# Petition for Writ of Certiorari — First National Bank of Milaca v. Benjamin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1005%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 956 ## Text 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 s [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1005%3A1. Public record. Not legal advice.