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Appeals court hears sides in tribal caseBy Joel Stottrup Another busload of people from Mille Lacs County went to and from the federal courthouse on Robert Street in St. Paul last Friday in connection with the ongoing Indian reservation boundary dispute in northern Mille Lacs County. Indians and non-Indians who came to the courthouse to hear an appeal in the case said little or nothing to each other as they waited on an upper floor of the same courthouse where many of the same people had been last January. This was another crowding of people (this time about 80) onto the long wooden pews in a courtroom of the federal courthouse to sit silently as court staff prepared the courtroom for the hearing. It was another straining of ears to hear the attorneys for Mille Lacs County and First National Bank of Milaca, and the attorney for the Mille Lacs Band of Ojibwe as they presented their case. That was the atmosphere Friday as Mille Lacs County and First National Bank of Milaca appealed a federal court's dismissal last May of the county and bank's lawsuit. The lawsuit was to ask the federal court to decide if the Ojibwe band has the 61,000-acre reservation the band claims it has. The appeal Friday was before a three-judge panel of the 8th U.S. Circuit Court of Appeals. When the appeal hearing ended during noon hour Friday, the tension that was evidenced between the Indian band and a group that calls itself the Tea Party from northern Mille Lacs County, was still there as people left the courthouse. The Tea Party has been opposing the band's assertion that there is a 61,000-acre reservation. "When are you going to quit?" asked longtime Mille Lacs resort owner Joe Karpen of Don Wedll, a long- range planner with the Mille Lacs Band of Ojibwe, as the two stood in the federal courthouse lobby ready to leave after the hearing Friday. "We didn't do anything," Wedll responded. "You started it." And the arguing continued before they finally left the lobby. Start of lawsuit The county lawsuit, with the Milaca bank as an intervening plaintiff over the reservation boundaries, was filed on Feb. 19, 2002. The case finally made it to a summary hearing before federal Judge James Rosenbaum last Jan. 24. The Tea Party organized a busload of people to attend that hearing and they were among the 100 who showed up at the hearing. The overflow crowd didn't all fit in the courtroom so some had to listen through a monitoring system in a side room at the courthouse. Judge Rosenbaum asked attorney Tom Tobin, representing the county, and attorney Scott Knutson, representing the bank, if they could show any harm done to the county or bank because of the band asserting it has a 61,000-acre reservation. Tobin's case included facts that the 61,000-acre reservation of 1855 was disestablished in 1863-64 and that the Nelson Act of 1889 declared the band had to relinquish its right to staying on that 61,000-acre area. Rosenbaum, in a judgment about 100 days later, dismissed the county and bank's case, saying they couldn't show there was harm caused. By August this year the county and bank filed an appeal to the 8th U.S. Circuit Court of Appeals, asking the court to overturn Rosenbaum's decision. Some weeks later the attorneys general in Minnesota and South Dakota filed friends of the court briefs supporting the county and bank's appeal. The appeal Getting into the courtroom Friday tested the patience of the approximately 80 who showed up. It turned out that instead of the appeal hearing taking place about 9:30 a.m. as had been scheduled, it didn't begin until after 11:30. Several times courthouse staff had to tone down the conversations that seemed to grow louder among the people waiting in the hallway so they wouldn't disturb proceedings inside the courtrooms. When the clerk of court realized many more had shown up for the hearing than courthouse staff had expected, she began wondering if new arrangements should be made. The clerk explained that the scheduling of the appeal to be in a courtroom that holds about 40 to 50, had taken place at the circuit court's base in St. Louis, Mo., and no one there expected the high turnout of spectators in St. Paul. So the clerk ended up rescheduling the hearing for the end of the morning's calendar and changing it from Courtroom 2 to Courtroom 1. People were finally let into Courtroom 1 at 11:30 a.m. Seated at the attorneys' tables were Mark Slonium, Washington state, representing the band; Tom Tobin, Winner, S.D., representing the county; and Twin Cities attorney Knutson representing the Milaca bank. Among the spectators were Melanie Benjamin, chief executive officer of the Mille Lacs Band of Ojibwe, and John Swimmer, the band's solicitor general. Mille Lacs County Commissioners Roger Neske of rural Princeton and Robert Hoefert from the Mille Lacs Lake area attended, as did Sen. Betsy Wergin and Rep. Sondra Erickson from the Princeton area, and Pete Allen, chief executive officer of First National Bank of Milaca. After a wait of nearly 10 minutes in dead silence in the subdued lighting of the dark-paneled courtroom, the three appellate judges walked in. William J. Riley, the judge who would be asking most of the questions, sat in the middle, Judge Pasco M. Bowman sat on the left and Judge Lavenski R. Smith sat on the right. Riley thanked the crowd for tolerating the long wait and rescheduling. Tobin and Knutson presented their cases first, each taking 15 minutes, followed by Slonium's response to both, and then Tobin and Knutson each getting a minute each to rebut Slonium. After Tobin laid out a brief history of the changes around Mille Lacs Lake regarding the reservation since the mid-1800s, Judge Riley began his questions. It is sometimes still heard that "Mexico claims Texas" but yet there is no imminent threat that Mexico is going to take over Texas, Riley said. He was hinting that Mille Lacs County and the bank shouldn't have fears of the Ojibwe band taking them over. What harm is so imminent in the band asserting it has a 61,000-acre reservation, Riley asked Tobin. "We maintain the county has suffered injury," Tobin answered. Tobin then quoted case law that he said supports that a controversy over Indian sovereignty can constitute injury. He also said that if a reservation of 61,000 acres still exists, then the band may exercise certain authority in that area. Riley asked Tobin for any examples of problems in Mille Lacs relating to a reservation assertion. Tobin answered, "Several." He cited an affidavit testifying to a case of an incident involving a plan to build a road within the disputed area. Tobin also noted that when the Mille Lacs band successfully sued a decade ago to be free of state regulations on the band's hunting, fishing and gathering, the court allowed the county to intervene on the side of the state because of the county's land interests. Tobin indicated that an uncertainty about the reservation size could lead to liability problems about who has the right to enforce traffic laws in that area. Riley asked Tobin about the road project permit and Tobin explained it. According to Mille Lacs County Attorney Jan Kolb, the county had wanted to build a road in the disputed reservation area and an Army Corps of Engineers employee said the county had to first get a federal permit having to do with archaeological grounds. Kolb said on Tuesday this week that if the county sought the permit it would be admitting that area was part of the reservation, but yet stood to lose government money for a biking trail if it couldn't build the road. Kolb also provided the background brought up in the appeal of an Environmental Protection Agency employee telling a convenience store owner in the disputed reservation area that because of a tribal program he was administering, the store owner had to comply with federal guidelines. The store owner, said Kolb, was left not knowing if that meant having to choose between federal and state guidelines. Knutson's turn Attorney Knutson tried to show the judicial panel that the bank with its branch in Isle and its holding of mortgages on land in the Mille Lacs Lake area is being harmed by the reservation boundary controversy. "The band has caused adequate injury," Knutson said. Knutson pointed to sworn testimony by Allen of First National Bank in Milaca that certain band regulatory authority would depress property values. "Has the band taken any actions to enforce those regulations?" Riley asked. Knutson answered that the band has said it would assert authority on all who do business with the band authority. When Riley asked if the band had attempted to enforce that authority, Knutson said the band had sent out letters about a decade ago saying it could do so. Riley said he didn't think federal court was the place to take action at this time. Later, when Knutson said that the case of Mille Lacs County versus the band is not like someone saying Mexico could take over Texas, Riley agreed that it was not the best analogy. But there will always be people who claim they own more land than they do, Riley said. Slonium's Slonium told the judicial panel that the band has never tried to enforce its authority over the county or the bank. Slonium, responding to remarks about a road permit, said he thinks it referred only to band issues, and mentioned something about archaeological checks. Slonium continued that the band applied to the Environmental Protection Agency for status as a state as the band proposed to build a cooperative sewage treatment plant. That was for the purpose of the band being able to enforce regulations under the safe drinking water act, Slonium said. The EPA developed the regulations, he added. Judge Bowman noted that the bank has said the threat that the band may someday enforce certain regulatory authority hinders the making of loans. There is nothing in the record to support that, nor anything to show that the bank has been doing anything different, Slonium answered. The "mere existence" of a regulation doesn't constitute a threat, Slonium added. When Riley repeated the plaintiff's claims that the tribe's actions have devalued property in Mille Lacs, Slonium responded that there is no evidence of that. "The band never threatened to apply the law to the bank," Slonium said. "There was never any threat of a lawsuit, no contact with the bank until the lawsuit [by the county and bank]." The value of property in the area of the 61,000 acres is no different than the property outside of it in regard to its rise in value, Slonium added. Slonium, under Riley's questioning, said the band has "very little authority over non-band people." It has no authority in the criminal law area and very little in civil law over non-band people, Slonium said. He said the Mille Lacs Ojibwe band is interested in building up the reservation's economy and bettering its members, and is not interested in regulating non-band people. Slonium also objected to the plaintiffs bringing up information they had gathered that had not been presented in federal district court last January. Slonium, summarizing the defendants' views, said the case is "contentious" and "draining on the litigants." Attorney Tobin, in response, said evidence in testimony for the plaintiffs' case states that there is a negative impact on property in the disputed area. The reservation boundary issue is a "legitimate controversy" and needs to be researched, he said in support of having the federal court rule on the reservation question. Attorney Knutson, in his response to Slonium, said the band's assertion of regulatory authority depresses property values. Judge Riley, at the end of the hearing, told the attorneys and the crowd that all sides had argued their cases very well and that their briefs were well written. The appellate judge panel is now reviewing the proceedings of Friday's appeal before making their decision of whether to overturn the federal district court's dismissal of the original lawsuit by the county and bank. A court clerk at the federal courthouse Monday said that the appellate judges traditionally try to make a decision in an appeal in 60 to 90 days but are not bound to any specific deadline. Princeton Union-Eagle |