Oral arguments will be held for the indemnification lawsuit by the Mille Lacs County sheriff and attorney against the State of Minnesota at the State Capitol on Dec. 6. The State and sheriff and county attorney have filed their response briefs. 

The indemnification lawsuit, in summary, is the lawsuit filed by Mille Lacs County Attorney Joe Walsh and Mille Lacs County Sheriff Don Lorge against the State of Minnesota to indemnify, or hold them harmless, from the lawsuit filed by the Mille Lacs Band of Ojibwe against them. 

Attorneys assert that the county attorney and sheriff were acting on behalf of the State, particularly in regard to Walsh issuing an opinion regarding the policing agreement with the Mille Lacs Band in the absence of an opinion by then Minnesota Attorney General Lori Swanson. Their attorneys asserted that in this situation Minnesota Statutes Section 3.736 states they should be indemnified and held harmless in connection with any tort, civil, or equitable claim or demand for expenses and attorneys fees reasonably incurred in the federal lawsuit filed by the Mille Lacs Band.

The lawsuit by the Mille Lacs Band has cost the County approximately $6.4 million. 

Arguments by the County

Attorneys for the county attorney and sheriff in their brief prepared for the Dec. 6 hearing indicatee that the State ignores the court’s precedent that county attorneys and sheriffs act for the State. They also say the State misrepresents the County’s arguments; that there is only “one State of Minnesota,” not two; that the implicit assumption of mutual exclusion in the State’s argument is unsupported; that the State’s brief contradicts statutory text and misstates the law regarding statutory construction; that the Court should not ignore the law simply because the law has not been recently invoked; that the Supreme Court’s decision in McMillian v. Monroe County supports the county’s position; and stating that county attorneys and sheriffs do not act for the State could invalidate Public Law 280 prosecutions and investigations. 

Attorneys for the county attorney and sheriff also say that if Walsh and Lorge are only exercising authority on behalf of “the public” or “Mille Lacs County,” and not exercising authority on behalf of the State, particularly as it relates to prosecutions regarding the Native American population, Walsh and Lorge could not prosecute or enforce laws involving Indians who commit crimes in Indian Country.  

Attorneys cite the recent “McGirt v. Oklahoma” ruling by the U.S. Supreme Court as an example of the State’s criminal jurisdiction in question and the resulting approximate 6,000 criminal cases now seeking dismissal. 

The brief states: “To hold that the Mille Lacs County Attorney and Sheriff do not act for the State would not only call into question already settled convictions. It would also cast doubt on Mille Lacs County Attorney’s and Sheriff’s ability to investigate, enforce, and prosecute new crimes committed by Indians in Indian Country in Mille Lacs County. Those officials’ criminal jurisdiction over Indians is the State’s power granted by Public Law 280.”

The Minnesota County Attorneys Association, the Association of Minnesota Counties, and the Minnesota Sheriffs Association have filed a brief in support of the County Attorney and Sheriff.

Arguments by the State

Attorneys for the State in their brief note that the State also argues that county attorneys and sheriffs do not act “on behalf of the State” within the meaning of the State Tort Claims Act; that the history and context of the Municipal Tort Claims Act and State Tort Claims Act further demonstrates that the sheriff and county attorney are not “Employees of the State”; that the County’s interpretation confounds legislative intent; that other jurisdictions have similarly rejected appellants’ arguments; that this Court’s decision in Andrade v. Ellefson is inappropriate; that appellant Lorge’s reliance on McMillian v. Monroe County, Alabama, is misplaced; and that the Minnesota County Attorneys Association statement in support of the county attorney and sheriff misinterprets the word “includes.”

The Attorney General’s brief concludes: “In sum, Minnesota sheriffs and county attorneys are county officers, and they act on behalf of the counties that they serve. When they are sued, they must seek defense and indemnification from the county under the Municipal Tort Claims Act, not from the state under the State Tort Claims Act. This Court should therefore affirm the dismissal of their Complaint against the state.”

Federal lawsuit dismissal update

Regarding the federal lawsuit, the 8th Circuit Court this summer issued a final judgment stating, “[the county attorney and sheriff’s] motion to dismiss on terms fixed by the court is granted.” Attorneys for the county attorney and sheriff then asked the 8th Circuit Court to recall the finality of the ruling in order to clarify whether or not the Court had granted their motion to dismiss the county attorney and sheriff from the federal lawsuit on grounds the case against them was now moot. The Court denied that request. The attorneys for the county attorney and sheriff stated they are scheduled for a video conference with Federal District Court Judge Susan Richard Nelson with all the parties involved on Nov. 15 to discuss the next steps in the lawsuit. Information on that meeting will be released when available.

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