Mille Lacs County is once again attempting to undermine the Band’s sovereignty and question the status of the 1855 Reservation.
The Mille Lacs County Board of Commissioners passed a resolution on June 21 revoking the law enforcement agreement that addresses the manner in which the Tribal Police Department executes law enforcement services under Minnesota law. The termination of the agreement will be effective July 21.
Solicitor General Todd Matha said the action means that state criminal arrest authority will largely fall on the State and County. He expects them to “fulfill their obligations to provide robust law enforcement services on the Reservation regardless of the status of the cooperative agreement, and to provide equal protection to all of the Reservation’s residents and visitors.”
Matha assured Band members in all districts that “[t]here will be absolutely no impact upon the provision of tribal law enforcement services.”
He said the resolution appears to be an attempt by the Coun- ty to once again deny the boundaries of the Mille Lacs Reserva- tion. “This is not an appropriate or productive way to address those issues,” Matha said.
Ironically, the County’s resolution accuses the Band of using the criminal justice system “as a tool to address boundary issues.”
Chief Executive Melanie Benjamin agreed with Matha that the action appears politically motivated. She also reassured Band members that “the level of law enforcement services will remain stable and be unaffected.”
She and Matha both said Tribal Police officers will exercise their authority under Federal and Tribal law if no agreement is reached in 30 days. In addition, Matha believes Tribal Police officers will retain significant law enforcement authority under State law, notwithstanding the County’s revocation of the law enforcement agreement. The Band has a separate agreement with Pine County, which will not be affected by Mille Lacs County’s action.
“Unfortunately for our non-Indian neighbors,” Melanie said, “the majority of any negative impact from the County’s actions will be felt by our friends who have come to rely upon and value the swift response of Tribal police in the northern portion of Mille Lacs County.”
The County’s resolution lists several reasons for terminating the agreement:
– The Band’s attempt to modify Minnesota Statute, sec- tion 626.90, which establishes the authority of the Tribal Police Department to enforce state law. “These changes were focused on allowing the Mille Lacs Band of Ojibwe’s law enforcement authority to continue whether or not a cooperative agreement existed in Mille Lacs County,” the resolution states.
– The Band’s ability to self-refer cases to the U.S.Attorney’s Office under the Tribal Law and Order Act, which would “be a direct violation” of the law enforcement agreement.
– The Band’s participation in an Intertribal Violent Offenders Task Force Joint Powers Agreement under its “inherent tribal authority,” which the County says violates state law.
– The Band’s alleged “exercise of law enforcement authority outside of its jurisdiction” and “failure to cooperate and coordinate with the Mille Lacs County Sheriff’s Office, which has jurisdictional authority throughout all of Mille Lacs County” according to Public Law 280.
Matha said that none of these reasons has merit. Nothing in the agreement prevents the Band from seeking changes in State law or from exercising its authority under federal law – whether by referring cases to the United States for prosecution, participating in an intertribal task force, or exercising its inherent law enforcement authority within its reservation. In each case, the County is objecting to the Band’s initiatives to improve law enforcement for the benefit of all reservation residents. The objections are rooted in the County’s desire to control the Band’s law enforcement activities, deny the Band’s inherent sovereign authority and disestablish its reservation, not a good faith dispute regarding the Band’s compliance with the existing agreement.
The County resolution concludes that “the relationship between Mille Lacs County and the Mille Lacs Band of Ojibwe regarding law enforcement is no longer cooperative” and “no longer serves the interest of public safety for the benefit of all residents in Mille Lacs County.” However, according to Matha, the County has been threatening to terminate the agreement since it was first informed that the Band would be applying for concurrent federal criminal jurisdiction on the reservation.
The County requests that the Band cooperate with an audit of the Tribal Police Department’s evidence room and turn over all contents to the Mille Lacs County Sheriff’s Office prior to the termination of the agreement. Matha said that the Band objects to the request for an audit.
The resolution also states that “Mille Lacs County rejects the conclusions of the M-Opinion and the Mille Lacs Band of Ojibwe’s use of the criminal justice system to address the disputed boundary of the Mille Lacs Indian Reservation.”
Last November, the Office of the Solicitor of the U.S. Department of Interior released Solicitor’s Opinion M-37032, a legal opinion concluding that the 1855 Reservation boundaries are still intact, contradicting claims by the State and the County that the reservation was diminished and disestablished by subsequent treaties and laws.
The opinion presents a detailed analysis of the facts and concludes that the Band and Federal position is correct.
The M-Opinion was prepared as part of the federal government’s January decision to grant the Band’s request for federal law enforcement help under the 2010 Tribal Law and Order Act.
The County’s obsession with the boundaries, which have little effect on non-Indian residents of the County, led to a law- suit filed in 2001 by the County against the Band. The suit was ultimately dismissed (after the County and Band spent over two million dollars on the case) because the County could not show it had been harmed in any way by the Band’s position regarding the boundaries.
The County’s resolution says the Band “deliberately withheld” the M-opinion for five months, even though the opinion was made available to the public in January on the website of the Interior Department.
Stories on the Band website and in the Inaajimowin, which are available to the public, made reference to the TLOA decision and the M-Opinion, as did posts on the Band’s social media sites beginning in January.
According to Band Solicitor General Matha, the County At- torney indicated that he was aware of the M-Opinion in Feb- ruary, and the scope of the TLOA decision was specifically discussed at a meeting that month. A direct link to the Opinion was provided on the Band’s website and in the Inaajimowin in May.
Noting that the county has spent millions of dollars employing private attorneys to fight nearly everything the Band does, Chief Executive Melanie Benjamin remarked, “My responsibility is to Mille Lacs Band Members. At the State of the Band Ad- dress in January, I told nearly 1000 Band Members about this development in detail. It is not my job to assist their attorneys in monitoring public documents for Mille Lacs County.”
Another example of irony: It was the County’s objection to the Band’s position regarding the reservation boundaries in the Band’s Tribal Law and Order Act application that led to the creation of the new M-Opinion. (To read or download the opinion, go to https://solicitor.doi.gov/opinions/M-37032.pdf)
The termination of the agreement will have major ramifications for the Tribal Police, according to the County resolution. In essence, the County claims that “the Mille Lacs Band of Ojibwe shall not have the powers of a law enforcement agency.”
Attached to the County’s resolution is a long list titled “Transitioning of Tribal Law Enforcement Agreements,” including the following:
– Tribal Police will no longer have access to the Criminal Justice Information System Data Exchange or other crim- inal tracking and analysis data.
– Tribal Police will need to deliver all government records under the Minnesota Government Data Practices Act to Mille Lacs and Pine counties.
– Tribal Police will no longer have access to Automated Li- cense Plate Reader data.
– Tribal Police will no longer have a Mutual Aid agreement with the County and other law enforcement agencies.
– Tribal Police will no longer have access to ARMER, the
statewide emergency radio network.
However, Matha pointed out that the County’s position disregards applicable provisions of state law, the Pine County agreement, and the Band’s inherent law enforcement authority under federal law.
Mille Lacs County Attorney Joe Walsh told the Mille Lacs Messenger on June 21 that the County’s decision was “the in- evitable result of a series of decisions made by the Mille Lacs Band of Ojibwe.” He said he would do all he could to try to put together a new law enforcement agreement.
In May, Walsh told the Inaajimowin that he hoped the County and Band were at “the beginning of a new chapter of our relationship that will continue to improve for our mutual benefit.”
He referred to the “acrimonious” history between the County and Band and said, “I am convinced that neither party will be able to achieve its goals until we put this history behind us and work toward achieving common goals together.”
The law enforcement agreement was required by Minnesota Statute, section 626.90, as a condition for the Band to appoint peace officers under state law. It was passed in 1991 by the State Legislature as an alternative to retroceding State criminal jurisdiction within the reservation to the United States. The statute applies throughout the Band’s trust lands and the entire 61,000-acre Mille Lacs Reservation as established by the Treaty of 1855.
Because Minnesota is a Public Law 280 state, the state has criminal jurisdiction on reservations, with the exception of Red Lake and Bois Forte.
The agreement functioned well until 2007, when the Band pulled out of the agreement because the county was demanding to see all Tribal Police reports — not just those involving enforcement of state law.
The Band said its officers could enforce Band law throughout the 61,000 acres, but the County said it could not.
A new agreement was signed giving the county attorney responsibility for prosecution of any person arrested by Band officers under section 626.90, but conceding that tribal police may act independently of section 626.90, and that in those cases, no report to the county attorney is required.
The agreement also allows tribal police to forward any report to the Band’s chief of police or solicitor general, and it does not “authorize, govern or limit the Band’s exercise of its own law enforcement authority or the Band’s prosecution of any crime or traffic offense within its prosecutorial jurisdiction.”
At the time, county negotiators, including Commissioner Frank Courteau and private attorney Randy Thompson, called the agreement “fragile.” Courteau, who has since left the area, said, “It may last 10 minutes and it may last 10-plus years.”