# Opposition Brief — Mille Lacs County, Minnesota v. Benjamin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 956

## Text

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,
V.
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

il
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

18

12

15

21

18

14, 18

14,17
12

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)

lV

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

18

18

18

11

19

21

18

VI

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

l

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.

2

STATEMENT OF THE CASE
1.

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:

3

‘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.

4

2.

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).

5

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).

6

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).

8

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.

9

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.

10

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.

11

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.

12

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.

13

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.

14

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.

15

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

16

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

17

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.

18

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.

19

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.

20

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”).

22

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.

23

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1006%3A2. Public record. Not legal advice.