A summary judgment hearing regarding the Mille Lacs Band of Ojibwe’s lawsuit on the boundary issue was held at 2 p.m. on Monday, March 15 before Judge Susan Richard Nelson in U.S. District Court.

The summary judgment hearing, a hearing where a court can grant a summary judgment either for or against a party in a lawsuit where there are no material facts in dispute, was held specifically to determine whether the 1855 Mille Lacs Band of Ojibwe Reservation was disestablished or whether it still exists today.

If the court grants summary judgment for the Band, then the 1855 Reservation boundaries would still exist, pending appeal. And likewise, if the court grants summary judgment to Mille Lacs County, then the 1855 Reservation no longer exists, pending appeal.

The County argued the former 1855 Reservation was disestablished by subsequent treaties in 1863 and 1864, the Nelson Act of 1889, Resolutions of Congress in 1893 and 1898, and the 1902 Agreement.

The Band believes the 1855 Reservation was never disestablished and still exists today and argued that the Nelson Act did not disestablish the reservation and that there was not clear congressional intent to disestablish. Along with numerous other arguments, attorneys for the Band also argued that certain acts after the Nelson Act referred to the Reservation as existing.

Another issue was brought up as to whether the court has jurisdiction to decide whether or not the Reservation still exists. The Band’s attorney argued that the district court lacks jurisdiction to make this decision because the county attorney and sheriff have appealed a previous district court order which the Band argued deprives the court to proceed with oral argument on the boundary dispute. The County argued that the court has discretion to decide the boundary issue because the law enforcement interference issue on appeal is legally separable from the boundary dispute. The Band, however, did ask the district court to proceed with oral argument on the boundary dispute.

The district court stated it would not decide the boundary issue until it was convinced it had jurisdiction to do so and ordered the parties to submit legal briefs on the jurisdictional issue. The Band’s brief is due March 29 and the County’s brief is due April 12.

Brief litigation history

The Band and County each filed summary judgment motions last summer on whether the district court had standing to hear the Band’s claim that its law enforcement authority had been interfered with by the County in the aftermath of the July 2016 revocation of the law enforcement cooperative agreement between the County and the Band.

On December 21, 2020, the district court granted the Band summary judgment that it had standing to hear the law enforcement interference claims and denied the County’s summary judgment motion on a variety of issues including subject matter jurisdiction, constitutional grounds, prosecutorial immunity, qualified immunity, and other legal issues.

On January 20 of this year, lawyers on behalf of the county attorney and sheriff filed a notice of appeal to the federal 8th Circuit Court of Appeals. The opening brief by the county attorney and sheriff are due April 1, 2021.

Next steps

Will the judge rule on this particular hearing or will there be more like this to present your arguments? And when?

The district court will need to decide whether it has jurisdiction to decide the boundary issue before it can make a summary judgment. The district court could decide it has jurisdiction to decide this issue after the parties brief the issue. If the district court decides it does not have jurisdiction, then it would likely wait to decide the boundary dispute until after the county attorney and sheriff’s 8th Circuit appeal is decided. If the district court decides it does have jurisdiction, then it could issue an opinion at any time, likely in a matter of months.

Either party, the Band or the County, can appeal the judge’s ruling on the boundary dispute. The party that loses is likely to appeal, according to the legal defense for the County. The appeal would be to the 8th Circuit Court of Appeals.

Headed for U.S. Supreme Court?

After the 8th Circuit issues its opinion, then the parties would have the option of seeking further review in the United States Supreme Court.

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