8TH DISTRICT CIRCUIT COURT HEARS ORAL ARGUMENTS IN LAW ENFORCEMENT CASE

By Vivian LaMoore

The Mille Lacs Band of Ojibwe faced off with Mille Lacs County in the federal 8th Circuit Court of Appeals on June 12 to argue before the three-Judge panel regarding the County’s appeal from Judge Nelson's rulings in the law enforcement case. The Band filed suit against the County in 2017 after the County abruptly revoked the law enforcement agreement with the Band, stripping the state licensed Peace Officers of Mille Lacs Band Tribal Police of their criminal law enforcement authority and threatening to arrest officers if they enforced criminal law on the Reservation over non-Band members.

The lawsuit is over policing authority of Tribal officers on the Reservation. To determine that authority, it was argued that acknowledging the existence of the 61,000 acres of the 1855 Reservation was necessary, even though the United States federal government and the State of Minnesota have long determined the Reservation has never been disestablished or diminished. But the County sees differently and argued that the Mille Lacs Reservation had been disestablished and no longer existed other than the roughly 4,000 acres held in trust by the federal government.

In 2023 U.S. District Court Judge Susan Richard Nelson affirmed the original 61,000-acre Reservation had not been disestablished and the original boundaries of the Reservation of the 1855 treaty remained intact. Judge Nelson also ruled the County had illegally restricted the law enforcement authority of the Band tribal police.

The County appealed that decision.

Minnesota Statute 626.90 is the statute regarding the state-delegated law enforcement authority of the Mille Lacs Band. Previous versions of the statute required Mille Lacs Band Tribal Police to have a mutual law enforcement agreement with Mille Lacs County Sheriff’s Office in order to enforce state law over all persons within the boundaries of the Reservation. It stated the Band “shall” have mutual aid/cooperative agreements with the Mille Lacs County sheriff in order to do so. But in 2023, that statue was changed to say the Band “may” enter into mutual aid/cooperative agreements with the Mille Lacs County sheriff. Hence, the mutual aid/cooperative agreement was no longer required by state law in order for Tribal police to have state law enforcement authority over all persons within the Reservation.

Eighth Circuit Judge James Loken acknowledged that fact at the beginning of the presentation of arguments, stating the circumstances of the Mille Lacs Band case have changed questioning then “what’s the meaning of this lawsuit?”

Marc Slonim, attorney for the Band, argued the case was triggered by a public safety issue when the County refused to recognize the Tribal police’s law enforcement authority on Reservation lands over all persons including on federal trust lands. However, the change in statute negates the requirement for there to be a law enforcement agreement between the Band and the County and therefore, that issue is “Super moot. I don’t know if that is a legal term,” Slonim said.

The restrictions that the Band challenged in this lawsuit ended in 2018 and there’s no realistic prospect they will ever return based on the temporary law enforcement agreement entered into between the Band and the County. However, he pointed out that agreement was temporary and due to expire at the conclusion of the lawsuit. Due to the recent change in statute, the Band now has more law enforcement authority that it has ever had, as a matter of state law… and the County can’t change that. If the County wants to revoke the current agreement, they can revoke it and it will not make any difference.”

Judges took notes and asked several questions during Slonim’s explanations and oral arguments and listened intently. Slonim and the Judges held discussions on whether or not to vacate the lower court’s order. Slonim said, “I think there is some value at leaving the District Court’s decision in place for the reason the state articulated about providing guidance to state agencies including law enforcement and prosecutors… The guidance it provides other parties has some value.”

Slonim reiterated the basis of the lawsuit rested on the law enforcement agreement with the County. Now that issue has been resolved through statute, there is no longer a law enforcement threat. Slonim said the Band would “prefer the lower court’s decision not be vacated, but recognize there are other considerations on that issue.”

Randy Thompson, attorney for the County, disagreed on the issue of mootness and said while the statute gives criminal law enforcement authority to Tribal PD, it does not grant civil regulatory authority such as barking dogs

Judges remarked at the conclusion of the arguments that, “the case is complex, it has been thoroughly briefed and argued. We will take it under advisement.”

It is not known when the 8th Circuit will reach a decision on this appeal.