# WHITE EARTH BAND OF OJIBWE

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Aminn_chippewa_white_earth%3Ac65e6430704756d3

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

Case No. AP21-0516
WHITE EARTH BAND OF OJIBWE
IN TRIBAL COURT OF APPEALS

MINNESOTA DEPARTMENT OF NATURAL RESOURCES, et al.,
Defendants-Appellants,
vs.
MANOOMIN, et al.,
Plaintiffs-Respondents.

APPELLANTS’ OPPOSITION TO MOTION FOR RECONSIDERATION

KEITH ELLISON
Attorney General
State of Minnesota

FRANK BIBEAU, #0306460
Tribal Attorney
51124 County Road 118
Deer River, MN 56636
frankbibeau@gmail.com

COLIN P. O’DONOVAN, #0396349
OLIVER J. LARSON, #0392946
Assistant Attorneys General

JOE PLUMER #0164859
Tribal Attorney
9352 North Grace Lake Road
Bemidji, MN 56601
jplummer@paulbunyan.net

445 Minnesota Street, Suite 1400
St. Paul, Minnesota 55101-2131
(651) 757-1026
(651) 297-4139 (Fax)
colin.odonovan@ag.state.mn.us
oliver.larson@ag.state.mn.us
ATTORNEYS FOR APPELLANTS

ATTORNEYS FOR RESPONDENTS

i

INTRODUCTION
The respondents have moved for reconsideration of this Court’s decision (the
“Decision”) holding that the White Earth Band of Ojibwe’s tribal courts lack subject matter
jurisdiction over the claims pled here against state officials for issuing permits for an offreservation project. The respondents offer nothing that merits this Court reconsidering the
Decision.
LEGAL STANDARD
Motions for reconsideration are disfavored. Elder-Keep v. Aksamit, 460 F.3d 979,
985 (8th Cir. 2006). A motion for reconsideration is not a vehicle to identify facts or legal
arguments that could have been raised at the time the matter was first pending, but were
not. SPV-LS, LLC v. Transamerica Life Ins. Co., 912 F.3d 1106, 1111–12 (8th Cir. 2019);
Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015).
ARGUMENT
The respondents filed two briefs in support of reconsideration, making essentially
four arguments. First, the respondents argue this Court should ignore the Montana
framework limiting when a tribal court may exercise jurisdiction over a nonmember, and
instead decide the issue of tribal court jurisdiction based exclusively on a reading of the
Tribal Code of Manoomin. Second, the respondents re-argue their position that the
Montana framework allows tribal court jurisdiction over nonmembers for actions occurring
off-reservation if there is an on-reservation impact. Third, the respondents newly argue
that a congressional delegation of authority gives the Band’s courts jurisdiction over DNR
officials for any conduct that impacts Manoomin. Fourth, the respondents argue that newly

discovered evidence supports the Court reconsidering the Decision because the evidence
shows additional potential harms to Manoomin.
There is nothing for this Court to revisit. The respondents have still not cited a
single case in which a court has held that a tribal court can exercise jurisdiction over a
nonmember for off-reservation conduct. The respondents instead continue to cite cases
involving on-reservation conduct – often on tribal or trust lands where a different legal
regime applies – to argue the Band’s courts have off-reservation jurisdiction. The cases
that do address off-reservation conduct plainly hold that tribal courts lack jurisdiction over
nonmembers. The decision is correct, and the motion for reconsideration should be denied.
I.

TRIBAL COURT JURISDICTION OVER NONMEMBERS IS LIMITED BY FEDERAL
LAW.
The respondents argue the Band’s courts have plenary power to exercise jurisdiction

over nonmembers as a matter of inherent sovereignty. (Respondents Supplemental Br. at
4-9.) From this, they argue the Band’s courts do not need to account for federal-law
limitations on jurisdiction over nonmembers. This is plainly inconsistent with a long line
of Supreme Court cases emanating from Montana that hold that tribes generally do not
have inherent jurisdiction over nonmembers, and that federal law cabins tribal exercises of
jurisdiction over nonmembers.
Federal law, not tribal law, establishes the outer limits of when a tribal court may
exercise jurisdiction over a nonmember for conduct beyond tribal or trust lands. (Decision
at 6.) This issue was considered and resolved by the time of the Supreme Court’s decision
in National Farmers Union, if not earlier. In National Farmers Union, the Supreme Court
2

held that tribal court jurisdiction over nonmembers is a matter of federal law, permitting
federal courts to determine the jurisdiction of tribal courts over nonmembers. Nat. Farmers
Union v. Crow Tribe of Indians, 471 U.S. 845, 852 (1985).
Subsequent decisions have reiterated the federal-law limitation on tribal court
jurisdiction over nonmembers in unmistakable language: “whether a tribal court has
adjudicative authority over nonmembers is a federal question.” Plains Com. Bank v. Long
Fam. Land & Cattle Co., 554 U.S. 316, 324 (2008); citing Nat’l Farmers, 471 U.S. at 852;
see also Nevada v. Hicks, 533 U.S. 353, 367 (2001) (holding the argument that tribal courts
are courts of general jurisdiction is “quite wrong”); Atty’s Process & Investigation Servs.,
Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d 927, 934 (8th Cir. 2010).
This is not a new issue in the case. The DNR explicitly briefed the issue – citing
Plains Commerce, Nat’l Farmers, and API – and argued that the limits of tribal court
jurisdiction over nonmembers is controlled by federal law. (See DNR Opening Brief on
Appeal at 12.) This Court extensively analyzed the issue, reaching the same conclusion:
That the Tribe has granted its courts authority to hear certain matters,
however, does not end the courts’ examination of subject matter jurisdiction.
The United State Supreme Court has restricted the authority of tribal courts
to hear certain cases against nonmembers, even if the Tribe would permit its
courts to hear those cases.
(Decision at 6-7.)
In their supplemental briefing, the respondents now argue that tribal courts have
inherent power to exercise jurisdiction over nonmembers for anything that impacts the

3

reservation. (Respondents’ Supplemental Br. at 4-9.) 1 From this, they argue the Band’s
courts can ignore federal law restrictions on tribal court jurisdiction over nonmembers.
This is incorrect.
Even on fee lands inside a reservation, tribes and tribal courts lack plenary authority
over nonmembers, and must ground exercises of jurisdiction over nonmembers in a
Montana exception. See, e.g., Plains Commerce, 554 U.S. at 328. Plains Commerce
affirmed this already well-established principle of law. There, the issue was whether a
tribal court had jurisdiction to hear claims against a nonmember for discrimination and
wrongful foreclosure of fee lands. Id. at 325-26. If the respondents were correct, and tribes
have inherent authority over nonmembers, this would have been an easy decision in favor
of the tribe. It was not – precisely because the Supreme Court has long held that tribes
have no general jurisdiction over nonmembers, even for conduct on fee lands inside a
reservation. Id. at 328 (“Our cases have made clear that once tribal land is converted into
fee simple, the tribe loses plenary jurisdiction over it.”). As a result, the Plains Commerce
Court analyzed the case under the Montana exceptions and found no tribal court
jurisdiction. 2

The respondents offered no argument to the Court on this issue prior to the Decision,
despite this Court’s specific invitation for them to do so with its December 16, 2021 order
inviting written argument on five discrete issues, including: “Does the Tribe’s adoption of
a Judicial Code provision granting the Tribal Court jurisdiction to hear actions based on
alleged treaty violations override federal common law re Tribal Court jurisdiction under
Montana?”
2
In Duro v. Reina, the Supreme Court similarly considered the sovereign power of tribal
courts in holding that tribal courts lack jurisdiction over nonmembers to try criminal
matters. 495 U.S. 676, 681 (1990). The Duro court held that tribal sovereignty is limited,
(Footnote Continued on Next Page.)
1

4

As this Court observed in its order for supplemental reconsideration briefing, the
respondents had not previously cited any cases holding that tribal courts can ignore federal
law limits on their jurisdiction over nonmembers. With their supplemental briefing, the
respondents have newly cited a set of related cases emanating from the following language
from the Supreme Court in Iowa Mutual: 3 “Tribal authority over the activities of nonIndians on reservation lands is an important part of tribal sovereignty.” (Respondents Br.
at 5.) From this, the respondents argue tribal sovereignty allows tribal courts to ignore
federal law restrictions on jurisdiction. There are several problems with this argument.
First, all but one of the cases predate Plains Commerce. To the extent this line of
cases ever held that tribal courts have inherent sovereign authority over nonmembers free
of federal limits (a dubious reading of the cases), 4 that argument was expressly rejected in
Plains Commerce. Plains Commerce, 554 U.S. at 328; see also Duro, 495 U.S. at 681.
The one case cited by the respondents that post-dates Plains Commerce – Grand Canyon
– involved conduct on trust lands and is therefore inapposite. 715 F.3d 1196 (9th Cir.
2013). The power of tribal courts to exercise jurisdiction over nonmembers for conduct on
tribal or trust lands is greater than on fee lands and is of no relevance to this case involving
off-reservation conduct. Grand Canyon discusses this very distinction in holding that the
and tribal court jurisdiction extends only to its members in the absence of a federal grant
of jurisdiction. Id. at 686.
3
480 U.S. 9, 11 (1985).
4
The issue in Iowa Mutual was whether diversity jurisdiction allowed a nonmember to
challenge tribal court jurisdiction in federal court before exhausting jurisdictional
arguments in tribal court. 480 U.S. at 14. The Court did not resolve the question of whether
the tribal court actually had jurisdiction, only whether it was sufficiently colorable to
require exhaustion. Id. The subsequent cases cite Iowa Mutual only in passing.
5

Montana framework did not apply precisely because the conduct was on trust lands, not
fee lands. Grand Canyon, 715 F.3d at 1205.
Second, even putting aside the trust lands/fee lands distinction, none of the new
cases cited by respondents go that one step further and support authority for tribal court
jurisdiction over off-reservation conduct free from federal limits. Iowa Mut., 480 U.S. at
11 (auto accident inside a reservation); Grand Canyon, 715 F.3d at 1205 (development
contract on tribal trust lands); Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412,
1414 (8th Cir. 1996) (contract dispute for the construction and operation of a casino on
trust lands); City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 556 (8th Cir.
1993) (regulation of liquor stores inside a reservation)5; Blue Legs v. U.S. Bureau of Indian
Affs., 867 F.2d 1094, 1095 (8th Cir. 1989) (illegal garbage dumps located inside a
reservation); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 134 (1982) (oil and gas
leases on trust lands inside a reservation). Each of these cases also expressly cabins its
language as limited to on-reservation conduct. See, e.g., Iowa Mut., 480 U.S. at 18 (“Tribal
authority over the activities of non-Indians on reservation lands is an important part of
tribal sovereignty”) (emphasis added).
In sum, no matter how far the newly cited cases might be stretched, they cannot be
stretched to hold that tribal courts have jurisdiction over nonmembers for off-reservation
conduct without regard to federal limitations. None of the cases hold that tribal courts can

City of Timber Lake also involved a federal statute expressly giving tribes authority to
regulate liquor stores located on fee lands within a reservation. 10 F.3d at 556, 18 U.S.C.
1161.

5

6

ignore the Montana framework when determining tribal court jurisdiction over
nonmembers for conduct beyond tribal or trust lands. Nor could they. The whole point of
Montana was that it established a background rule that tribes generally lack jurisdiction
over nonmembers, from which an exception must be found. Montana v. United States, 450
U.S. 544, 565 (1981). This Court was correct to analyze whether federal law permits
jurisdiction over DNR officials under the Montana framework, and it should not revisit the
issue.
II.

MONTANA DOES NOT CREATE A SOURCE OF TRIBAL COURT JURISDICTION
FOR OFF-RESERVATION CONDUCT.
As a result of the respondents’ motion for reconsideration, the parties again return

to an issue already briefed and decided by this Court – does the second Montana exception
allow for tribal court jurisdiction over nonmembers for their off-reservation conduct if a
party can allege an on-reservation impact. (Respondents Supplemental Br. at 9-16.) The
answer to this question is no, as the Court correctly determined after an extensive analysis.
(Decision 7-14.)
In its order for supplemental briefing, the Court directed the respondents to focus
their argument on new cases, rather than re-argue the same cases already considered.
Respondents cite four new cases, none of which supports their position.
The respondents newly cite Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1223
(9th Cir. 2000) (“Bugenig I”). The first problem for the respondents on Bugenig I is that it
goes the wrong way, with the Ninth Circuit ruling against tribal court jurisdiction on the

7

Montana issue. Bugenig I, 229 F.3d at 1223. 6 The second problem is that Bugenig I
involved on-reservation conduct – logging activity on fee lands within the boundary of the
reservation near a sacred tribal site. Id. 1219-20. The respondents are thus citing a case
rejecting tribal court jurisdiction over on-reservation conduct to argue in favor of tribal
court jurisdiction for off-reservation conduct. If anything, Bugenig I supports the DNR’s
position.
The respondents newly cite Rincon Mushroom Corporation of America v. Mazzetti,
No. 09CV2330WQH-POR, 2010 WL 3768347 (S.D. Cal. Sept. 21, 2010), rev’d sub
nom. Rincon Mushroom Corp. v. Mazzetti, 490 F. App’x 11 (9th Cir. 2012). In Rincon, the
issue was whether a tribe could regulate the land uses of a parcel inside the reservation on
fee lands adjacent to its casino. Id. at *2. As with every other case the respondents have
cited, it involved the application of the second Montana exception to on-reservation
conduct, not off-reservation conduct. Id.
The respondents newly cite MacArthur v. San Juan Cnty., 391 F. Supp. 2d 895 (D.
Utah 2007). It is another case involving on-reservation rather than off-reservation conduct.
Id. at 918. Moreover, the respondents fail to disclose that the district court decision they
cite was then reversed, with the Tenth Circuit holding the tribal court had no jurisdiction

The Ninth’s Circuit first decision in Bugenig was reversed after an on banc rehearing –
but not on the Montana issue. Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1212 (9th
Cir. 2001) (“Bugenig II”). Bugenig II held that there had been an express delegation of
congressional authority to the tribe that conferred jurisdiction. Id. This issue is discussed
in Section III below.
6

8

over any of the claims brought against nonmembers, on or off-reservation. MacArthur v.
San Juan Cnty., 497 F.3d 1057, 1077 (10th Cir. 2007).
Respondents newly cite City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir.
1996). Like the Wisconsin v. EPA case cited previously by respondents and extensively
analyzed by this Court, City of Albuquerque involves a delegation of authority to a tribe
under the Clean Water Act. 7 Id. at 423-24. As with Wisconsin v. EPA, the respondents
again seek to spin City of Albuquerque as a Montana case. It is not. As the City of
Albuquerque court explained:
Under the statutory and regulatory scheme, tribes are not applying or
enforcing their water quality standards beyond reservation
boundaries. Instead, it is the EPA which is exercising its own authority in
issuing NPDES permits in compliance with downstream state and tribal
water quality standards. In regard to this question, therefore, the 1987
amendment to the Clean Water Act clearly and unambiguously provides
tribes the authority to establish NPDES programs in conjunction with the
EPA. . . . [T]he EPA has the authority to require upstream NPDES
dischargers, such as Albuquerque, to comply with downstream tribal
standards.
Id. at 425. City of Albequerque therefore undercuts the respondents’ argument, and
reinforces this Court’s correct holding that Clean Water Act cases do not support an

The Clean Water Act authorizes the EPA to delegate its national pollutant discharge
eliminations system (NPDES) permitting authority under the Clean Water Act to the
individual states upon application, assurances that the state’s program meets the minimum
qualifications to manage the federal program, and EPA approval. 33 U.S.C. § 1342(b).
The U.S. Code also authorizes the EPA to treat the tribes as states under the Clean Water
Act and permits the EPA to delegate NPDES permitting authorities to the tribes provided
the tribe applies and meets the applicable requirements. 33 U.S.C. § 1377(e). The EPA
has not delegated it’s NPDES authority to the White Earth Band.
https://www.epa.gov/tribal/tribes-approved-treatment-state-tas
7

9

argument for off-reservation jurisdiction under Montana. These cases are instead properly
read as an exercise of federal jurisdiction, not tribal jurisdiction.
Beyond these new cases, the respondents offer further argument on cases already
analyzed by the Court – particularly Wisconsin v. EPA, Montana v. EPA, FMC
Corporation, and API – but nothing new. None of these cases holds that tribes can exercise
jurisdiction under Montana over off-reservation activities that have an on-reservation
impact.
The DNR does not re-brief the issues here, relying on its prior briefing and three
cases in particular – Plains Commerce, Hornell Brewing and API. 8 These cases contain
clear and unambiguous holdings from the Supreme Court and Eighth Circuit that Montana
and its progeny only permit tribal regulation of nonmember conduct inside the reservation,
and then only if the other conditions of Montana are met. Plains Commerce, 554 U.S. at
338; API, 609 F.3d at 940; Hornell Brewing Co. v. Rosebud Sioux Tribal Ct., 133 F.3d
1087, 1091 (8th Cir. 1998). This Court correctly decided this issue, and there is no reason
to revisit it.
III.

THE BAND DOES NOT HAVE A CONGRESSIONAL DELEGATION OF
AUTHORITY OVER DNR.

In their supplemental briefing, the respondents advance an entirely new argument –
that the Band has a congressional delegation of authority to regulate the conduct of DNR

Because the respondents did not initially brief the Montana issue at all, the most relevant
briefing is in the DNR’s reply brief filed in the Eighth Circuit (where the tribal parties did
brief the issue). The DNR submitted this brief to this Court with its December 20
supplemental submission in response to the Court’s request for additional briefing on this
issue. (See DNR Eighth Circuit Reply at 4-10.)

8

10

officials if that conduct might impact the reservation. (Respondents Supplemental Br. at
17-23.) For this proposition, the respondents rely on Bugenig II – where the Ninth Circuit
held that a congressional act dividing an existing reservation among tribes, and ratifying
one tribe’s constitution and civil laws, gave that tribe the authority to regulate logging on
the reservation. 266 F.3d at 1212. The respondents allege the Band has a similar delegation
of congressional authority that permits civil jurisdiction over DNR officials for off
reservation conduct that impacts the reservation. There are at least two fatal defects in this
argument.
First, congress can only delegate jurisdiction to tribes over nonmembers for conduct
within a reservation. As Bugenig II, itself holds:
The Supreme Court has stated, repeatedly, that Congress can delegate
authority to an Indian tribe to regulate the conduct of non-Indians on nonIndian land that is within a reservation.
Id. at 1210 (emphasis added). Here, the conduct at issue is not occurring on lands within
the reservation, and no inquiry needs to be made into whether there is congressional
delegation of authority over DNR officials because congress would have no authority to
make such a delegation. Id.
Second, the Band has no delegation of congressional authority analogous to that of
the Hoopa Valley Tribe in Bugenig II. In Bugenig II, the court considered the impact of a
settlement act passed by Congress that dealt not just with allotment and compensation
issues, but also partitioned a reservation which had originally been divided among four
tribes with no grant of any particular jurisdiction to any particular tribe. Id. at 1206.
Congress therefore acted to confirm the civil jurisdiction of the Hoopa Valley Tribe in
11

various ways to a portion of the reservation that had been allocated to it. Id. at 1212.
Congress did so by explicitly affirming that the tribe’s governing documents conferring
civil jurisdiction inside the reservation were “ratified and confirmed.” Id.
The respondents argue the same language appears in the White Earth Reservation
Land Settlement Act of 1985 – giving the Band the same delegation. (Respondents
Supplemental Br. at 20.) It does not, and the language of the two settlement acts is not
analogous. The “ratified and confirmed” language of the White Earth Reservation Land
Settlement Act concerns property ownership, not civil jurisdiction. The relevant language
of the two settlement acts is as follows:

12

Language of the Hoopa-Yurok Settlement Act
Pub. Law 100-580, Sec. 8, 102 Stat. 2924
(emphasis added)
The existing governing documents of the Hoopa Valley Tribe and the
governing body established and elected thereunder, as heretofore
recognized by the Secretary, are hereby ratified and confirmed.
Language of the White Earth Reservation Settlement Act of 1985
Pub. Law 99-264, Sec. 5 (c), (d), 100 Stat. 61
(emphasis added)
(c) As to any allotment which was granted to an allottee who had died prior
to the selection date of the allotment, the granting of such allotment is
hereby ratified and confirmed, and shall be of the same effect as if the
allotment had been selected by the allottee before the allottee’s death:
Provided, That the White Earth Band of Chippewa Indians shall be
compensated for such allotments in the manner provided in sections 6, 7,
and 8.
(d) As to any allotment that was made under the provisions of the Treaty
of March 19, 1867 (16 Stat. 719), and which was reallotted under the
provisions of the Act of January 14, 1889 (25 Stat. 642), such reallotment
is hereby ratified and confirmed.

As a result, there is no congressional delegation of any civil jurisdiction to the Band over
nonmembers in the 1985 settlement act, let alone civil jurisdiction over state officials for
issuing off-reservation permits. Any such delegation would need to be express. Bugenig
II, 266 F.3d at 1211. There is no express delegation here. The delegation would also need
to be lawful, which it would not be if it conferred jurisdiction over nonmembers for offreservation activities. Id. at 1210, 1211. Simply put, there is not and cannot be a

13

congressional delegation of civil jurisdiction to the Band for the off-reservation actions of
state officials.
IV.

THERE IS NO NEW EVIDENCE MERITING RECONSIDERATION
In their original brief in support of their motion for reconsideration, the respondents

assert that new evidence merits reconsideration of the Decision. (Respondents Original
Br. at 9-11.) The evidence concerns aquifer breaches associated with the construction of
Line 3. This evidence does not establish a basis for reconsideration.
First, the aquifer breaches were not allowed or allowable under any DNR permit.
The appropriation permit DNR issued for the Line 3 replacement project was for
construction/trench dewatering. 9 It does not cover or allow breaches of aquifers, which is
why DNR is now taking enforcement actions for the breaches. 10 Simply put, there is no
DNR permit or conduct to challenge with respect to the aquifer breaches.
Second, as with everything else in this case, the new evidence concerns the offreservation actions or inactions of DNR. The respondents’ efforts to muster more evidence
of things happening off-reservation doesn’t strengthen their argument for tribal court
jurisdiction because, as this Court correctly held, the Band’s courts do not have jurisdiction
over off-reservation conduct of nonmembers.
Relatedly, the respondents expend considerable effort in both reconsideration briefs
arguing that this Court ignored their allegations of on-reservation impacts. (Respondents

https://files.dnr.state.mn.us/features/line3/decisions/04june2021-update-trench-wateringdecisions.pdf.
10
https://files.dnr.state.mn.us/features/line3/restoration-order-enbridge-energy-9-1621.pdf
9

14

Opening Br. at 2, 6-9; Respondents Supplemental Br. at 1-2, 7-8, 13-14.) Neither the Court
nor the DNR ignored these allegations. In truth, the respondents did not plead onreservation impacts. As this Court recognized, the complaint instead pled impacts on the
Mississippi watershed and wild rice beds in the ceded territories. (See Compl. ¶¶ 50-51;
Decision at 8-9.) But for purposes of the appeal, the DNR did not argue the case should
be dismissed because the respondents failed to plead on-reservation impacts. DNR argued
that the case should be dismissed because the challenged conduct occurred off-reservation,
and did not confer jurisdiction on the Band’s courts even if there was an on-reservation
impact. The Court clearly understood the issue in the same way, and referenced the
respondents’ submissions in their motion papers and appellate papers of on-reservation
impacts (even if not technically supported by their complaint). (Decision at 8-9.) The
Court then resolved the jurisdictional issue by holding that Montana requires onreservation conduct, not just on-reservation impacts. (Id. at 14.) The new evidence does
not change the pertinent facts of the case.
V.

IF THE COURT REVERSES ITS DECISION ON THE MONTANA ISSUE, IT MUST
THEN TAKE UP THE ISSUE OF SOVEREIGN IMMUNITY.
As the Court will recall, the DNR made an independent argument for dismissal of

this matter based on sovereign immunity to suit in tribal courts. (Decision at 16.) Having
decided that the Band’s courts lacked jurisdiction under the Montana framework, the Court
declined to decide this issue. (Id.) If the Court were to overturn its holding on Montana,
it would then need to resolve the DNR’s sovereign immunity challenge before it could
remand. DNR relies on its prior briefing on this issue.
15

CONCLUSION
For the reasons stated above, this Court should deny respondents’ motion for
reconsideration.
Dated: April 20, 2022

Respectfully submitted,
KEITH ELLISON
Attorney General
State of Minnesota
/s/ Oliver J. Larson
OLIVER J. LARSON (No. 0392946)
COLIN P. O’DONOVAN (No. 0396349)
Assistants Attorney General
445 Minnesota Street, Suite 1400
St. Paul, Minnesota 55101-2131
(651) 757-1026 (Voice)
(651) 297-4139 (Fax)
oliver.larson@ag.state.mn.us
colin.odonovan@ag.state.mn.us
ATTORNEYS FOR THE DEFENDANTSAPPELLANTS

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aminn_chippewa_white_earth%3Ac65e6430704756d3. Public record. Not legal advice.