Tribal Law Enforcement Authority Debate Continues

By VIVIAN LaMOORE, INAAJIMOWIN EDITOR

Roughly 30 Mille Lacs Band members and Mille Lacs Band government employees attended a hearing on Thursday, August 11, 2022, in U.S. Federal District Court in St. Paul before Judge Susan Richard Nelson in the lawsuit between the Mille Lacs Band of Ojibwe and Mille Lacs County, et al. The hearing was held to grant or deny the Band summary judgment, leading to declaratory and injunctive relief. The Band wanted the court to rule that the County’s restrictions on the Band’s law enforcement authority were unlawful, declare what law enforcement authority the Band has, and prohibit the County from interfering with that authority.

After a lengthy 2-plus hours of hearing arguments from both sides, Judge Nelson instructed both parties to go back to the discussion table to try to come to a cooperative agreement on tribal law enforcement authority on Reservation lands. She directed the parties to report to her on the status of their discussions within 30 days. If the parties are at an impasse, the Judge will issue a ruling she said.

Marc D. Slonim, lead attorney for the Band, argued in support of the Band receiving summary judgment awarding declaratory and injunctive relief. Slonim argued that the Court had already found that the restrictions imposed by the County led to substantial injuries to the Band’s sovereignty and a decline in law enforcement and public safety on the Reservation. He stated that the injunction sought by the Band is specifically designed to recognize and restore the Band’s sovereign law enforcement authority, will prevent such injuries in the future, and is in the public interest.

Slonim argued that Joe Walsh, in his capacity as County Attorney, issued an opinion and protocol that stripped the Band’s tribal officers of all law enforcement authority on non-trust lands within the Reservation over Band members, tribal members from other tribes, and non-Indians, and prevented Band officers from investigating state-law violations on trust lands and Band owned fee lands within the Reservation.

The court ruled earlier, on March 4, 2022, that the boundary of the 1855 Reservation was still intact and had never been disestablished. While the County is likely to appeal that ruling, they said previously, the Reservation boundaries were not an issue before the court on August 11.

The issue at hand was whether a trial was necessary before the Court could issue declaratory or injunctive relief and the scope of any such relief. The Band would like the court to rule in favor of an injunction and gave a “persuasive argument in support of the injunction,” Judge Nelson said. The County on the other hand, does not feel an injunction is necessary based on the fact that the county did not actually act on the protocol set forth by the County Attorney that stated Tribal Police officers could be arrested and charged if they attempted to make any arrests or investigate state or federal law during that time period.

The County did not dispute the fact that Walsh did issue his opinion and the protocol. And while the county stood behind the opinion, Randy Thompson, attorney for the County, argued that no arrests of tribal officers were ever conducted.

There was no dispute by the county that the County Attorney did tell all of the officers to comply with the protocol, nor was there any dispute by the County that the sheriff took over all Tribal investigations and seized all evidence that had been collected by Tribal officers.

Judge Nelson questioned the legality of the county attorney opinion and protocol stating it, “raises [a] specter for acting illegally.”

Slonim argued that the Band had met the burden proving injury and harm [to the Band] had been established and that the County had not disputed those arguments previously and were “not entitled to a second bite of the apple now,” Slonim said.

Slonim cited there was a decline in public safety on the Reservation that caused the Band community irreparable harm. The County did not dispute that fact earlier, Slonim stated.

Thompson argued that the current agreement is working well for both parties therefore there is no need for the injunction. However, the judge pointed out that the current agreement will expire on the completion of this case.

Brett Kelly, attorney for the Mille Lacs County Sheriff disputed that the Band had been injured and told the judge he would prefer the case go to a jury trial. However, when asked by the Judge if he would be ready for a jury trial in 30 days, Kelly said he would most likely need more time to prepare for a jury.

Judge Nelson said she believed there was “room for a resolution instead of a trial” and suggested the parties hire a private mediator to address the issue of a cooperative agreement.