ST. PAUL — The Mille Lacs Indian Reservation still exists, and it covers some 61,000 acres along the southern shore of the massive Minnesota lake.
That statement, made Wednesday, Feb. 19, in court papers by Minnesota Attorney General Keith Ellison, attempts to reverse decades — if not more than 150 years — of state policy on a contentious issue that could have far-reaching implications for the tourist destination and thousands of property owners.
Ellison’s move, which is supported by Gov. Tim Walz, aligns with a relatively new federal policy and appears to embody a new era of legal review that is more friendly to grievances long held by Native Americans. Ellison’s position marks a 180-degree change from his predecessors, fellow Democrats and former Attorneys General Lori Swanson and Mike Hatch, and Walz’s endorsement of the stance reverses the positions of previous governors of both parties.
The change is sure to fuel long-simmering tensions in the central Minnesota communities that now could be considered to be inside Indian Country, and it makes it more likely that the latest court battle on the issue will head to the United States Supreme Court.
How big a deal?
Ellison’s position doesn’t immediately change anything on the ground.
His office’s arguments are contained in a motion filed Wednesday in Ramsey County seeking to dismiss a lawsuit brought by the Mille Lacs County attorney and the county sheriff.
Technically, that case is just about legal fees. But the big prize in that and a related federal case revolves around the boundaries of the Mille Lacs Reservation — if one still exists.
If it does, and if it’s in fact 61,000 acres, that could mean that thousands of non-tribal residents and businesses, including the communities of Isle, Wahkon, Vineland and part of Onamia, will be subject to the authority not of local elected officials, but the federal government, which has jurisdiction over such tribal lands, along with tribal authorities.
While no one is asserting that anyone is about to be kicked off their land, Mille Lacs County leaders have warned that a host of governmental functions, from business licenses to taxes to environmental regulations to perhaps southern-shore access to some of the lake’s prized walleye-fishing waters, could be subject to sweeping changes outside of their — or their residents’ — control.
That’s the fear at least.
The band says those fears are unfounded.
In public statements and legal filings, the Mille Lacs Band of Ojibwe has repeatedly stated that the band’s only interest in legally solidifying the 61,000-acre boundary is to clarify things so tribal and county police can better work together as they combat crime.
After decades generally characterized by cooperation, in 2016, the Mille Lacs County Board voted to end a law enforcement agreement with the band. Amid an epidemic of opioid addiction and troubling levels of violent crimes, an ensuing two-year standoff spawned a level of relative lawlessness that prompted then-Gov. Mark Dayton to intervene, calling it “intolerable” and “dire.” In 2018, the county and the band reached an agreement — but without clarifying the boundary dispute.
How many acres?
The band’s 61,000-acre boundary is simple. The borders were created in an 1855 treaty between the Chippewa Indians and the United States. They encompass what today include the townships of Kathio, Isle Harbor, South Harbor and three islands in the lake. According to the band, that part of the treaty remains in effect.
But the county maintains that subsequent treaties and acts of Congress diminished and ultimately ended the official reservation. Today, the county believes that what remains of that original reservation amounts to about 4,000 acres of scattered lands held in trust by the federal government.
What’s undisputed is that soon after treaties in 1863 and 1864, white settlers began moving onto the land. Pressure was high locally and in Washington, D.C., to open pine forests to timber harvests and to somehow clear the land of American Indians. Federal policy sought to relocate the people classified as Chippewa to the White Earth or Red Lake reservations.
The super-short history: It mostly worked, and homesteaders settled the area — although large number of American Indians remained.
Whether the transformation was morally right — or legal — has been hotly contested. But the state of Minnesota has long maintained the same position currently taken by Mille Lacs County.
“Minnesota’s position has been, and is today, that the Mille Lacs Reservation was disestablished through later federal treaties and laws,” then-Gov. Arne Carlson wrote in 1995, when the issue flared up.
That position has been echoed by at least former Gov. Tim Pawlenty, a Republican, as well as Hatch and Swanson, according to records reviewed by the Pioneer Press.
The federal government’s legal position over the years has been trickier to pin down, although it was a major enabler of the reality: Non-Native Americans get to move in and govern themselves.
However, in 2015, the Department of Interior under President Barack Obama undertook a significant effort to establish a new position, which federal officials argued was based on a detailed historical examination and “modern day values.” The resulting opinion amounted to siding with the band.
“Sadly, this historical overview reveals that the United States’ dealings with the Band were not always a shining example of fair and honorable dealings, as it reveals a series of interactions fraught with hidden agendas, arbitrary shifts in policy, utter confusion, and broken commitments,” the opinion reads.
It concludes that the 61,000-acre reservation remains intact.
It’s that Department of Interior opinion that Ellison relies heavily on in his arguments filed Wednesday by Assistant Attorney General Stacey Person. The motion became public Thursday.
In a statement Thursday, Ellison acknowledged the historical change in posture.
“Some State officers have in the past expressed different positions, but those positions did not take into account recent legal developments,” he said. “The State’s current position is consistent with the federal government’s interpretation. The pending federal litigation between the Band and Mille Lacs County will likely resolve this question, as federal courts are the final arbiter of these issues.”
That federal litigation involves the band asking a federal judge to declare that the 61,000-acre reservation still exists. Whichever way the judge in that case decides, the ruling will likely be appealed, and the loser will likely appeal that decision to the U.S. Supreme Court, which could take up the issue or let the appellate ruling stand. A final resolution is likely years away.
The nation’s high court has weighed in on Mille Lacs tribal issues before. In 1999, the justices ruled in favor of the Mille Lacs band against the state over tribal members’ treaty rights to fish Lake Mille Lacs. That decision, which led to the current situation where tribal members are allowed to net a certain amount of walleye en masse, remains contentious today.
Politics in play?
A spokesman for Walz said he’s on board with Ellison.
“The Attorney General’s action brings clarity to the state’s position on the boundaries of the Mille Lacs reservation and is consistent with the federal government’s view,” spokesman Teddy Tschann said. “The Governor agrees with the Attorney General’s legal analysis of this issue.”
After serving in Congress, both Walz and Ellison were elected to their state offices in 2018, a year that saw Native Americans elected to prominent roles across the country, including Minnesota, as terms like “indigenous people” spread in political discourse among progressives. That year, Lt. Gov. Peggy Flanagan, who is a citizen of the White Earth Nation of Ojibwe, was elected with Walz, and the two have stated a desire for a new era of cooperation between the state and Minnesota’s Native American residents.
Mille Lacs County Attorney Joe Walsh Thursday said Ellison’s office never consulted with him and suggested the band’s political influence played a role.
“It is surprising and disappointing that a filing from the Attorney General’s office would disregard more than 100 years of policy and precedent by Minnesota governors and attorneys general,” Walsh said. “It is inexplicable that the Attorney General’s office would take this step without talking to Mille Lacs County or the residents who would be directly affected by having their homes and other property reclassified as Indian country.”
Walsh said the developments send “a chilling message to every local elected and appointed official that the State may not have our backs if local governments are defending themselves and the rights of Minnesota citizens against politically well-connected interests.”
In a statement Thursday, Mille Lacs Band Chief Executive Melanie Benjamin praised Ellison’s position.
“The Mille Lacs Band welcomes the State’s acknowledgement that our reservation continues to exist,” Benjamin said. “The reservation’s existence honors the decades-long struggle of our ancestors to remain at Mille Lacs despite overwhelming odds, and is no threat to our non-Indian neighbors. We want to be good neighbors and prosper together.”