Band asks for case to be dismissed

by Dawn Slade
Posted 11/20/02

Mille Lacs Countyís lawsuit against Melanie Benjamin and the Mille Lacs Band of Ojibwe regarding the status of the Mille Lacs Reservation is at a new stage in the process.

On Oct. 4 the Mille Lacs Band of Ojibwe submitted a motion for summary judgement to the United States District Court in Minnesota.

The Band is requesting the court dismiss the case.

In its motion, the Band states, "This action should be dismissed because Plaintiffs have not demonstrated any actual or imminent harm to any legally protected interest resulting from the Bandís belief that its Reservation continues to exist. This action should also be dismissed because the Band has sovereign immunity."

It goes on to say, "The Ex Parte Young exception to sovereign immunity does not allow a suit against Band officials where the aim of the suit is to strip the Band of its sovereignty over Reservation Lands.

"Finally, this case should be dismissed because the United States has independent interests in the treaties and agreements put at issue by Plaintiffsí claims and is an indispensable party to this action."

Don Wedll, special assistant to Melanie Benjamin said, "The court will decide whose argument is the correct one and make a decision about that.

"The bandís position is that thereís a lot of rumors out there about what the band is going to do and theyíre just incorrect. Yet, people continue to say them and try to use that as an argument as to why they need this court case."

Mille Lacs County and the First National Bank of Milaca, who joined the countyís suit in May, 2002, filed briefs last week in response to the Bandís motion for summary judgment.

In the introduction of the First National Bankís memorandum of law opposing the defendantís motion for summary judgment, the bank states, "Despite defendantsí suggestions that this case does not present a true controversy, the simple fact is that the scope of the Bandís authority - and by extension, defendantsí ability to regulate activities and persons - is dependent on reservation boundaries.

"Similarly, the ability of the State of Minnesota and its political subdivisions to enforce certain of their laws is directly dependent on the existence - or non-existence - of the 1855 Reservation."

Further into the brief, the bank states, "The Band has also taken an aggressive course of action in dealing with businesses within the former 1855 reservation. For example, in 1992, the Band wrote to area businesses within that area, announcing the Bandís plan to require all businesses operating within the boundaries of the former reservation to be licensed by the Band.

"The Bandís aggressive posture has caused significant unrest in the Mille Lacs area, and citizens living within the former reservation boundaries have expressed deep concern over the Bandís ever expanding assertion of power."

B.P. (Pete) Allen, chairman of the board for the First National Bank of Milaca said, "Itís a highly technical legal question and it will be up to the courts to decide."

In the countyís brief responding to the motion, it states, "The simple fact is that if property is within the exterior boundaries of a reservation, a tribe enjoys sovereign powers that it would not otherwise enjoy. If reservation boundaries remain intact, the County and the State of Minnesota are deprived of sovereign powers they would otherwise enjoy. The existence or non-existence of reservation status is most certainly a matter of ëreal, practical consequence.í"

Mille Lacs County Commissioner Frank Courteau told the Times, "Hopefully, we will soon get beyond these time-consuming and costly attempts by the Band to get the case dismissed on technical grounds.......and to the merits of the Band's claim that the 61,000 acre reservation, as established by the Treaty of 1855, continues to exist as originally established."

The Band has asked for oral argument on their motion. The judge will decide when to hear those arguments and make a ruling thereafter. However, the judge may also make a ruling on the motion, without hearing arguments.

The trial is scheduled to take place in June, 2003.