Opposition Brief — Mille Lacs County, Minnesota v. Benjamin

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Nos. 04-228 & 04-229

IN THE

Supreme Court of the United States

FIRST NATIONAL BANK OF MILACA,

Petitioner,

-and-

COUNTY OF MILLE LACS,

Petitioner,

MELANIE BENJAMIN, et al.

Respe mdents

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

Unitep STATES Court OF APPFALS

FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION

Marc D. SLONIM

Counsel of Record

Joun B. ARUM

ZIONTZ, CHESTNUT, V ARNELL,

BEeRLEY & SLONIM

2101 Fourth Avenue

Suite 1230

Seattle, WA 98121

(206) 448-1230

Attorneys for Respondents

189845 cel

COUNSEL PRESS

(R00) 274-3321 © (800) 359-0859

TABLE OF CONTENTS

Page

Teldec of Cited Authorities. ow... ceca il

a er ere ree 2

Reasons for Denying the Petitions .............. 10

A. The Lower Courts’ Decisions In This Case

Do Not Conflict with Any Decision of This

Court or Any Other Court. .............. 11

B. Federal Courts Have Had No Difficulty in

Applying Article III Standing Requirements

in Reservation Disestablishment Cases. ... 17

C. The Lower Courts Did Not Err in

Determining Petitioners Failed to Present

Specific Evidence of Injury in Response to

Respondents’ Summary Judgment Motion.

one Na nok he tae ea ae ae ee a kt 19

1. Enforcement of State and Local Laws. .. 19

2. Enforcement of Band Laws. ......... 20

Bi PN WIE 550k coeur aes ewe 21

ee. BR er ee ee 22

NR Ovi a trea Se Oe ee er eee 23

TABLE OF CITED AUTHORITIES

Cases:

Association of Property Owners/Residents of Port

Madison v. Individual Council Members of the

Suquamish Tribal Council, 79 Fed. Appx. 126,

2003 WL 22098043 (9th Cir. 2003) .........-.

Atkinson Trading Co. v. Shirley, 532 U.S. 645

CRIA os ic sc ae Eee ha oe ee

Babbitt v. United Farm Workers, 442 U.S. 289

Liesc, PEPE eer e Teor ere

Baker Elec. Co. v. Chaske, 28 F.3d 1466 (8th Cir.

hc | renner rs ray rer es a

Brooke Group v. Brown & Williamson Tobacco,

$09 U.S. 209 (1993) ............... des

Brown-Outagamie-Oneida Jurisdiction Commission

v. Powless, No. 85-C-1052 (E.D. Wis. 1990) ...

Cass County v. United States, 570 F.2d 737 (8th Cir.

EP ican babs Rae OA a Oe ae Se Ce Ras

City of New Town vy. United States, 454 F.2d 121

(le Sy i ore ee rrr rr ree 13,

Clinton v. City of New York, 524 U.S. 417 (1998) ...

DeCoteau v. District Court, 420 U.S. 425 (1975) ..

Page

14, 18

14,17

Cited Authorities

Page

Diamond v. Charles, 476 U.S. 54 (1986) ......... 23

Friends of the Earth v. Laidlaw Environmental

Services, 528 U.S. 167 (2000) ............... 1]

Hagen vy. Utah, 510 U.S. 399 (1994) ............ 17

Lake Carriers’ Ass'n v. MacMullan, 406 U.S. 498

ee Coa eas eek ne vevncebwh bias 12

Lujan v. Defenders of Wildlife, 504 U.S. 555

ee eres wi hanes decse weeks ii. 23

Beattie vy. Arnett, 412 U.S. 461 (19735) ..........55 17

Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996) .. 16

Mille Lacs Band of Chippewa Indians v. Minnesota,

989 F.2d 994 (8th Cir. 1993) ................ 16, 17

Minnesota v. Mille Lacs Band, 526 U.S. 172 (1999)

cos dogs Mog Gps, ae a a 6

Montana v. United States, 450 U.S. 544 (1981) ... 3

Nevada v. Hicks, 533 U.S. 353 (2001) ........... 3, 23

Northern States Power v. Prairie Island Mdewakaton

Sioux Indian Community, 781 F. Supp. 612 (D.

Minn. 1991), aff'd, 991 F.2d 458 (8th Cir. 1993)

Cited Authorities

Page

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

Ly ce | PERE R Serre artery es Pee es 2 2

Oneida Indian Nation v. City of Sherrill, 337 F.3d

139 (2nd Cir. 2003), cert. granted, 124S. Ct. 2904

+. 1.) er ae errr ewe tar ee 13

Pennell v. San Jose, 485 U.S. 1 (1988) ........--. 12

Pennhurst State School & Hosp. v. Halderman,

465 U.S. BO (1GBO) .. «6 once cc cc cc ere rwccens: 14

Raines v. Byrd, 521 U.S. 811 (1997) .......----- 12

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) ......-----+5. 12-13, 17

Ruckelshaus v. Monsanto, 467 U.S. 986 (1984) ... 12

Seymour v. Superintendent, 368 U.S. 351 (1962) .. 18

Solem v. Bartlett, 465 U.S. 463 (1984) .......... 17

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329

FIGS ok oc cases ekg wenes sess e eas eaee ees 13,17

Tenneco Oil Co. v. Sac & Fox Tribe of Indians of

Okl., 725 F.2d 572 (10th Cir. 1984) ........... 16

Cited Authorities

Thomas v. Anchorage Equal Rights Comm'n,

220 F.3d 1134 (9th Cir. 2000), cert. denied.

FIR WM. BORO CROMED Fieve cdeviwtee telus

Thomas v. Union Carbide, 473 U.S. 568 (1985) ...

United States v. Grey Bear, 828 F.2d 1286 (8th Cir.),

vacated in other respects, 836 F.2d 1088 (8th Cir.

lg ee ee ee eer ce gre Ee ot ete

United States v. Minnesota, 466 F. Supp. 1382 (D.

Minn. 1979), aff'd sub nom. Red Lake Band of

Chippewa Indians v. Minnesota, 614 F.2d 1161

(8th Cir.), cert. denied, 449 U.S. 905 (1980) .

United States v. Webb, 219 F.3d 1127 (9th Cir. 2000),

cert. denied, 531 U.S. 1200 (2001) ...........

Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464

i *) Sera: ye eng ee oe rn yee

Virginia v. Hicks, 539 U.S. 113 (2003) ..........

Weisgram v. Marley, 528 U.S. 440 (2000) ........

White Earth Band of Chippewa Indians v. Alexander,

518 F. Supp. 527 (D. Minn. 1981), aff'd, 683 F.2d

1129 (8th Cir.), cert. denied, 459 U.S. 1070

Li”: RENE EC oP ancl oo

Cited Authorities

Page

Wisconsin v. Baker, 464 F. Supp. 1377, aff'd, 698

F.2d 1323 (7th Cir.), cert. denied, 463 U.S. 1207

ROMS cocker cee see wes sys e ee nee tee se es 15, 16

Statutes:

2 MLBSA § 3001(a) ...---eeee cece eee teens 2

TMLDOAK § 3008 vais ison ews Care een ees 2

SWALBGA'S 101 iis bce cces co vances veaee es 2

5 MLBSA § 111(b) .... eee e eres ere e teens 2

SC MALIBA 6 113 casos sss s sae es nen eeae We eees 2

11 MLBSA § 1002 .......---eee ere eeeeeeeees 2

18 MLBSA 6 101 .... ccc eee sense eee ew eres: 2,4, 6

tit) e 2 rene ree 2

24 MLBSA § 3301 .....-- cee cere eee eeeeenees 2

24 MLBSA § 3309 ....---- eee reer etter ete? 2

Rules:

Federal Rule of Civil Procedure 24(a) .....-.+++> 16

Federal Rule of Civil Procedure 56(e) ....-..+++> 21

Petitioners County of Mille Lacs (“County”) and First

National Bank of Milaca (““Bank’’) sued respondents, five

officials of the Mille Lacs Band of Ojibwe Indians (“Band”),

for a declaration that the Mille Lacs Indian Reservation has

been disestablished. After discovery, respondents moved for

summary judgment on jurisdictional grounds. The district

court, in a detailed opinion, held petitioners lacked standing

and the case was not ripe. Bank App. 9a-27a (Rosenbaum,

C.J.). On de novo review, a unanimous Eighth Circuit panel

held “the district court correctly concluded [petitioners]

lacked standing” and ordered the case dismissed without

prejudice. /d. 4a, 5a, 7a (Riley, Bowman, and Smith, JJ).

In reaching these conclusions, the district court and court

of appeals applied well-settled principles governing Article

III standing. Petitioners do not challenge (or even discuss)

these principles. Instead, they point to cases in which courts

have resolved reservation disestablishment claims on the

merits. However, the fact that courts have resolved such

claims in other cases does not demonstrate petitioners had

standing in this case. Federal courts have had no difficulty

in applying the standing requirement in reservation

disestablishment cases, and the lower courts’ determination

that petitioners lacked standing in this case conflicts with no

decision of this or any other court. Because the consistent,

straightforward application of settled principles of standing

in reservation disestablishment cases does not present an

important federal question requiring this Court’s intervention,

the dismissal of this case without prejudice does not warrant

certiorari.

STATEMENT OF THE CASE

In the early 1980s, the Mille Lacs Band formed a

separation-of-powers government, and began adopting

written statutes regulating its affairs. See Resp. 8th Cir. App.

170. Most of these statutes were adopted in the mid-1980s,

nearly 20 years ago, and were re-codified and published in

1995. Id. 168, 170, 213-14.

The Band’s statutes do not assert jurisdiction over all

persons within the boundaries of the Mille Lacs Indian

Reservation, as established in 1855. Rather, they typically

apply to persons and on lands or territories “under the

jurisdiction” of the Band. See, e.g., 2 MLBSA §§ 3001(a),

3003 (exclusion ordinance) (Bank 8th Cir. App. 93-94);

5 MLBSA 8§ 101, 111(b), 113 (Band court jurisdiction)

(Bank 8th Cir. App. 107-12); 11 MLBSA § 1002 (solid waste

regulation) (Bank 8th Cir. App. 242); 18 MLBSA § 101

(business licensing) (Bank 8th Cir. App. 67); 24 MLBSA § 1

(civil causes of action) (Bank 8th Cir. App. 117); 24 MLBSA

§§ 3301, 3309 (creditor remedies) (Bank 8th Cir. App. 181-

84). This approach is common in Indian country, where the

personal and territorial scope of tribal jurisdiction can vary

depending on who (tribal members, nonmember Indians, or

other nonmembers) is being regulated and the purpose of

the regulation, and can vary over time depending on judicial

decisions, the acquisition of trust lands, and other factors.

In 1978, this Court held tribes lack criminal jurisdiction

over nonmembers. Oliphant v. Suquamish Indian Tribe,

435 U.S. 191 (1978). Since then, the Court has held tribes

generally lack civil jurisdiction over nonmembers as well:

‘Where nonmembers are concerned, the ‘exercise of tribal power

beyond what is necessary to protect tribal self-government or

to control internal relations is inconsistent with the dependent

status of the tribes, and so cannot survive without express

congressional delegation.”” Nevada v. Hicks, 533 U.S. 353, 359

(2001), quoting Montana v. United States, 450 U.S. 544, 564

(1981) (emphasis added by the Hicks Court).

Thus, when it comes to nonmembers, a tribe’s “territorial

jurisdiction” is not co-extensive with its reservation boundaries.

For example, in Atkinson Trading Co. v. Shirley, 532 U.S. 645

(2001), the Court held a tribe could not tax a nonmember doing

business on non-Indian fee land within a reservation. The Court

stated an “Indian tribe’s sovereign power to tax — whatever its

derivation — reaches no further than tribal land.” Jd. at 653

(emphasis added). Indeed, the Hicks Court observed that

“{h]itherto, the absence of tribal [land] ownership has been

virtually conclusive of the absence of tribal civil jurisdiction;

with one minor exception, we have never upheld under Montana

the extension of tribal civil authority over nonmembers on non-

Indian land.” 533 U.S. at 360.

For these reasons, the Band’s statutes cannot fairly be read

as asserting jurisdiction over nonmembers throughout the 1855

Reservation. The Band’s current Chief Executive, Melanie

Benjamin, interprets references in the Band’s statutes to the

“territorial jurisdiction” of the Band and to “property subject to

the jurisdiction of the Band” as references to Band-owned lands.

Resp. 8th Cir. App. 181c-d. In light of this Court’s decisions,

Ms. Benjamin believes the Band’s statutes “pertain to the

members of the Mille Lacs Band Reservation. The enrolled

members. And how we govern ourselves. So, with that, the

answer [is] that those laws are directed towards the members of

the Mille Lacs Band.” Jd. 179.

Although they have been on the books for nearly 20

years, the Band has never applied or threatened to apply its

laws to the County or the Bank. The Band only applies its

laws to nonmembers who choose to do business with the

Band on Band lands. This assertion of jurisdiction does not

rest on the status of the 1855 Reservation.

For example, within the Band’s separation-of-powers

government, its Corporate Commission has “the sole power

and authority to license commercial entities who sell or offer

for sale any goods and/or services to person(s) on lands

subject to the jurisdiction of the [Band].” 18 MLBSA § 101

(Bank 8th Cir. App. 67). A person or entity who desires

to sell goods or services to the Band, a Band member or

“any person subject to the jurisdiction of the [Band]. .. shall

_.. be permitted to do so under such rules and regulations as

the Corporate Commission may prescribe.” Jd.

Under these provisions, the Band’s Corporate

Commission developed a business-licensing program in the

early 1990s, coincident with the development of the Band’s

casino gaming enterprises. Resp. 8th Cir. App. 127 ({ 4).

The licensing program was designed to collect background

information on persons doing business with the Band, to

enable the Band to protect the reputation and viability of its

casinos. Jd. The Commission’s requirement that businesses

obtain a Band license was not based on a business’s location

within the 1855 reservation; the requirement was applied only

to businesses that chose to provide goods or services to the

Band on Band lands. /d. ({{ 3-4).

The Bank focuses on, but mischaracterizes, two letters

regarding the Band’s licensing program. Bank Pet. at 9. Ina

March 23, 1992, letter, the Band’s Corporate Administrator

wrote that the Corporate Commission was “in the process of

licensing all organizations doing business upon tribal lands.”

Bank App. 60a (emphasis added). The letter quotes the

preamble to the Band’s licensing statute, in which the Band’s

legislative body found that licensing persons and entities

“who engage in the sale of any goods and/or services with

any constituent band of the Non-Removable Mille Lacs Band

of Ojibwe Indians is an effective way to regulate commercial

activity on lands under the jurisdiction of the band.” Jd.

(emphasis added). The letter was sent only to those persons

and entities that had business dealings with the Band, Resp.

8th Cir. App. 127 (§ 3), and, as the Bank admitted, was not

sent to the Bank. Jd. 124 (¥ b).

In a 2001 letter, the Corporate Commission’s current

Business Regulation Officer, Molly Big Bear, wrote that it is

the Band’s goal “to establish an effective system of regulation

concerning business transactions within the boundaries of

tribal territories.” Bank App. 62a. The letter states the

Commission is “in the process of updating all licenses of

organizations doing business upon tribal lands,” and encloses

a “Temporary Vendor License application to do business with

the Mille Lacs Band of Chippewa Indians.” Jd. 62a-63a

(emphasis added). Like the 1992 letter, Ms. Big Bear’s letter

was “sent only to those business entities — whether located

on or off [the] Reservation — that have expressed an intent to

do business with the Band.” Resp. 8th Cir. App. 32 (4 5).

The Bank admitted it did not receive this letter either.

Id. 124(§ b).

Ms. Big Bear testified in a deposition that her understanding

of the phrase “within the boundaries of tribal territories” refers

to the “1855 boundaries,” and that, under 18 MLBSA § 101 the

Band’s Corporate Commission “has the power to license anyone

who wishes to provide goods or services to any member of the

Mille Lacs Band.” Resp. 8th Cir. App. 185, 190 (emphasis

added). Ms. Big Bear also testified, however, that the Corporate

Commission has never exercised this alleged power, but instead

has sought only to license those businesses that are doing

business with the Band. Jd. 32-33 ({] 4-9), 186, 188, 191-95.

There is no evidence the Band has ever sent a license application

to a business that was not seeking to do business with the Band,

that is has ever told such a business that it was required to obtain

a license from the Band, or that it has ever taken any action

against such a business because it did not obtain a license from

the Band.

. 3

Soon after this Court affirmed the Band’s treaty hunting,

fishing and gathering rights in Minnesota v. Mille Lacs Band,

526 U.S. 172 (1999), the Band’s opponents began claiming the

Band was threatening to regulate non-Indians on non-Ind.2n

lands within the 1855 Reservation. In January 2000, then-Mille

Lacs County Attorney Janelle Kendall found “widespread

misinformation” about the Band’s ability to tax, prosecute and

zone non-Indians was creating civic unrest and a public safety

risk. Resp. 8th Cir. App. 69, 73 (emphasis added). Concerned

that County residents were being ‘intimidated or pressured . . .

to participate in political activity currently underway regarding

__theseissues,” Ms. Kendall undertook to advise the County Board

“regarding the general legal ability of the Mille Lacs Band to

affect the daily living situation of non-Indian County residents.”

Id. 69.

Ms. Kendall found the Band had nor sought to tax or

regulate any businesses other than those that chose to do business

with the Band. /d. at 70. Further, she stated that, other than

regulation of underground injection wells, she was “unaware

of the Mille Lacs Band ever attempting to exercise any other

civil or regulatory jurisdiction, including attempted taxation,

regarding any non-Indian in Mille Lacs County.” Jd. at 70-71

(emphasis in original).' Based on her analysis of the Band’s

legal authority, Ms. Kendall concluded that, even if the

Reservation continued to exist, the Band could not tax, zone or

prosecute non-Indians within its boundaries. Jd. 71-72.

Ms. Kendall’s memorandum notwithstanding, the County

retained outside counsel and filed suit against five Band officials

in 2002, seeking a declaration that the original boundaries of

the Mille Lacs Reservation have been disestablished. County

8th Cir. App. 44. The Bank intervened seeking the same relief.

Resp. 8th Cir. App. 24. Neither disputed the “reservation” or

“Indian country” status of trust lands within the original

Reservation boundaries. Bank App. 1 1a.’

1. Although the Environmental Protection Agency (“EPA”) had

approved the Band’s application to develop a program regulating

underground injection wells on the Reservation, the Band never adopted

the program. Instead, it negotiated with EPA and the Minnesota Pollution

Control Agency (“MPCA”) for continued Federal regulation of such

wells, with technical assistance from the Band and MPCA. Resp. 8th

Cir. App. 151 (§ 25). The Band has applied for “treatment-as-a-state”

status under other environmental programs so that it can receive research

and development funding from EPA, but has not sought to implement

any other regulatory program. /d. 198-201.

2. After this lawsuit was filed, local real estate agents began

disclosing that the County had filed a lawsuit “in a dispute over the

boundaries” of the Reservation, while noting that the “Band has stated

publicly that [it] would not have jurisdiction or taxing power over non-

band members who own property in the disputed area.” County App.

206a (emphasis in original).

After completion of initial discovery, respondents moved

for summary judgment on standing, ripeness, sovereign

immunity and indispensable party grounds. The district court

dismissed the case, finding petitioners lacked standing and

the case was not ripe. Petitioners’ primary claim of injury

arose out of threatened regulation by Band ordinances.

Bank App. 16a. The court found this claimed injury was

not “actual, concrete, or imminent,” since the Band had

“neither threatened nor demonstrated an intent to enforce its

ordinances beyond its 4000 acres [of trust lands].” Jd. 16a-

17a. Nor did the text of the Band ordinances cited by

petitioners establish threatened or pending enforcement, since

they contained only one reference to the 1855 Reservation

and asserted jurisdiction only to the extent authorized by

Federal law. Jd. 18a & n.8.

The court likewise rejected the County’s claim that its

ability to protect public safety had been harmed. The County

Sheriff’s deposition testimony indicated the Band had taken

no actions that adversely affected the County’s ability to

enforce state or county law, and the Band and its members

had consistently complied with County zoning regulations

and state traffic laws. Jd. 19a. The court rejected the

proposition that Band compliance “under protest” injured

the County, as no legal precept supported the theory that

“compliance with County law constitutes injury.” Jd. 20a

(emphasis in original).

The County also alleged injury on the grounds that it

might be subject to liability in a future lawsuit challenging

its enforcement of civil regulatory laws against Band

members on the Reservation. Because no such lawsuit has

been filed (or threatened), the court found this “amorphous

threat of future liability” insufficient to establish injury in

fact. Id. 20a-2 1a.

Finally, the court rejected petitioners’ arguments that the

reservation boundary dispute had adversely affected the value

of the real property interests within the reservation and that

such an effect could fairly be attributed to the challenged

conduct of respondents. /d. 21a-22a.

A unanimous panel of the Eighth Circuit Court of

Appeals affirmed. Bank App. 2a. The court reviewed the

district court’s decision de novo, id. 4a, and found it had

“correctly concluded that [petitioners] lacked standing.”

Id. 5a. The Bank’s concerns regarding potential Band

regulation did not establish injury in fact but at best “reflect

speculative harms based upon the assumed future intent of

the Band.” Jd. 6a. For its part, the County was “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,” and “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.” Jd.

The court reversed the district court in one respect: it

held that the dismissal of the case should be without

prejudice. /d. 6a-7a. The court subsequently denied petitions

for panel and en banc rehearing. /d. 28a.

REASONS FOR DENYING THE PETITIONS

Petitioners do not challenge (and do not even discuss)

the principles of standing applied by the district court and

the court of appeals in this case. The sole issue presented 1s

whether the lower courts properly applied these correctly

stated legal principles to the particular facts of the case.

This factually intensive issue does not warrant certiorari for

three reasons.

First, petitioners fail to show that the lower courts’

application of Article III’s standing requirement in this case

conflicts with any decision of this or any other court.

Petitioners’ observation that reservation disestablishment

claims have been decided on the merits in other cases does

not demonstrate any such conflict, since the resolution of a

particular issue in one case does not demonstrate the issue is

justiciable in another case.

Second, petitioners fail to show that the federal courts

have had any difficulty applying Article III’s standing

requirement in reservation disestablishment cases. The lower

federal courts’ consistent application of the standing

requirement in such cases does not present an important

federal question warranting this Court’s review.

Third, petitioners’ claim that the lower courts misapplied

the standing requirement in this case lacks merit. The lower

courts’ determination that petitioners failed, in response to

respondents’ summary judgment motion, to produce specific

evidence of injury, is supported by the record and provides

no basis for certiorari.

A. The Lower Courts’ Decisions In This Case Do Not

Conflict with Any Decision of This Court or Any

Other Court.

Article III limits the “judicial power” of the United States

to the resolution of “cases” and “controversies.” Valley Forge

Christian College v. Americans United for Separation of

Church and State, 454 U.S. 464, 471 (1982). The core

component of standing is “an essential and unchanging part”

of the case-or-controversy requirement. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992). To establish standing,

a party must establish:

(1) it has suffered an ‘injury in fact’ that is

(a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action

of the defendant; and (3) it is likely, as opposed

to merely speculative, that the injury will be

redressed by a favorable decision.

Friends of the Earth v. Laidlaw Environmental Services, 528

U.S. 167, 180-81 (2000); Lujan, 504 U.S. at 560-61.

The elements of standing are “an indispensable part of

the plaintiff’s case,” and “must be supported in the same way

as any other matter on which the plaintiff has the burden of

proof, i.e. with the manner and degree of evidence required

at the successive stages of the litigation.” Lujan, 504 U.S. at

561. In responding to a summary judgment motion, a plaintiff

must set forth by affidavit or other evidence “specific facts”

that demonstrate its standing. Jd.

The mere existence of a statute that might someday be

applied to a plaintiff is insufficient to confer standing.

E.g. Lake Carriers’ Ass'n v. MacMullan, 406 U.S. 498, 507

(1972) (“justiciable controversy does not exist where

‘compliance with [challenged] statutes is uncoerced by risk

of their enforcement”); Thomas v. Anchorage Equal Rights

Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)

(neither mere existence of statute nor generalized threat of

prosecution creates Article III case or controversy), cert.

denied, 531 U.S. 1143 (2001). Instead, a plaintiff must present

“specific facts” showing a “realistic danger” that defendants

will enforce their laws in a way that “directly injur[es]” the

plaintiff. Pennell v. San Jose, 485 U.S. 1, 8 (1988); Babbitt

v. United Farm Workers, 442 U.S. 289, 298 (1979).

Petitioners do not challenge, or even discuss, these

principles. Instead, they argue the dismissal of this

case conflicts with other cases in which reservation

disestablishment claims were decided on the merits.

However, the fact that a particular issue is justiciable in one

case does not mean it is justiciable in every case in which it

is raised. For example, the constitutionality of the Line Item

Veto Act was justiciable in Clinton v. City of New York, 524

U.S. 417, 436 (1998), but not in Raines v. Byrd, 521 U.S.

811, 830 (1997), where plaintiffs did not establish a

sufficiently concrete injury to demonstrate standing.

Similarly, a challenge to a federal arbitration scheme was

justiciable in Thomas v. Union Carbide, 473 U.S. 568, 579-

81 (1985), but not in Ruckelshaus v. Monsanto, 467 U.S.

986, 1019-20 (1984), where the plaintiff did not allege it

had been compelled to resort to arbitration.

The principal case on which petitioners rely here,

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), does not conflict at all with the decisions in this

case. In that case a tribe sued to establish the continued

existence of its reservation. The tribe alleged specific,

concrete injury because state and county officials were

“exercising both civil and criminal jurisdiction over [tribal]

members.” 375 F. Supp. at 1066 (emphasis added). As the

district court explained in this case, Rosebud “involved

explicit efforts by one sovereign to exercise particular powers

beyond [its] lawful jurisdiction; [it] did not present abstracted

concerns over reservation boundaries.” Bank App. 25a-26a.

Similarly, in South Dakota v. Yankton Sioux Tribe, 522

U.S. 329, 340-41 (1998), a tribe brought suit after a state

agency issued a permit for a landfill within the historic

boundaries of its reservation. The Bank (Pet. at 18) notes

that the tribe did not pursue its request for an injunction on

appeal, but this does not detract from the fact that specific

state action — the issuance of the permit — had injured the

tribe and gave it standing to sue.’

The only other reservation disestablishment case

petitioners cite is City of New Town v. United States, 454

F.2d 121 (8th Cir. 1972). In that case a city alleged three

specific injuries from a purported expansion of federal and

tribal jurisdiction over a disputed portion of a reservation:

(1) loss of jurisdiction over Indians within city limits;

(2) loss of “revenue derived from licensing the sale of

alcoholic beverages”; and (3) impairment of contractual

3. The Bank also cites Oneida Indian Nation v. City of Sherrill,

337 F.3d 139 (2nd Cir. 2003), cert. granted, 124 S. C . 2904 (2004).

In that case, a tribe sued after a city imposed property taxes on tribal

properties, purchased the properties at tax sales, recorded deeds, and

started formal eviction proceedings. 337 F.3d at 144.

obligations relating to bonds and warrants backed by property

tax revenues. County 8th Cir. App. 135-36. The record does

not indicate that defendants disputed these allegations, and

the court did not address standing or justiciability. In Cass

County v. United States, 570 F.2d 737, 741 n.4 (8th Cir. 1978),

the Eighth Circuit held New Town did not support an

argument that a case or controversy existed because

“{j]usticiability was never considered as an issue.”

New Town provides no basis for a grant of certiorari in

this case. First, because New Jown was an Eighth Circuit

case, it does not present a conflict between the circuits."

Second, because the plaintiff made specific, undisputed

allegations of injury, the New Town court did not reach the

issue presented in this case: whether petitioners substantiated

their claims of injury when those claims were challenged in

respondents’ motion for summary judgment. Since the New

Town court did not address this issue, there is no conflict.

Third, because New Town does not discuss Article Ill

standing, it does not set an affirmative precedent that standing

exists in similar cases. See Pennhurst State School & Hosp.

v. Halderman, 465 U.S. 89, 119 (1984).

Petitioners cite several other cases in which courts

adjudicated challenges to particular tribal laws. The principal

cases on which they rely are also Eighth Circuit cases, and

thus do not establish the existence of a conflict between

circuits. Moreover, because the plaintiff established specific

injury from the particular tribal law being challenged in each

case, there is no conflict with the holding in this case.

4. In denying panel and en banc rehearing in this case, the

Eighth Circuit necessarily determined that New Town did not present

an intra-circuit conflict warranting further consideration.

In Baker Elec. Co. v. Chaske, 28 F.3d 1466, 1469

(8th Cir. 1994), a tribe contracted with a power producer to

serve tribal facilities. When a state court upheld a competing

producer’s right to serve the facilities, the tribe enacted a

utilities code to perpetuate its exclusive relationship with its

preferred producer. /d. at 1470. The tribe enacted the code

as part of a specific, longstanding effort to regulate the

provision of electricity services to the competing producer’s

financial detriment. /d. at 1469-70. Thus, the competing

producer was already suffering economic injury from the

tribe’s actions, and the tribe did not dispute its standing to

challenge the code.

In Northern States Power v. Prairie Island Mdewakaton

Sioux Indian Community, 781 E. Supp. 612, 613 (D. Minn.

1991), aff'd, 991 F.2d 458 (8th Cir. 1993), a tribe enacted an

ordinance restricting plaintiff’s nuclear waste shipments.

After plaintiff challenged the ordinance administratively, the

tribe formally resolved to enforce it. Jd. at 614. The plaintiff

delayed shipments of water samples because of the ordinance,

risking fines and other adverse consequences. Jd. at 616.

The district court issued an injunction, finding plaintiff would

be irreparably harmed if the ordinance remained in effect.

Id. at 616-17. Because plaintiff showed irreparable harm,

there was no question it had standing.

The two non-Eighth Circuit cases on which petitioners

rely also do not conflict with the lower courts’ decisions in

this case. In Wisconsin v. Baker, 464 F. Supp. 1377, aff'd,

698 F.2d 1323 (7th Cir.), cert. denied, 463 U.S. 1207 (1983),

a state challenged the application of a tribal hunting and

fishing code to nonmembers. To establish its standing, the

state alleged, and the defendant tribal officials did not dispute,

that “upon defendants’ direction, agents of the defendants

are enforcing the tribal conservation code, causing real and

substantial injury to the plaintiff and those for whom it serves

as trustee.” 464 F. Supp. at 1380 (emphasis added). Similarly,

in Tenneco Oil Co. v. Sac & Fox Tribe of Indians of

Okl., 725 F.2d 572, 574 (10th Cir. 1984), an oil and gas lessee

challenged tribal ordinances purporting to regulate oil and

gas leases. The lessee sued after the tribe commenced

enforcement proceedings to cancel its lease under the

ordinances. Jd. No similar proceedings have been commenced

— or threatened — in this case.

Finally, petitioners cite the Eighth Circuit’s decision in

Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d

994 (8th Cir. 1993), a case in which the Band had filed to

suit to enable its members to exercise usufructuary rights on

ceded lands. The Eighth Circuit permitted counties and

landowners to intervene under Federal Rule of Civil

Procedure 24(a) because their interests “might be impaired

by the disposition” of the case. /d. at 997. The court reasoned

that the litigation would determine the rights of Band

members to hunt, fish and gather on the ceded lands,

“including land the counties and landowners own,” and might

reduce the proposed intervenors’ property values. Jd. at 998.

As the Eighth Circuit later observed, the court did not address

Article III standing. See Mausolf v. Babbitt, 85 F.3d 1295,

1299 & n.6 (8th Cir. 1996).

This case is different. Respondents are not suing for a

declaration that the 1855 Reservation still exists, or that the

Band has any rights or jurisdiction on petitioners’ lands.

Under Article III, the issue is not whether petitioners’ interests

“might be impaired” by the disposition of their own lawsuit,

but whether the challenged actions of the defendants have

caused an actual or imminent injury. On respondents’ motion

for summary judgment it was not enough for petitioners to

allege a possible injury; they had the burden to produce

specific facts to substantiate the existence of a real injury

caused by respondents. The lower courts’ determination that

they failed to meet this burden is not at all inconsistent with

the Eighth Circuit’s intervention decision in Mille Lacs.5

B. Federal Courts Have Had No Difficulty in Applying

Article III Standing Requirements in Reservation

Disestablishment Cases.

Because the petitions do not challenge the settled

principles of standing on which the district court and court

of appeals relied, they present, at most, a challenge to the

application of those principles to the particular facts of this

case. Petitioners make no showing, however, that this fact-

bound issue warrants certiorari. There is no indication the

lower federal courts have had difficulty applying the doctrine

of standing to reservation disestablishment cases.

Reservation disestablishment claims have been

adjudicated on the merits in cases in which the plaintiff

established a concrete injury arising from the exercise of

particular governmental authority premised on the existence

or disestablishment of a reservation. In addition to Rosebud,

Yankton Sioux, and New Town, supra, see, Hagen v. Utah,

510 U.S. 399 (1994) (state criminal prosecution); Solem v.

Bartlett, 465 U.S. 463 (1984) (state criminal prosecution);

DeCoteau v. District Court, 420 U.S. 425 (1975) (state child

placement proceeding and state criminal prosecution); Mattz

v. Arnett, 412 U.S. 481 (1973) (state seizure and forfeiture

5. Judge Bowman wrote the Mille Lacs intervention decision

and was on the Eighth Circuit panel in this case.

of fishing equipment); Seymour v. Superintendent, 368 U.S. 351

(1962) (state criminal prosecution); United States v. Webb, 219

F.3d 1127 (9th Cir. 2000), cert. denied, 531 U.S. 1200 (2001)

(federal criminal prosecution); United States v. Grey Bear, 828

F.2d 1286 (8th Cir.), vacated in other respects, 836 F.2d 1088

(8th Cir. 1987) (en banc) (federal criminal prosecution);

White Earth Band of Chippewa Indians v. Alexander, 518

F. Supp. 527 (D. Minn. 1981), aff’d, 683 F.2d 1129 (8th Cir.),

cert. denied, 459 U.S. 1070 (1982) (state enforcement of hunting

and fishing laws); United States v. Minnesota, 466 F. Supp. 1382

(D. Minn. 1979), aff'd sub nom. Red Lake Band of Chippewa

Indians v. Minnesota, 614 F.2d 1161 (8th Cir.), cert. denied,

449 U.S. 905 (1980) (state enforcement of hunting and fishing

laws).

In contrast, the federal courts have held reservation

disestablishment claims nonjusticiable where the plaintiff did

not establish an actual or imminent injury from any particular

governmental action. See, e.g., Association of Property Owners/

Residents of Port Madison v. Individual Council Members of

the Suquamish Tribal Council, 79 Fed. Appx. 126, 2003 WL

22098043 (9th Cir. 2003) (unpublished) (general “threat of

enforcement of Tribal laws or exercise of Tribal jurisdiction”

insufficient to establish standing); Cass County, 570 F.2d at 741

(claim nonjusticiable where jurisdictional question presented

in the district court “abstract and hypothetical”); Brown-

Outagamie-Oneida Jurisdiction Commission v. Powless,

No. 85-C-1052 (E.D. Wis. 1990) (Bank 8th Cir. App. 55-56)

(claim nonjusticiable because plaintiffs “unable to point to any

actual exercise of jurisdiction over fee patented lands by the

tribe”).

Petitioners do not suggest these courts have incorrectly

applied standing principles in reservation disestablishment cases.

The consistent application of settled principles of standing in

reservation disestablishment cases does not warrant certiorari.

C. The Lower Courts Did Not Err in Determining

Petitioners Failed to Present Specific Evidence of Injury

in Response to Respondents’ Summary Judgment

Motion.

Even if this Court were inclined to review the application

of correctly stated standing principles to particular facts, there

is nothing in the record to suggest the lower courts erred in

applying those principles to the facts in this case.

1. Enforcement of State and Local Laws.

The County asserts an injury to its ability to enforce its

laws. However, it failed to substantiate this claim with any

specific examples where County law enforcement was affected

by respondents’ actions. When asked to provide such details,

the County responded that its allegation was “not based upon

any specific date, person, activity, event or location.” Resp. 8th

Cir. App. 80-81. The County Sheriff testified respondents have

taken no actions that impaired public safety or his agency’s

ability to enforce state and local laws. Jd. 102, 105-06, 108-11,

113, 118, 121. And, the County admitted it presently enforces

the law “without regard to the 1855 Reservation boundaries or

membership in the Mille Lacs Band.” County 8th Cir. Br. at 47

(emphasis in original). The lower courts correctly concluded

the County did not demonstrate an actual or imminent injury to

its ability to enforce its laws.®

6. In Virginia v. Hicks, 539 U.S. 113, 120-21 (2003), this Court

held a state suffered injury in fact from a state court judgment holding

a state law unconstitutional, and therefore had standing to challenge

the state court judgment in this Court. There is no similar judgment

limiting County law enforcement in this case.

2. Enforcement of Band Laws.

The Bank claims injury from the potential application

of Band laws to it. Although most Band laws were enacted

nearly 20 years ago, Resp. 8th Cir. App. 168, 170, 213-14,

no Band law has ever been applied to the Bank. For example,

the business-licensing program developed under Band law

applies only to businesses that do business with the Band.

Id. 32-33 (J¥ 4-9), 124 (4 b), 127 (FF 3-4), 186, 188, 191-95.

Similarly, the Band has limited enforcement of its

environmental laws to its own lands and members. Jd. 151

(ff 24-25), 198-201. As the district court found, “the Band

has neither threatened nor demonstrated an intention to

enforce its ordinances beyond its 4000 acres.” Bank App.

17a.

The Bank submitted no evidence the Band intends, after

20 years, to begin applying its laws to the Bank. The Bank

(Pet. at 8) quotes a passage from a 15-year-old political

speech by a former Band Chief Executive, but the speech

presented a program to re-purchase lands, not to assert

jurisdiction over nonmembers. The Bank cites no evidence

of any current Band intent to expand the enforcement of Band

laws to nonmembers. And, despite the Bank’s claim (Pet. at

11) that “the specter of Band regulation poses significant

operational concerns to the Bank,” the Bank submitted no

evidence that the Band’s statutes have had any impact on

Bank operations. Specifically, the Bank made no claim that

either the existence of the Band’s statutes or the Band’s

position regarding the status of the 1855 Reservation has

affected in any way who the Bank does business with, where

it does business, the terms of any Bank loan or other

transaction, the Bank’s enforcement of any delinquent loan,

the Bank’s future business plans, or any other matter.

3. Property Values.

The Bank claims (Pet. at 13) the Band’s alleged assertion

of regulatory authority has caused a decline in property

values. The most basic problem with this claim was the

“utter paucity of admissible evidence” to support it. Bank

App. 22a. The Bank’s only evidence of diminished values

was a two-and-a-half page affidavit from an appraiser, Roger

Wagner. Bank 8th Cir. App. 427-30. The district court found

this affidavit did not satisfy plaintiffs’ burden under Federal

Rule of Civil Procedure 56(e) to adduce specific facts

establishing a genuine issue for trial. Bank App. 21a.’

The only “fact” underlying the opinion was a published

advertisement identifying a piece of property as lying “outside

the disputed boundaries.” Jd. The affidavit contained no

empirical evidence comparing land values inside and outside

the Reservation boundaries. Jd. 21a-22a.

Plaintiffs’ “expert” offers nothing other than

conjecture to show that verbal sparring 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.

Id. 22a. The district court took notice of the fact that the

1855 Reservation includes Mille Lacs Lake waterfront and

7. See Weisgram v. Marley, 528 U.S. 440, 454 (2000) (expert

opinion “not supported by sufficient facts to validate in the eyes of the

law” cannot support jury verdict); Brooke Group v. Brown & Williamson

Tobacco, 509 U.S. 209, 242 (1993) (expert testimony is “useful as a

guide to interpreting market facts, but is not a substitute for them”).

other highly desirable vacation, business and residential

property; “[t]aking into account the historically strong interest

in owning this lake front property, and the absence of

evidence of so much as a single sale where proximity to

Indian Country affected price,” the court correctly found

petitioners failed to demonstrate any injury or risk of future

injury. Jd.°

The Bank also points (Pet. at 14) to the affidavits of its

Chairman, B. P. Allen. The affidavits do not claim property

values have declined, but state in conclusory fashion that

the Band’s alleged assertion of regulatory authority “will

depress the market value” of the Bank’s property interests.

Bank App. 58a (emphasis added). The prospective, contingent

nature of Mr. Allen’s assertion is underscored by his statement

that the Bank intervened in this case to prevent negative

impacts “which will result ifthe former 1855 reservation is

found to exist along its original boundaries,” or if the Band

has the authority to license businesses within the area of the

former 1855 reservation.” Jd. 58a-59a (emphasis added).

Because the Band has not sought any relief in this case, these

unsupported allegations do not establish an actual or

imminent injury.

4. Controversy.

Finally, petitioners argue that because respondents

are allegedly seeking to “resurrect” the 1855 Reservation,

the disagreement over the Reservation’s status is, by itself,

8. The County Commissioner who served as the County

spokesperson for this litigation testified that property values have

increased countywide in recent years, and that values within the 1855

Reservation have followed the same, increasing trend. Resp. 8th Cir.

App. 67c.

enough to establish standing. However, the “presence of a

disagreement, however sharp and acrimonious it may be, is

insufficient by itself to meet Article III’s requirements.”

Diamond v. Charles, 476 U.S. 54, 62 (1986). While a tribe’s

assertion of jurisdiction over nonmembers can undoubtedly

have “real, practical consequence,” Hicks, 533 U.S. at 383

(Souter, J., concurring), that does not mean a challenge to

tribal jurisdiction or to the status of a reservation can be

litigated in any case in which there is an abstract disagreement

over tribal authority. Where, as here, there is no tribal action

that has caused an actual injury to plaintiffs and no such injury

is imminent, the “essential and unchanging” requirement of

standing, Lujan, 504 U.S. at 560, aas not been met.

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted,

Marc D. SLONIM

Counsel of Record

JOHN B. ARUM

ZIONTZ, CHESTNUT, VARNELL,

BERLEY & SLONIM

2101 Fourth Avenue

Suite 1230

Seattle, WA 98121

(206) 448-1230

Attorneys for Respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.