or regulation, and they shall receive for their
services five dollars per day for the time actually
employed, and ten cents per mile for travelling
expenses; Provided, That no one shall be paid in any
one year for more than twenty days’ service, or for
more than three hundred miles’ travel.
Carpenters,
blacksmiths,
laborers, and
physician.
Sawmill.
Road, bridges,
etc.
Buildings.
Board of visitors
to be present at
annuity payment,
make inspection,
and report
annually.
Pay.
4la
ARTICLE 8. No person shall be recognized as a
chief whose band numbers less than fifty persons;
and to encourage and aid the said chiefs in preserving
order, and inducing by their example and advice, the
members of their respective bands to adopt the
pursuits of civilized life, there shall be paid to each of
said chiefs annually out of the annuities of said
bands, a sum not exceeding one hundred and fifty
dollars, ($150,) to be determined by their agent ac-
cording to their respective merits.
ARTICLE 9. To improve the morals and industrial
habits of said Indians, it is agreed that no agent,
teacher, interpreter, trader, or other employees shall
be employed, appointed, licensed, or permitted to
reside within the reservations belonging to the
Indians, parties to this treaty, missionaries excepted,
who shall not have a family residing with them at
their respective places of employment or trade within
the agency, whose moral habits and fitness shall be
reported upon annually by the board of visitors; and
no person of full or mixed blood, educated or
partially educated, whose fitness, morally or other-
wise, is not conducive to the welfare of said Indians,
shall receive any benefit from this or any former
treaties, and may be expelled from the reservation.
ARTICLE 10. All annuities under this or former
treaties shall be paid as the chiefs in council may
request, with the approval of the Secretary of the
Interior, until otherwise altered or amended, which
shall be done whenever the board of visitors, by the
requests of the chiefs, may recommend it: Provided
That no change shall take place oftener than once in
two years.
ARTICLE 11. Whenever the services of laborers are
required upon the reservation, preference shall be
given to full or mixed bloods, if they shall be found
competent to perform them.
ARTICLE 12. It shall not be obligatory upon the
Indians, parties to this treaty, to remove from their
present reservations until the United States shall have
first complied with the stipulations of Articles IV and
VI of this treaty, when the United States shall furnish
them with all necessary transportation and subsis-
tence to their new homes and subsistence for six
Chiefs with
bands of less than
fifty not to be
recognized.
Gratuities.
Agent, teachers,
etc., to have
families.
Improper persons
not be have
benefits of
treaties.
Payment of
annuities.
Preference given
to full or mixed
bloods as
laborers.
Indians not to
remove from
present
reservations
until, etc.
42a
months thereafter: Provided, That, owing to the
heretofore good conduct of the Mille Lac Indians,
they shall not be compelled to remove so long as they
shall not in any way interfere with or in any manner
molest the persons or property of the whites:
Provided, That those of the tribe residing on the
Sandy Lake reservation shall not be removed until the
President shall so direct.
ARTICLE 13. Female members of the family of any
government employeie] residing on the reser-
vation, who shall teach Indian girls domestic econ-
omy, shall be allowed and paid a sum not exceeding
ten dollars per month while so engaged: Provided,
That not more than one thousand dollars shall be so
expended during any one year, and that the President
of the United States may suspend or annul this article
whenever he may deem it expedient to do so.
ARTICLE 14. It is distinctly understood and agreed
that the clearing and breaking of land for the
Chippewas of the Mississippi, as provided for in the
fourth article of this treaty, shall be in lieu of all
former engagements of the United States as to the
breaking of lands for those bands, and that this treaty
is in lieu of the treaty made by the same tribes,
approved March | !th, 1863.
In testimony whereof the said Wm. P. Dole and
Clark W. Thompson, on behalf of the United States,
and Chippewa chiefs, Hole-in-the-day and Mis-qua-
dace, on behalf of Indians parties to this treaty, have
hereunto set their hands and affixed their seals this
seventh day of May, A. D. one thousand eight
hundred and sixty-four.
W. P. Dole, Commissioner Indian Affairs.
Clark W. Thompson, Superintendent Indian Affairs.
Que-ze-zance, or Hole-in-the-day, his x mark.
Mis-qua-dace, or Turtle, his x mark.
Signed in presence of-
Peter Roy, special interpreter.
Benjn. Thompson.
Certain females
may be paid as
teachers.
Proviso.
Provisions for
clearing, etc.,
lands to be in
lieu of former
provisions.
[SEAL.]
[SEAL.]
[SEAL.]
[SEAL.]
43a
APPENDIX F
5 MLBSA § 111. Subject matter jurisdiction
(a) The Court of Central Jurisdiction shall have jurisdic-
tion over all civil and criminal matters as prescribed by law.
(b) The Court of Central Jurisdiction is hereby granted
exclusive original jurisdiction over all criminal or civil causes
of action, involving any person, where such grievance or
dispute arises concerning any property personal or otherwise,
located on lands or contiguous waters subject to the
jurisdiction of the Non-Removable Mille Lacs Band of
Chippewa Indians.
(c) The Court of Central Jurisdiction shall have subject
matter jurisdiction over any cause of action that may arise
from unwritten cultural law or a violation thereof. The Court
of Central Jurisdiction however, in the exercise of its
authority to enforce all provisions of unwritten cultural law
and upon the authority it possess as to accord equal justice
shall give full force and effect to 24 MLBSA Chapter 1, if the
provisions of that chapter are not inconsistent with any
custom or cultural law heretofore or hereafter in place in the
determination of cultural causes of action arising pursuant to
any statute of the Non-Removable Mille Lacs Band of
Chippewa Indians.
(d)(1) The Court of Central Jurisdiction shall have jurisdic-
tion over all civil matters in which the Non-Removable Mille
Lacs Band of Chippewa Indians, any of its political
subdivisions or entities, or its officers, appointees or employ-
ees are parties in their official capacity. Nothing herein shall
be construed as a waiver of sovereign immunity of the Band
unless specifically authorized in accordance with Band law or
by specific Band Statute.
(2) The Court of Central Jurisdiction has exclusive juris-
diction over all suits in which Band officials are defendants
where declaratory and equitable relief is sought.
44a
(e) The District Court of the Court of Central Jurisdiction
shall have original jurisdiction over all criminal and civil
matters except as otherwise provided for by law.
(f) The Court of Appeals shall have original jurisdiction
over election disputes pursuant to the Minnesota Chippewa
Tribal Election Ordinance and on issues certified to the Court
of Appeals from foreign jurisdictions.
5 MLBSA § 113. Personal jurisdiction.
The Court of Central Jurisdiction shall have civil jurisdic-
tion over any person, corporation, business organization or
other private entity that:
(a) Transacts business with any member of the Band
within the territorial jurisdiction of the Band;
(b) Engages in any activity which results in injury or
property damage within the territorial jurisdiction of the Mille
Lacs Band;
(c) Engages in any activity which results in a dispute over
the ownership, use, possession or interest in any property
within the territorial jurisdiction of the Band;
(d) Contracts to insure any person, property, corporation,
business organization or risk located within the territorial
jurisdiction of the Band;
(e) Enters into a written or verbal sales or service
agreement within the territorial jurisdiction of the Mille Lacs
Band or where performance of the agreement is to be within
the territorial jurisdiction of the Mille Lacs Band;
(f) Engages in conduct that may affect the environment
or territories under the jurisdiction of the Band or affects the
natural resources of the Band or threatens the health, safety,
peace or welfare of Mille Lacs Band or inhabitants thereof.
45a
APPENDIX G
11 MLBSA § 9. Jurisdictional authority.
The Environmental Protection Commission shall exercise
all the environmental jurisdiction possessed by the Non-
Removable Mille Lacs Bands of Chippewa Indians as stated
herein:
(a) The Non-Removable Mille Lacs Bands of Chippewa
Indians shall exercise concurrent environmental jurisdic-
tion with the United States of America over the air space
encompassing all lands and waters subject to the
jurisdiction of the Band.
(b) The Non-Removable Mille Lacs Bands of Chippewa
Indians shall exercise concurrent environmental jurisdic-
tion with the United States of America over all streams,
lakes, ponds, marshes, watercourses, waterways, wells,
springs, reservoirs, aquifers, irrigation system, drainage
systems and all other accumulations of water, surface
or underground, natural or artificial, public or private,
which are contained within, flow through or border upon
lands of the Mille Lacs Bands of Chippewa Indians.
(c) The Non-Removable Mille Lacs Bands of Chippewa
Indians shall exercise concurrent environmental jurisdic-
tion with the United States of America over:
(1) all lands within the exterior boundaries of the
Mille Lacs Reservation and Sandy Lake Reservation
as established by the Treaty of 1855;
(2) all lands held in trust by the United States of
America for the benefit of the Minnesota Chippewa
Tribe, which are lawfully delegated to the jurisdiction
of the Mille Lacs Bands; and, all lands held in trust
by the United States of America for the benefit of the
Non-Removable Mille Lacs Bands of Chippewa
Indians;
(3) all lands subject to the jurisdiction of the Band
pursuant to federal law, notwithstanding the issuance
46a
of any patent, and including rights-of-way running
through said lands;
(4) all individual allotments for the benefit of any
member of. the Non-Removable Mille Lacs Bands of
Chippewa Indians which are located within the
exterior boundaries of the Mille Lacs and Sandy Lake
Reservations as established by the Treaty of 1855;
(5) all lands held in fee status in the name of the Non-
Removable Mille Lacs Bands of Chippewa Indians
which are located within the exterior boundaries of the
Mille Lacs and Sandy Lake Reservations as estab-
lished by the Treaty of 1855.
(d) The criminai and civil jurisdiction of the Non-Re-
movable Mille Lacs Bands of Chippewa Indians shall
extend to all enrolled members of the Mille Lacs
Bands of Chippewa Indians, enrolled members of the
Minnesota Chippewa Tribe who reside within the
territorial jurisdiction of the Mille Lacs Bands of
Chippewa Indians, Indians from other tribes who enter
the territorial jurisdiction, including Indian Country, of
the Mille Lacs Bands of Chippewa Indians, Indians from
other tribes who enter the territorial jurisdiction of the
Mille Lacs Bands of Chippewa Indians by virtue of
residency, employment or violation of Mille Lacs Band
Statute(s) within the territorial jurisdiction of the Mille
Lacs Bands of Chippewa Indians.
(e) The exercise of civil jurisdiction of the Non-Remov-
able Mille Lacs Bands of Chippewa Indians over non-
Indians, in environmental protection causes of action
shall exist to the extent authorized by the laws of the
United States of America. The criminal jurisdiction of
the Non-Removable Mille Lacs Bands of Chippewa
Indians shall not extend to non-Indians.
(f) The jurisdiction of the Non-Removable Mille Lacs
Bands of Chippewa Indians shall extend to all persons,
political sub-divisions and their officers and agents,
public or private corporations, associations, partnerships
47a
and any other individuals or entities who shall violate
the environmental protection laws of the Band within the
exterior boundaries of the Mille Lacs and Sandy Lake
Reservations or on lands held in trust or fee status in the
name of the Band, as authorized pursuant to the laws of
the United States of America.
48a
APPENDIX H
24 MLBSA § 101. Power to license.
The Corporate Commission shall have the sole power
and authority to license commercial entities who sell or offer
for sale any goods and/or services to person(s) on lands
subject to the jurisdiction of the Non-Removable Mille Lacs
Band of Chippewa Indians. Any persons(s), company(ies),
corporation(s), association(s), partnership(s), cooperative(s),
utility(ies) and any other public or private commercial entity
who desires to sell or offer for sale any goods and/or services
of any material value or to sell or offer for sale the exchange
of property, real or personal, as defined in 24 MLBSA
§ 3302, with any Band member or Indian or any per-
son subject to the jurisdiction of the Mille Lacs Band of
Chippewa Indians; or with the Non-Removable Milie Lacs
Band of Chippewa Indians; or any political sub-division or
entity thereof, shall upon establishing the fact to the
satisfaction of the Corporate Commission that he is a proper
person or entity to engage in such activity, be permitted to do
so under such rules and regulations as the Corporate Commis-
sion may prescribe through the issuance of lawful Orders of
the Commission. Any such Commission Order shall not be
applicable to any commercial entity during the term of any
existing license but shall become effective upon the issuance
of a new license or upon renewal of an existing license.
24 MLBSA § 103. Classes of Licenses.
The Non-Removable Mille Lacs Band of Chippewa
Indians hereby designates the following classes of licenses
which shall be available for any commercial entity who
desires to engage in the sale of any goods and/or services on
lands subject to the jurisdiction of the Band. The following
classes of licenses shall be made available to any person,
company, corporation, association, partner-ship, cooperative,
utility, or financial institution, be it public or private who
49a
seeks to engage in the sale of such goods or services on lands
subject to the jurisdiction of the Non-Removable Mille Lacs
Band of Chippewa Indians. The class of license sought shall
be issued according to the classification of the goods and/or
services sold on said lands.
(a) Retail Sales License. This license is available to a
person who sells any goods and commodities at retail on
lands under the jurisdiction of the Band.
(b) Entertainers License. This license is available to a per-
son who provides entertainment to the public. For example: a
band, theater or dance troupe, etc.
(c) Professional Services License. This license is avail-
able to a person who provides services in the practice of
medicine and surgery, chiropractic, nursing, optometry, psy-
chology, dentistry, pharmacy, podiatry, veterinary medicine,
architecture, engineering, surveying, landscape architecture,
accountancy and law.
(d) Utilities License. This license is available to a person
providing telephone, electrical, water, sewer, gas to the
public.
(e) Public Accommodations License. This license is
available to a person providing lodging, prepared foods or
beverages, and equipment rental to the public.
(f) Hawkers, Peddlers, Transient Merchants License. This
license is available to a person who transacts any temporary
and transient business on lands under the jurisdiction of the
Band including selling goods, wares, merchandise and dis-
tributing literature of any type.
(g) General Service License. This license is available to a
person who provides commercial services to the public, such
as refuse disposal, plumbing, auto or equipment repair, elec-
trical, carpentry, cleaning and maintenance services, personal
care and other like general services.
50a
(h) Special Events License. This license is available to a
person who conducts commercial activity usually on a one
time per annum basis, but not exceeding three times per
annum. Said activity does not occur on a regular or consistent
basis.
(i) _ Miscellaneous License. This license is available to a
person who sells goods or services that do not fall into
another category in subsections (a) to (h).
Sla
APPENDIX I
24 MLBSA § 2. Exclusive original jurisdiction.
(a) The Court of Central Jurisdiction is hereby conferred
exclusive original jurisdiction over all civil causes of action,
involving any person, where such grievance or dispute arises
concerning any property, personal or otherwise, located on
lands subject to the jurisdiction of the Non-Removable Mille
Lacs Band of Chippewa Indians.
(b) The Court of Central Jurisdiction shall have exclusive
original jurisdiction over all civil matters in which the Non-
Removable Mille Lacs Band of Chippewa Indians, any of its
political subdivisions or entities, or its officers, appointees or
employees are parties in their official capacity. Nothing
herein shall be construed as a waiver of sovereign immunity
of the Band unless specifically authorized in accordance with
Band law or by specific Band Statute.
24 MLBSA § 3. Concurrent jurisdiction.
The jurisdiction invoked by this chapter over any person,
cause of action or subject shall be concurrent with any valid
jurisdiction over the same of the Courts of the United States;
provided, however, this chapter does not recognize, grant or
cede jurisdiction to any other political or governmental entity.
24 MLBSA § 4. Application of Uniform Commercial
Code of State of Minnesota
Pursuant to the provisions of 18 MLBSA § 301, the
provisions of Minnesota Statutes Chapter 336, the Uniform
Commercial Code, shall apply to any applicable civil causes
of action which arise pursuant thereto.
24 MLBSA § 5. Truth in Lending Act.
The provisions of the laws of the United States of Amer-
ica relative to truth in lending as set forth in 15 USC 1601, et
seq. shall apply to all persons who are creditors and lessors
52a
as defined by the act. The justices of the Court of Cen-
tral Jurisdiction shall be bound thereby to the provisions of
said act.
24 MLBSA § 6. Consumer Protection Laws of State of
Minnesota
The' Consumer Protection Laws of the State of Minnesota
shall apply as the Consumer Protection Laws of the Non-
Removable Mille Lacs Band of Chippewa Indians. The
justices of the Court of Central Jurisdiction shall be bound
thereby to enforce the provisions of said Consumer Protection
Laws.
53a
APPENDIX J
24 MLBSA § 3309. Unlawful removal or disconnection of
property.
Any creditor be they a person, company, corporation,
association, partnership, cooperative, utility and any other
public or private commercial entity, who absent a lawful
order from the Court of Central Jurisdiction, who shall
attempt to remove or disconnect any property from any
person under the jurisdiction of the Band, shall be deemed to
have committed a property trespass offense in violation of 2
MLBSA § 304(m) and the Solicitor General shall initiate civil
action against said person seeking their removal and
exclusion from lands under the jurisdiction of the Non-
Removable Mille Lacs Band of Chippewa Indians for a
period of time not to exceed 180 days.
* * * *
24 MLBSA § 3501. Applicability.
The replevin procedure set out in this subchapter shall be
utilized for all cases before the Court of Central Jurisdiction.
24 MLBSA § 3502. Claim for immediate delivery of
property
The plaintiff, in an action to recover the possession of
personal property, at the time of issuing the summons or at
any time before answer, may claim the immediate delivery of
such property as provided in this subchapter.
74 MLBSA § 3503. Affidavit.
When an immediate delivery is claimed, an affidavit must
be made by the plaintiff or by someone in his behalf stating
that the plaintiff is the owner of the property claimed, is
lawfully entitled to the possession of it, or that he had a
lawful lien against such property, payment of which is in
54a
default. The facts of such ownership or right to possession
must be set forth along with a detailed description of the
property. Said affidavit must state that the property is
wrongfully detained by the defendant and that the alleged
cause of the detention of the property, according to his best
knowledge, information, and belief that the property has not
been taken for a tax, assessment against the property of the
plaintiff, or, if so seized, that it is by law exempt from such
seizure. Said affidavit must also state the actual value of the
property.
24 MLBSA § 3504. Direction to law enforcement officer.
The plaintiff, after completing and endorsing the affidavit
required by 24 MLBSA § 3503, may require any law
enforcement officer of the Non-Removable Mille Lacs Band
of Chippewa Indians to take the property from the defendant
and deliver it to the plaintiff.
24 MLBSA § 3505. Security furnished by plaintiff.
Before possession of any property may be taken by the
plaintiff, he must furnish to the Court sufficient security in
the form of cash or sureties. The surety shall be at least
double in amount the value of the property as stated in the
affidavit. If the defendant shall be later adjudged the rightful
owner of the property or shall be entitled to possession of the
property, the security provided by the plaintiff shall be used
in any recovery by the defendant against the plaintiff.
24 MLBSA § 3506. Seizure of property.
Upon receipt of the affidavit, endorsement, and security by
the Band law enforcement officer, the officer shall take the
property described in the affidavit, if it be in the possession of
the defendant or his agent, and retain it in his custody. He
shall keep it in a safe place and deliver it to the party entitled
thereto upon receiving his lawful fees and necessary expenses
for keeping the property. If the property of any part thereof be
55a
concealed in a building or enclosure, the officer shall publicly
demand its deliver. If it is not delivered, then the officer
must obtain a search warrant from the Court of Central
Jurisdiction.
24 MLBSA § 3507. Service on defendant.
The officer, at the time of taking any property, shall serve
on the defendant a copy of the affidavit, endorsement, and
proof of security or cash bond and notice of levy showing the
property taken by delivering the same to the defendant
personally, if he can be conveniently found, or to his agent
from whose possession the property is taken; or if neither can
be found, by leaving age and discretion.
24 MLBSA § 3508. Third party claims or return to
defendant.
(a) If the property taken be claimed by any other person
than the defendant or his agent, and such person shall make
an affidavit of his title thereto and right to possession thereto,
stating such right and title, and serve the same upon the
officer, the officer shall not be bound to keep the property or
deliver it to the plaintiff unless the plaintiff shall indemnify
the officer against such claim by deposit with the Clerk of
Court of security in amount and sufficiency as required in the
original affidavit for the delivery. No claim to such property
by any other person than the defendant or his agent shall be
valid against the officer, unless made as provided; and
notwithstanding such claim when so made, he may retain the
property a reasonable time to demand such indemnity.
(b) The defendant may retain or require the return of the
property by giving the Clerk of Court, within three (3) days
after the taking, sufficient security or cash deposit of an
amount not less than was required by the plaintiff for the
delivery.
56a
(c) If the defendant or a third party does not require a
return of the property within three (3) days after the taking
and service of papers on- the defendant, the property shall be
delivered to the plaintiff.
24 MLBSA § 3509. Sureties and deposits.
(a) Sureties may be provided by any person or company
allowed by the Court. Security may be given in the form of a
cash deposit. A receipt shall be given by the Clerk of Court
and the deposit shall remain in the custody of the Court until
the Court shall make an order disposing of it.
(b) The defendant or plaintiff may require the surety of
the other to prove the validity of their sureties. The plaintiff
and defendant shall be given seven (7) days from date of
service of a copy of the affidavit to question the validity of
the surety. If it is not questioned within seven (7) days, it
shall be deemed waived and cannot later be questioned by
either party.
24 MLBSA § 3510. Officer's report.
(a) Within twenty (20) days after taking the property, the
officer shall be notified by the Clerk of the Court in writing to
make a verified report of his proceedings in taking and
disposing of the property, and file the same together with the
original affidavit, endorsement, or security and a notice of his
copy of levy, with the Clerk of the Court.
(b) The failure or neglect of the officer to make such veri-
fied report of his proceedings shall not, however, void his
proceedings under the affidavit and endorsement but shall
render him liable for contempt of court.
57a
APPENDIX K
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA FOURTH DIVISION
CIV. NO. 02-407 JMR/RLF
COUNTY OF MILLE LACS,
Plaintiff,
VS.
MELANIE BENJAMIN, et ai.,
Defendants.
AFFIDAVIT OF B. P. ALLEN, JR.
STATE OF MINNESOTA __)
)
COUNTY OF MILLE LACS )
B. P. Allen, Jr. states under oath as follows:
1. I am currently the Chairman and have served in the
capacity of President, CEO and/or Director of the First
National Bank of Milaca (the “Bank”) for approximately 46
years.
2. The Bank is federally chartered and is located in Milaca,
Minnesota.
3. The Bank was founded in 1897 and is a family-con-
trolled business.
4. The Bank owns and operates a branch in Isle, Minnesota
(the “Isle Branch”).
58a
5. The Isle Branch represents approximately one-third of
the Bank’s loans and deposits, and the Isle Branch has
originated approximately 189 loans secured by approximately
$11,000,000 in real estate.
6. The Bank’s market area extends throughout the former
Mille Lacs Reservation boundaries, including Kathio, South
Harbor and Isle Townships
7. A substantial portion of the Isle Branch loans are
secured by real estate located in Kathio, South Harbor and
Isle Townships.
8. The Isle Branch does business with several members of
the Mille Lacs Band of Chippewa (the “Band”).
9. In 1992, the Band contacted Isle and Onamia area
businesses and stated its intention to require all businesses
operating within the boundaries of the former Mille Lacs
Reservation to be licensed by the Band.
10. The Band recently contacted Isle and Onamia area
businesses and stated that the Band has the power to regulate
all commercial activities on lands subject to the Band’s
jurisdiction. |
11. The Band’s assertion of regulatory authority over
property the Bank owns or on which it holds a security
interest will depress the market value of that property. As a
result, the Bank is concerned about taking a mortgage interest
on property that is adjacent to land owned by the Band due to
the potential for conflicting land use regulations. The Band’s
efforts to regulate dealings with its members, through its
licensing system, will also affect the Bank’s business and its
profitability.
12. The Bank seeks to intervene in the County of Mille
Lacs’ action against the Band to protect the value of the
property it owns or on which it has a security interest which
will result if the former 1855 reservation is found to exist
59a
along its original boundaries. Similarly, if the Band has the
authority to license businesses within the area of the former
1855 reservation, the Bank’s livelihood will be adversely
affected.
13. Attached to my affidavit as Exhibits are true and
correct copies of the following:
Exhibit 1: March 23, 1992 Letter from the Mille Lacs
Band of Chippewa Indians;
Exhibit 2: Letter from Molly Big Bear on Behalf of the
Mille Lacs Band of Chippewa Indians;
Exhibit 3: Milk Lacs Band Stat. Ann. Index 2, Title 18,
§ 103.
This concludes my affidavit.
By: B.P. Allen, Jr.
B.P. ALLEN, JR.
Subscribed to and sworn before me
This 3rd day of May, 2002.
/s/ Patricia A. Packard
PATRICIA A. PACKARD
Notary Public
60a
EXHIBIT NO. 1
[SEAL]
MILLE LACS BAND OF CHIPPEWA INDIANS
Corporate Commission
March 23, 1992
Dear Madame/Sir:
The Corporate Commission Of the Miile Lacs Band of
Ojibwe Indians is currently in the process of licensing all
organizations doing business upon tribal lands. Tribal law
requires all organizations to be licensed pursuant to Band
Statute 1090-MLC-47.
It is the goal of the Corporate Commission and of the Band
to establish an effective system of regulation concerning
business transactions within the boundaries of tribal
territories. To achieve this goal, all organizations must be
issued vendors licenses.
A vendors license permits organizations to do business on
tribal lands. Just as Minnesota licenses businesses, so too,
does the Mille Lacs Band of Ojibwe Indians. The licensing
statute’s purpose (Section 1.01 of 1090-MLC-47) is as fol-
lows: The Band Assembly hereby finds and determines that
the regulation and licensure of all persons, companies,
corporations, associations, partnerships, cooperatives, utili-
ties, and any other public or private commercial entity who
engage in the sale of any goods and/or services with any
constituent band of Non-Removable Mille Lacs Band of
Ojibwe Indians is an effective way to regulate commercial .
activity on lands under the jurisdiction of the band and that
such regulation is vital to economic security, political
integrity and general welfare of the members of any
constituent band of the Non-Removable Mille Lacs Band of
Ojibwe Indians.
6la
Section 7 of said statute list the fee schedule, which is
based on the annual gross sales of business transactions done
with the Band. A copy of the fee schedule is enclosed to aid
in determining the fee sum. Also enclosed is the licensing
application, which the organization will submit to the
Corporate Administrator, along with the proper licensing fee.
All organizations have 90 calendar days from the above date,
in which to become licensed.
Should you have any questions or concerns, feel free to
contact me at (612) 532-7777, Ext. 137. Thank you in
advance for your cooperation.
Sincerely,
/s/ Melissa C. Hill
Corporate Administrator
62a
EXHIBIT NO. 2
[SEAL]
MILLE LACS BAND OF CHIPPEWA INDIANS
Executive Branch of Tribal Government
Corporate Commission
Dear Madam/Sir
It is the goal of the Mille Lacs Band and the Corporate
Commission of the Mille Lacs Band to establish an effective
system of regulation concerning business transactions within
the boundaries of tribal territories. To achieve this goal, the
Corporate Commission of the Mille Lacs Band of Ojibwe
Indians is currently in the process of updating all licenses of
organizations doing business upon tribal lands.
According to the Mille Lacs Band Statutes Annotated
(MLBSA), The Corporate Commission shall have the sole
power and authority to license commercial entities who sell
or offer for sale any goods and/or services to person(s) on
lands subject to the jurisdiction of the Non-Removable Mille
Lacs Band of Chippewa Indians. Any person(s), com-
pany(ies), corporation(s), association(s), partnership(s), coop-
erative(s), utility(ies) and any other public or private
commercial entity who desires to sell or offer for sale any
goods and/or services of any material value or to sell or offer
for sale the exchange of property, real or personal, as defined
in 24 MLBSA § 3302, with any Band member or Indian or
any person subject to the jurisdiction of the Mille Lacs Band
of Chippewa Indians; or with the Non-Removable Mille Lacs
Band of Chippewa Indians; or any political subdivision or
entity thereof, shall upon establishing the fact to the
satisfaction of the Corporate Commission that he is a proper
person or entity to engage in such activity, be permitted to do
so under such rules and regulations as the Corporate Com-
mission may prescribe through the issuance of lawful Orders
63a
of the Commission. Any such Commission Order shall not be
applicable to any commercial entity during the term of any
existing license but shall become effective upon the issuance
of a new license or upon renewal of an existing license.
When an application for a license or permit is filed with the
Commissioner of Corporate Affairs, the application shall be
accompanied by a non-refundable fee of ten dollars ($10.00).
The Corporate Commission shall have ninety days from the
date of filing to approve or deny any application Not-
withstanding, the Commissioner of Corporate Affairs shall
issue a temporary license valid for ninety days upon receipt
and filing of said application. A Vendors license permits
organizations to do business on tribal lands. Tribal law
requires all organizations to be licensed pursuant to 18
MLBSA § 101. An Annual Vendor license renewal form will
be issued the month prior to your Temporary License
expiration date.
Enclosed you will find an explanation of the Classes of
licenses, and a Temporary Vendor License application to do
business with the Mille Lacs Band of Chippewa -Indians.
Please fill it out and return it to the address on the bottom,
along with the $10.00 application fee.
If you should have any questions or concerns, please
contact me at (320) 532-8832. Thank you for your
cooperation and patronage.
Sincerely,
/s/ Molly Big Bear
MOLLY BIG BEAR
Business Regulation Officer
Corporate Commission
Enc.
64a
EXHIBIT NO. 3
The Non-Removable Mille Lacs Band of Chippewa
Indians hereby designates the following classes of licenses
which shall be available for any commercial entity who
desires to engage in the sale of any goods and/or services on
lands subject to the jurisdiction of the Band. The following
classes of licenses shall be made available to any person,
company, corporation, association, partnership, cooperative,
utility, or financial institution, be it public or private who
seeks to engage in the sale of such goods or services on lands
subject to the jurisdiction of the Non-Re
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