In a recent development related to the federal lawsuit filed by the Mille Lacs Band of Ojibwe against Mille Lacs County, its sheriff and county attorney, regarding the reservation boundaries and scope of tribal law enforcement authority, the Minnesota Supreme Court agreed to review the indemnification lawsuit filed by Mille Lacs County Attorney Joe Walsh and Mille Lacs County Sheriff Don Lorge to recover legal fees from the state of Minnesota.

Walsh and Lorge filed a lawsuit in 2020 against the state of Minnesota for what their attorneys believe is the state’s refusal to honor its legal obligation – codified in Minnesota Statute Section 3.736 – to indemnify and hold them harmless in connection with any tort, civil, or equitable claim or demand for expenses and attorneys fees reasonably incurred, according to the lawsuit’s language.

The Minnesota Supreme Court granted the Minnesota Sheriffs’ Association, Minnesota County Attorneys Association, and Association of Minnesota Counties permission to file friend-of-the-court briefs supporting Walsh and Lorge.

History of the indemnification lawsuit

In 2016, Mille Lacs County revoked a cooperative law enforcement agreement with the Mille Lacs Band. Walsh asked former Minnesota Attorney General Lori Swanson to issue an opinion confirming the scope of tribal law enforcement authority in the absence of the cooperative agreement. The attorney general’s office refused, and Walsh was forced to issue his own opinion. The current sheriff at that time, Brent Lindgren, and his deputies followed Walsh’s advice. The Mille Lacs Band sued Walsh, Lindgren and Mille Lacs County in federal court in 2017, claiming interference with the Band’s tribal law enforcement authority and that the 1855 reservation boundaries remained intact.

Walsh and the sheriff sought indemnification from the state on the grounds that they were sued in their official capacities for actions taken on behalf of the state. They contend that state law requires the state of Minnesota to pay their legal defense fees incurred in the federal lawsuit rather than Mille Lacs County.

A Ramsey County district court judge, Judge Susan Richard Nelson, disagreed with Walsh and Lorge, the current sheriff. The Minnesota Court of Appeals affirmed, and Walsh and Lorge petitioned the Minnesota Supreme Court for further review.

Moving forward

The Minnesota Supreme Court granted Walsh and Lorge an extension to file their opening brief. “The opening brief is due September 20, 2021,” according to one of Sheriff Lorge’s attorneys, Brett Kelley, of Kelley, Wolter & Scott, P.A. “The amicus briefs are due September 27, the State’s response is due October 20, and Walsh and Lorge’s reply brief is due November 3. Oral argument will be scheduled at a later date.”

Federal lawsuit summary

In the federal lawsuit, the county’s stance is that the 1855 Treaty Reservation was terminated by Congress through subsequent treaties, statutes and agreements with the Mille Lacs Band and that county law enforcement did not interfere with tribal law enforcement’s ability to police. The Band’s stance is that the boundaries have never been dissolved by Congress and that county law enforcement undermined tribal policing, thus causing an influx of criminal activity.

Where the federal lawsuit stands

U.S. District Judge Susan Richard Nelson stayed the proceedings in April of this year regarding the reservation boundary and law enforcement claims while Walsh and Lorge appeal her Dec. 21, 2020, opinion to the Eighth Circuit Court of Appeals. In that opinion, Nelson sided with the Mille Lacs Band and concluded it had standing to pursue claims that the county attorney and sheriff interfered with the Band’s law enforcement authority. Nelson also stated that Walsh and Lorge are not entitled to immunity from the lawsuit under the 10th or 11th Amendments.

The federal appeal seeks review of Walsh and Lorge’s immunity defenses and whether they should be dismissed for lack of subject matter jurisdiction. If they are dismissed, the Band’s lawsuit over the boundary issue would likely proceed solely against Mille Lacs County. Nelson stated the district court lacks jurisdiction to make a summary judgment decision on the boundary dispute until the federal appeal is resolved.

The subject of the federal appeal gives standing to the Band to proceed with the boundary issue and is a critical piece in the Band’s claims against the county.

County experiencing budget woes

In a time of major budget shortfall in Mille Lacs County finances, largely due to defending themselves in the lawsuit filed by the Mille Lacs Band, the indemnification lawsuit if successful would recover from the state Walsh and Lorge’s attorneys fees from the federal lawsuit retroactively and prospectively (plus some additional costs), and all fees and costs incurred by Walsh and the sheriff in the indemnification lawsuit.

This money would then be given to Mille Lacs County. The indemnification appeal, if successful, could also set precedent for other municipalities.

To date, the County has spent over $6.3 million since 2018 on legal fees defending the lawsuit by the Band. The Band has not disclosed how much it has spent on fees.

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