Mille Lacs Band of Objibwe et al v. County of Mille Lacs, Minnesota et al
Filing
313
ORDER granting 223 Plaintiffs' Motion for Partial Summary Judgment; denying 239 Defendants' Motion for Summary Judgment (Written Opinion). Signed by Judge Susan Richard Nelson on 3/4/2022. (MJC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Mille Lacs Band of Ojibwe, a federally
recognized Indian Tribe; Sara Rice, in her
official capacity as the Mille Lacs Band
Chief of Police; and Derrick Naumann, in
his official capacity as Sergeant of the
Mille Lacs Police Department,
Case No. 17-cv-05155 (SRN/LIB)
MEMORANDUM OPINION AND
ORDER
Plaintiffs,
v.
County of Mille Lacs, Minnesota; Joseph
Walsh, individually and in his official
capacity as County Attorney for Mille
Lacs County; and Donald J. Lorge,
individually and in his official capacity as
Sheriff of Mille Lacs County,
Defendants.
Anna Brady, Beth Ann Baldwin, Marc D. Slonim, and Wyatt Golding, Ziontz Chestnut,
2101 Fourth Avenue, Suite 1230, Seattle, WA 98121; and Arielle Wagner, Charles N.
Nauen, and David J. Zoll, Lockridge Grindal Nauen P.L.L.P., 100 Washington Avenue
South, Suite 2200, Minneapolis, MN 55401, for Plaintiffs.
Brett D. Kelley, Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530,
Minneapolis, MN 55415; Courtney E. Carter and Randy V. Thompson, Nolan Thompson
Leighton & Tataryn PLC, 1011 First Street South, Suite 410, Hopkins, MN 55343; and
Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South
Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant County of Mille Lacs,
Minnesota.
Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South
Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh.
Brett D. Kelley, Douglas A. Kelley, Stacy Lynn Bettison, and Steven E. Wolter, Kelley,
Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN
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55415; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80
South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Donald J.
Lorge.
Table of Contents
Background .................................................................................................................. 3
A. The 1855 Treaty Establishing the Mille Lacs Reservation ................................... 4
B. The 1863 and 1864 Treaties.................................................................................. 4
C. The 1867 Treaty .................................................................................................. 12
D. Treatment of the Reservation Between 1867 and the Nelson Act ...................... 13
E. The Nelson Act ................................................................................................... 26
1. Legislative History ...................................................................................... 26
2. Statutory Provisions ..................................................................................... 27
3. The Nelson Act Agreement ......................................................................... 29
F. The Mille Lacs Reservation After the Nelson Act ............................................. 31
1. Interior Secretary Noble’s Decisions........................................................... 31
2. 1893 Resolution ........................................................................................... 33
3. 1898 Resolution ........................................................................................... 33
4. 1902 Act ...................................................................................................... 35
5. Continuing Presence at Mille Lacs .............................................................. 40
6. Prior Litigation Concerning the Reservation ............................................... 41
II. Discussion .................................................................................................................. 48
A. Standard of Review ............................................................................................. 48
B. Affirmative Defenses .......................................................................................... 49
1. Claim Preclusion.......................................................................................... 50
2. Issue Preclusion ........................................................................................... 53
3. Judicial Estoppel .......................................................................................... 56
4. Laches .......................................................................................................... 58
5. The Indian Claims Commission Act ........................................................... 61
C. Disestablishment of the Mille Lacs Reservation ................................................ 63
1. The Law of Reservation Disestablishment .................................................. 63
2. The Treaties of 1863 and 1864 .................................................................... 66
3. The Treaty of 1867 ...................................................................................... 74
4. The Nelson Act ............................................................................................ 74
5. Post-Nelson Act Congressional Resolutions ............................................... 87
6. Summary ...................................................................................................... 92
III. Conclusion .................................................................................................................. 93
I.
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SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Cross-Motions for Partial Summary Judgment
[Doc. Nos. 223 & 239] filed by the parties. Based on a review of the files, submissions,
and proceedings herein, and for the reasons below, the Court GRANTS Plaintiffs’ motion
and DENIES Defendants’ motion.
I.
BACKGROUND
Plaintiffs are the Mille Lacs Band of Ojibwe, Mille Lacs Band Chief of Police Sara
Rice, and Mille Lacs Band Sergeant Derrick Naumann (collectively, “the Band”). The
Band brought suit against the County of Mille Lacs, Mille Lacs County Attorney Joseph
Walsh, and Mille Lacs County Sheriff Donald Lorge (collectively, “the County”) seeking
declaratory and injunctive relief regarding the Band’s law enforcement authority within the
Mille Lacs Reservation. (See generally Compl. [Doc. No. 1].)
An integral part of the parties’ dispute, and the issue now presented to the Court on
the parties’ Cross-Motions for Summary Judgment, is whether the Mille Lacs Reservation
has been disestablished or diminished by Congress. In order to resolve this important issue,
the Court must interpret a series of treaties and Acts of Congress dating back to the
nineteenth century. The following recitation of the record, which is largely undisputed,
begins with the 1855 treaty establishing the Mille Lacs Reservation. The Court then
examines the 1863, 1864, and 1867 treaties, which the County contends resulted in the
disestablishment of the reservation. Next, the Court explores the treatment of the Mille
Lacs Reservation between the Treaty of 1867 and the Nelson Act of 1889, the provisions
and history of the Nelson Act, and the Band’s written agreement to the Nelson Act (the
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“Nelson Act Agreement”). The Court concludes by examining the reservation’s history
following the Nelson Act, including its treatment by Congress, federal officials, and the
courts.
A.
The 1855 Treaty Establishing the Mille Lacs Reservation
The Mille Lacs Reservation was established by the 1855 Treaty with the Chippewa,
as one of six tracts of land “reserved and set apart . . . for the permanent homes” of the
Mille Lacs and other Mississippi Chippewa bands party to the treaty. Treaty with the
Chippewa art. 2, Feb. 22, 1855, 10 Stat. 1165 (hereinafter “Treaty of 1855”). The Treaty
of 1855 set aside more than 61,000 acres along Lake Mille Lacs for the Mille Lacs Band.
See id. The treaty also established additional reservations for the Mississippi Chippewa at
Gull Lake, Pokegama Lake, Rabbit Lake, Rice Lake, and Sandy Lake. Id. In addition, the
treaty established reservations for the Pillager and Lake Winnibigoshish bands at Cass
Lake, Leech Lake, and Lake Winnibigoshish. Id. Under the Treaty of 1855, the Mille Lacs
Band and other Indian signatories gave up their aboriginal territory and agreed to “cede,
sell, and convey to the United States all their right, title, and interest in, and to, the lands
now owned and claimed by them, in the Territory of Minnesota.” Treaty of 1855 art. 1.
B.
The 1863 and 1864 Treaties
Following increased tension between Minnesota’s Indian tribes and white settlers,
Minnesota’s Dakota Sioux began an uprising in 1862, leading to the deaths of several
hundred settlers over the course of six weeks. (Decl. of Courtney Carter (“Carter Decl.”)
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[Doc. No. 242], Ex. 5 (“Rife Rep.”), at 18 1.) During the Dakota uprising, Chief Hole-inthe-Day (the Younger) of the Gull Lake Band of Chippewa—a signatory of the 1855
Treaty—gathered warriors to launch his own campaign against white settlers. (Id. at 19.)
When the Mille Lacs Band learned that Chief Hole-in-the-Day planned to attack the
garrison, refugees, and government officials at Fort Ripley, the Band’s chiefs refused to
participate in Hole-in-the-Day’s uprising and sent their own warriors to protect the fort and
nearby settlements. (Id. at 21-22; Decl. of James McClurken (“McClurken Decl.”) [Doc.
No. 235], Ex. A (“McClurken Rep.”), at 42.) Hole-in-the-Day’s attack was averted, and
Commissioner of Indian Affairs William P. Dole—who had been at Fort Ripley—praised
the Mille Lacs Band’s actions as going “far in enabling us to finally effect a settlement of
the Chippewa difficulties without resort to arms.” (Rife Rep. at 22.)
Following Hole-in-the-Day’s brief uprising and the conclusion of the far bloodier
Dakota uprising, the United States sought to remove the Mississippi bands to a reservation
near Leech Lake. Through negotiations at Crow Wing in the winter of 1862–1863,
representatives of the United States sought to convince the Mille Lacs Band to cede the
reservation established under the Treaty of 1855. (McClurken Rep. at 44-48.) Despite the
danger to the Band posed by nearby settlers, who were unhappy with the Lincoln
Administration’s resolution of the Dakota uprising, Mille Lacs Chief Shaboshkung—a
signatory of the 1855 Treaty—“scuttled any discussion about the potential cession of the
Pin-cites to the record reference page numbers assigned by the Court’s ECF
system, where available. Where the ECF system has not assigned page numbers, pin-cites
reference the document’s internal page numbers.
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1855 Mille Lacs Reservation and the Band’s removal to Leech Lake,” and the Mississippi
bands sought instead to negotiate directly with the Secretary of the Interior and the
Commissioner of Indian Affairs in Washington, D.C. (Id. at 46-48; Rife Rep. at 26-27.)
The Band’s opposition to removal from their reservation was fueled by their belief that
Commissioner Dole had promised them that, due to their aid during Hole-in-the-Day’s
uprising, they would not be forced to leave the Mille Lacs Reservation. 2 Prior to departing
for Washington, D.C., the Ojibwe delegates met in St. Paul to strategize. In order to
preserve the Mille Lacs Reservation, the delegates proposed ceding several bands’
reservations on the condition that the ceding bands would be permitted to relocate to Mille
Lacs. (McClurken Rep. at 48-49.)
Negotiations commenced in Washington, D.C. in February 1863. Representatives
from all six Ojibwe bands were present, with Shaboshkung leading the Mille Lacs
McClurken Rep. at 47-48, quoting Bishop Henry Whipple’s January 22, 1863
letter to Commissioner Dole, which stated:
2
The Mille Lac Indians and Bad Boy say that they held a council with you
[Dole] at Fort Ripley and proved satisfactorily to you that they had resisted
the outbreak and when their lives were in danger proved themselves the white
mans friend. They say that you [Dole] promised them that they should be
protected and rewarded, and that Hole-in-the-Day & his followers should be
punished, that after Mr. White returned to Washington, he wrote to Mr.
Johnson in the name of the Sec of the Interior & promised the same thing,
that when Judge Usher came he promised that all their wrongs should be
redressed and that Hole in the Day should be punished. They [the Mille Lacs
Ojibwe] say that now they who have proved themselves true men are to lose
their lands and be sent with bad Indians to a new home where these men will
give them trouble.
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delegation. (Rife Rep. at 28.) Secretary of the Interior John P. Usher and Commissioner
Dole represented the United States. (Id.)
During the negotiations, Secretary Usher attempted to persuade the Mille Lacs to
leave their reservation, arguing that removing to Leech Lake would offer a reprieve from
flooding caused by lumbermen damming the Rum River and from interference by settlers.
(McClurken Rep. at 51-52.) Usher also expressed the concern that Minnesotans had settled
at Lake Mille Lacs, and that concentrating the bands there—as the delegates had discussed
in St. Paul—would result in conflict. (Id.) Shaboshkung and the representative of the Leech
Lake Band countered that the proposed reservation near Leech Lake lacked sufficient
arable land for all the bands; and Shaboshkung disputed Usher’s claim of white settlement
at Mille Lacs. (Id. at 53-54.) Consistent with the delegates’ discussion in St. Paul,
Shaboshkung proposed enlarging the Mille Lacs Reservation and removing the Gull Lake,
Rabbit Lake, Sandy Lake, Pokegama, and Rice Lake Bands to Mille Lacs. (Id. at 53.)
But Commissioner Dole expressed the concern that concentrating the bands at Mille
Lacs would provoke nearby settlers. (Id. at 54.) Dole also stated that land along Lake Mille
Lacs had been surveyed and sold, and that he therefore might not be able to add that land
to the Mille Lacs Reservation. (Id.) And Dole, recognizing that he had made promises to
the Mille Lacs following the 1862 uprisings, resisted the proposition that he had promised
that the Band would be able to remain at Mille Lacs indefinitely:
I have not forgotten the councils that I held with the chiefs here from Millacs.
I have not forgotten all my promises to them, but they remember that the
question of removal was not thought of at that time; and therefore I made no
promises to them on that subject. . . . I cannot promise but what it may be
necessary that the government should use its power for their removal, and
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the only question now is where can they go for a home where they can make
a living. It may be barely possible that the people of Minnesota will consent
to the Indians now living at Millac, to remain there . . . for the present. They
may consent in the future for them to remain there forever if they will become
good citizens. But I am sure that it will not give satisfaction to the people of
Minnesota; however much it may be desired by the Indians if we remove
them all to Millac my view of it is that at least the Gull Lake Indians will
have to remove further north.
(Id. at 54-55.) By this speech, Dole indicated his belief that the Mille Lacs Band could
safely remain at Mille Lacs for the present, that their good conduct may make it possible
for them to remain indefinitely, but that settlers would not tolerate the concentration of all
the Ojibwe bands at Mille Lacs. Dole also resisted the claim that he had promised the Mille
Lacs they could remain on their reservation as a reward for their assistance during Holein-the-Day’s uprising, asserting instead that he had not discussed the prospect of removal
at Fort Ripley and that circumstances may require their removal from the reservation. (Id.
at 54-55, 57; Rife Rep. at 29; Decl. of Bruce M. White [Doc. No. 237], Ex. A (“White
Rep.”), at 95-96.) Dole did, however, acknowledge during the negotiations that the Mille
Lacs “have earned this from the Government that they might . . . be allowed to remain
where they are at least for the present.” (McClurken Rep. at 56.)
As negotiations continued into March 1863, the Mille Lacs delegates were adamant
that they be permitted to remain permanently on their reservation, and they rejected Dole’s
proposal to require their removal after one or two years. (Id. at 55-57.) Henry Rice, a United
States Senator for Minnesota, joined the negotiations on March 6. Senator Rice, who had
experience negotiating with the Ojibwe, met with the Ojibwe delegates in unrecorded
private sessions. (Id. at 57; White Rep. at 97; Rife Rep. at 32.) Following these meetings,
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Senator Rice drafted a treaty and obtained signatures from the Ojibwe delegates by March
11. (White Rep. at 98.) There is no record of the negotiations following Rice’s private
meetings with the delegates. (Id. at 97; McClurken Rep. at 57.) In a March 18 letter to
Bishop Henry Whipple, an advocate for Minnesota’s Ojibwe, Rice wrote: “Every word in
[the treaty] (save amendments made by the Senate) emanated from my pen. I consulted no
one—Whites or Indians—and would not allow any changes.” (White Rep. at 98.)
Article 1 of the treaty provided that “[t]he reservations known as Gull Lake, Mille
Lac, Sandy Lake, Rabbit Lake, Pokagomin Lake, and Rice Lake, as described in the [Treaty
of 1855], are hereby ceded to the United States, excepting one-half section of land,
including the mission-buildings at Gull Lake, which is hereby granted in fee simple to the
Reverend John Johnson, missionary.” Treaty with the Chippewa of the Mississippi and the
Pillager and Lake Winnibigoshish Bands art. 1, Mar. 11, 1863, 12 Stat. 1249 (hereinafter
“Treaty of 1863”). The treaty established a new reservation near Leech Lake, provided for
various payments to the bands, and obligated the United States to make certain
improvements to the new reservation. Id. arts. 2–6. Article 12 made removal from the ceded
reservations contingent on the United States fulfilling its obligations under the treaty, and
provided for special treatment for the Mille Lacs Band:
It shall not be obligatory upon the Indians, parties to this treaty, to remove
from their present reservations until the United States shall have first
complied with the stipulations of Articles 4 and 6 of this treaty, when the
United States shall furnish them with all necessary transportation and
subsistence to their new homes, and subsistence for six months thereafter:
Provided, That owing to the heretofore good conduct of the Mille Lac
Indians, they shall not be compelled to remove so long as they shall not in
any way interfere with or in any manner molest the persons or property of
the whites.
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Id. art. 12.
Shortly after signing the treaty, the Ojibwe delegates met with President Lincoln in
a closed-door meeting. (White Rep. at 100-04.) Although no record of the meeting was
preserved, Mille Lacs leaders repeated Lincoln’s message consistently in the following
decades. On December 2, 1867, Shaboshkung said:
[W]e have remembered the words of our great father that he said to us six
years ago when we went down to Washington if we would behave ourselves
as we have done before that we should be let alone on the land we had before
occupyed [sic] for a hundred years or a thousand years or as long as we do
not commit any depredations to it . . . .
(McClurken Rep. at 49.) Again, on February 23, 1875, Shaboshkung described the meeting
with Lincoln:
While in this room many years ago, we spoke to the Commissioner and he
spoke good words. The President took hold of our hands and promised us
faithfully and encouraged us, and he said we could live on our reservation
for ten years, and if you are faithful to the whites and behave yourselves
friendly to the whites you shall increase the number of years to 100; and you
may increase it to a thousand years if you are good Indians, and through our
good behaviour [sic] at the time of the war, (we were good and never raised
hands against the whites) the Secretary of the Interior and the President said
that we should be considered good Indians and remain at Mill Lac so long as
we want to.
(Id. at 50.) And during negotiations with federal officials in 1886, Band leaders said:
We saw the President and Commissioner of Indian Affairs sitting in a similar
manner [in council]. This man saw them to [pointing to Mon-zo-mahinay]
[sic]. They said to us, “Sit quiet where you are; the Mille Lacs will be only a
little less splendid than Washington.” Why we were told this was because we
had always been quiet and peaceable. They told us we might stay here a
thousand years if we wished to. For ten thousand years we will sit quiet here.
Then for one hundred years, and for one thousand years, and if there be one
Mille Lacs living, then he will stay quietly by Mille Lacs.
(Id. (alterations in original).)
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Although Senator Rice won signatures from the Ojibwe delegates and represented
to Bishop Whipple that “the Indians all left [Washington] satisfied with the treaty,”
McClurken Rep. at 60, the Ojibwe had grave concerns about the treaty. Consistent with
Shaboshkung’s arguments during the negotiations, chiefs who had not attended the
negotiations in Washington, D.C.—including Hole-in-the-Day—complained that the land
set aside for the new reservation near Leech Lake was not suitable for all the bands required
to relocate there. (Rife Rep. at 36-37; McClurken Rep. at 60-61.) And the Mille Lacs chiefs
protested Senate amendments that had reduced appropriations for the implementation of
the treaty. (Rife Rep. at 36-37.) Further, after rumors that the Mille Lacs negotiators had
ceded their reservation reached Mille Lacs, their constituents made “strong and credible
threats against the negotiators’ lives.” (McClurken Rep. at 61.) Even Senator Rice was
dissatisfied with the location of the new reservation near Leech Lake, writing to Bishop
Whipple: “I did not like the location—but it was the best that could be done.” (White Rep.
at 98.)
Seizing the opportunity provided by the bands’ discontentment, Hole-in-the-Day
traveled to Washington, D.C. with Misquadace, of Sandy Lake, to renegotiate the treaty.
No record of the negotiations exists, and it is unclear why the other Ojibwe chiefs present
during the 1863 negotiations did not attend. (Rife Rep. at 39.) The resulting treaty, signed
May 7, 1864, superseded the Treaty of 1863 but was largely identical to it. (Id.; McClurken
Rep. at 62.) Article 1 still provided that the bands “ceded” their reservations to the United
States, but set apart a section of land at Gull Lake, Sandy Lake, and Lake Mille Lacs for
Chiefs Hole-in-the-Day, Misquadace, and Shaboshkung, respectively. Treaty with the
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Chippewa, Mississippi, and Pillager and Lake Winnibigoshish Bands art. 1, May 7, 1864,
13 Stat. 693 (hereinafter “Treaty of 1864”). Article 12 retained its proviso that the Mille
Lacs Band would not be required to remove, conditioned on their good behavior, and added
a second proviso that “those of the tribe residing on the Sandy Lake reservation shall not
be removed until the President shall so direct.” Id. art. 2. Article 2 was modified to slightly
expand the Leech Lake Reservation, and a provision was added to Article 3 to pay Holein-the-Day $5,000 for damage to his house following the 1862 uprisings. (Rife Rep. at 39.)
Finally, the payments provided in Articles 5 and 6 were increased. (Id. at 39-40.)
C.
The 1867 Treaty
Three years later, concerns regarding encroachment on the new Leech Lake
Reservation by lumber and railroad interests prompted another round of negotiations in
Washington, D.C. (Id. at 41.) Shaboshkung and Hole-in-the-Day, along with eight other
chiefs, represented the Mississippi bands. (Id.) Special Commissioners Lewis V. Bogy and
William H. Watson and Indian Agent Joel B. Bassett represented the United States. (Id.)
By the resulting treaty, the bands ceded much—though not all—of the Leech Lake
Reservation established by the Treaties of 1863 and 1864, and a new reservation was
established at White Earth. Treaty with the Chippewa of the Mississippi art. 1, Mar. 19,
1867, 16 Stat. 719 (hereinafter “Treaty of 1867”). The new reservation, located far from
the nearest white settlement and containing good farming land, spanned 1,300 square miles
and included the White Earth and Rice Lakes. (Rife Rep. at 42.) The Treaty of 1867 did
not mention the Mille Lacs Reservation or the Article 12 proviso in the 1863 and 1864
treaties. And federal officials did not record the negotiations leading to the treaty, so it is
12
unclear whether the status of the Mille Lacs Reservation was discussed. (See McClurken
Rep. at 74-75.) Regardless, in November 1868, Indian Agent Joel Bassett wrote to
Commissioner of Indian Affairs Nathaniel G. Taylor that the Mille Lacs Band did not
intend to remove to White Earth; rather, “[t]he Mille Lac bands of Mississippi Indians
manifest a strong desire to remain on their old reservation at Millie Lac [sic].” (Rife Rep.
at 43.)
D.
Treatment of the Reservation Between 1867 and the Nelson Act
Shortly after the Treaties of 1863 and 1864 were signed, local settlers and
government officials sought to oust the Mille Lacs Indians from their reservation. To this
end, settlers and mercantile interests endeavored to manufacture evidence of the Mille Lacs
Band’s bad conduct, so as to invoke the removal provisions of the Article 12 proviso. (See
McClurken Rep. at 67; Rife Rep. at 43-44; White Rep. at 118, 124, 126-29.) The Indian
Office never substantiated such claims. Indeed, in 1882, Commissioner of Indian Affairs
Hiram Price wrote that the Mille Lacs Band “have never violated the conditions upon
which their continued occupancy of the lands in question solely depends.” (Decl. of Marc
Slonim (“Slonim Decl.”) [Doc. No. 226], Ex. 44, at 7.) And in May 1880, the Indian Office
received a petition signed by citizens of Morrison County, neighboring the Mille Lacs
Reservation, “commending the Mille Lac Indians in the highest terms for their uniform
good conduct.” (Id.)
While some attempted to oust the Band by invoking the Article 12 proviso, others
made claims on the reservation timberland, with varying support from federal officials.
Beginning in 1871, Indian Agent Edward Smith wrote to Indian Affairs Commissioner Ely
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Parker regarding illegal entries on the reservation. Smith reported that “a man, by the name
of O. E. Garretson, has sent in men and cut from two to three million feet of pine logs,
which are being taken to market.” (McClurken Rep. at 99.) Smith requested authorization
to collect payment for the lumber, writing:
The Mill Lac reservation, though ceded by the Indians to the Government,
should not yet be subject to entry; for the Indians not having been ordered or
notified to leave, are, according to their treaty, yet entitled to all their rights
upon it.
(Id.) And Smith noted the Band’s insistence “that their lands be not thrown open to entry,
of any kind, so long as they remain, and that they be permitted to receive, as compensation
for the timber cut unlawfully upon their reservation, whatever stumpage may be awarded
by the Surveyor.” (Id. at 100.)
Two months after learning that lumber had been taken from the reservation, Smith
discovered that lumbermen had also claimed title to land within the reservation’s
boundaries. (Id.) In 1870, the Surveyor General of Minnesota had authorized a survey of
the Mille Lacs Reservation and sent the bill to the Department of the Interior. (Id.) When
the Department paid the bill and the plat of the survey was filed in the Taylor Falls Land
Office, the Register and Receiver at Taylor Falls had interpreted the payment and plat filing
as authorization to open the reservation to public entry. (Id.) Smith again wrote to
Commissioner Parker:
In this way, without permission of any sort from the Department, settlers and
lumber men are taking possession of this Indian Reserve. The consequence
is a double wrong. (1) The Indians are dispossessed without being removed,
and (2) an injustice is done the public in not being allowed an equal
opportunity to enter these lands, the very few men who in some way had
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knowledge of the time when entries would be received having been ready to
take the lands.
About one fourth of these lands are taken by scrip . . . which will be shown
to be largely fraudulent. The other entries are under preemptive claims for
lumbering purposes and preparations are making for extensive lumbering
next winter.
(Id. at 101.) Smith requested, “in the name of these Indians,” that all the entries “be
canceled as without authority of law, and that I may be authorized to protect this reservation
[Mille Lacs] from any encroachments until the Indians are removed.” (Id. (alteration in
original).)
Commissioner Parker then wrote to the Commissioner of the General Land Office,
stating that “no part of said reservation should be considered as subject to entry or sale as
public lands.” (Id.) The General Land Office instructed officials at Taylor Falls:
You are now informed that these lands are still occupied by the Indians and
are not subject to disposal, and you are requested to give public notice by
advertisement in a newspaper of general circulation in that neighborhood of
the above fact and also that all settlements and entries thereon are illegal and
will not be recognized by this office . . . you will allow no Entries on these
lands until so ordered by this office.
(Id.) And in September 1871, the United States Attorney General ordered the United States
District Attorney for Minnesota to prosecute trespassers on the reservation. (Id. at 103.)
Throughout the controversy in 1871, federal officials conveyed their understanding
that the Band retained exclusive rights to the Mille Lacs Reservation. Agent Smith wrote
to the Governor of Minnesota: “their Reservation at Mill Lac, their right to which has never
been relinquished or in any way extinguished, has been seized by white men and covered
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with fraudulent scrip and preemption claims equally fraudulent . . . .” (Id. at 104.) Secretary
of the Interior Columbus Delano, in a September 4, 1871 letter to Agent Smith, wrote:
This Department has no information leading to the belief that [the Article 12]
proviso has ever been violated and is therefore of the opinion that the Mille
Lac Indians are entitled to remain at present unmolested on their reservation
and that their occupancy cannot be disturbed until they shall interfere with or
in some manner molest the persons or property of the whites.
(Id. at 105.)
Although the Mille Lacs Reservation remained closed to entries for the next twenty
years, timber trespasses continued. As Agent Smith aptly predicted at the end of 1871:
Unfortunately for these Indians, their reservation is rich in pine lands, which
makes them the prey of lumber-dealers, and a strong pressure is kept up on
all sides to secure their early removal. . . .
There is little doubt that, owing to the presence of this valuable pine, the
efforts on the part of the whites to get possession will not be relaxed, and it
cannot be long before a sufficient pretext will be found to enforce their
removal.
(Slonim Decl., Ex. 22, at 1005–06.) Smith therefore opined that “the best interest of the
Indians will be promoted by their early removal to the White Earth reservation,” and that
appropriations should be made to develop the White Earth Reservation for the Band. (Id.
at 1006.) To fund the development efforts, Smith suggested—“as the easiest way out of the
difficulties in which this reservation is involved”—that the Mille Lacs Reservation’s pine
be sold, “leaving the fee in the Government and the right of occupying in the Indians until
their removal to White Earth.” (Id.) According to Smith, “[t]he Indians would readily
consent to the immediate sale of the pine for the benefit of their Great Father, and when
the reservation is once laid bare of its tempting wealth it will be no longer in demand for
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pretended settlement . . . .” (Id.) As an alternative to removal to White Earth, Smith
suggested giving the Band “in severalty so much of the reservation as they can occupy,”
and using the proceeds from the sale of the reservation’s pine to fund agricultural
development and schools. (Id.)
In 1872, Congress appropriated funds to finance the Mississippi Chippewas’
removal to White Earth. Act of May 29, 1872, 17 Stat. 165, 189 (“That the Secretary of the
Interior be, and he hereby is, authorized to expend, for the removal of the Chippewa Indians
to to [sic] the White Earth Lake reservation, in Minnesota, for their subsistence for six
months after their removal, and for improvements on the said reservation, the unexpended
balance of appropriations heretofore made . . . .”). Approximately twenty-five Mille Lacs
Ojibwe moved to White Earth following this appropriation. (McClurken Rep. at 110.)
After Smith was appointed as the Commissioner of Indian Affairs in 1873, he
reiterated his suggestion that either title to reservation land be returned to the Band, or the
Mille Lacs relocate to White Earth. In his 1873 report, Smith wrote:
The Mille Lac band of Chippewas in Minnesota remains in its anomalous
position. They have sold their reservation, retaining a right to occupy it
during good behavior. With this title to the soil it is not deemed expedient to
attempt permanent improvements at Mille Lac, unless a title to the
reservation can be returned to them on condition that they surrender to
Government [sic] all moneys acquired in consideration of their cession of the
Mille Lac reservation. If this cannot be done, their Indians should be notified
that they belong at White Earth, and be required to remove. In their present
location, on its present tenure, nothing can be done looking toward their
civilization.
(Slonim Decl., Ex. 24, at 12.) In 1875, a Mille Lacs delegation led by Shaboshkung met
with Smith in Washington, D.C. to discuss the state of the Mille Lacs Reservation.
17
Shaboshkung requested assistance in developing the reservation and providing for its
residents. (Id., Ex. 27, at 1.) Smith argued that the Band ought to move to White Earth,
explaining:
The difficulty about your staying at Mille Lac is that you have no ownership
in the land. A white man never puts up a house on land that does not belong
to him. . . . You have sold your ownership in that country, and something
ought to be done, and you ought to go where you can have land that is your
own forever.
(Id. at 2.) Shaboshkung reiterated the Band’s understanding of the promises made by Dole
and Lincoln years before, stating:
While in this room many years ago, we spoke to the Commissioner and he
spoke good words. The President took hold of our hands and promised us
faithfully and encouraged us, and he said we could live on our reservation
for ten years, and if you are faithful to the whites and behave yourselves
friendly to the whites you shall increase the number of years to 100; and you
may increase it to a thousand years if you are good Indians, and through our
good behaviour [sic] at the time of the war, (we were good and never raised
hands against the whites) the Secretary of the Interior and the President said
that we should be considered good Indians and remain at Mill Lac so long as
we want to.
(Id.) Regarding the Treaty of 1863, Shaboshkung stated that “[w]e signed the paper because
we were asked to sign with the other Indians,” but protested that the document did not
reflect their understanding of the agreement: “[W]e do not understand. It is very strange to
us that whenever anything is done before us we think it is allright [sic], but instead after
getting out of the Office, something more was added of which we knew nothing.” (Id., Ex.
28, at 2-3.)
18
Smith responded that the promises made to the Band were not recorded in the
Treaties of 1863 and 1864, and that only the written text considered by Congress mattered.
(Id., Ex. 27, at 3; id., Ex. 28, at 1-2.) According to Smith:
The Mille Lac[s] gave up [their reservation] and took the right in White Earth
where there was to be land broken for them and houses built, but they were
not to be obliged to go so long as they did not interfere with or trouble the
persons or property of white people. Now that is exactly the state of things.
This is the way you lost you[r] right at Mille Lac. You have not lost it so long
as you behave yourself and nobody can find any fault with you. But you see
what the danger is, and it is growing more and more every year.
(Id., Ex. 28, at 2.) That “danger,” according to Smith, was that despite the Band’s good
behavior overall, individual members’ misbehavior rendered the Band “liable . . . at any
time to have a bad name gotten up against you; and then no one knows what will come as
to your staying there.” (Id., Ex. 27, at 3-4.) Smith concluded that unless Congress ordained
to shore up the Band’s title to reservation land, the best course was for the Mille Lacs to
relocate to White Earth. (Id.; id., Ex. 28.) The Mille Lacs left Washington, D.C.
unconvinced, but with promises of aid from Smith. (Id., Ex. 28.)
In 1876, the lumbermen’s scheming to obtain the reservation’s timber continued.
Amherst Wilder and future Senator Dwight Sabin arranged to hire settlers to make a
preemption entry on reservation land and, after receiving a rejection from the local land
office, appeal the decision to Washington. While their attorneys assisted in Washington,
William Folsom, a Minnesota legislator, would push for the Band’s removal. (White Rep.
at 160-63.) Pursuant to the Sabin-Wilder scheme, Folsom’s son made such an entry, which
was rejected by the local land office and the General Land Office on the ground that the
reservation was not open to entry. (Id. at 165-66.)
19
Secretary of the Interior Zachariah Chandler overturned the agencies’ decisions.
Construing the Treaties of 1863 and 1864, Chandler concluded: “All of the conditions of
said treaties having been complied with by the United States, the title to said lands now
rests absolutely in the United States.” (Slonim Decl., Ex. 32, at 2.) Regarding the Article
12 proviso, Chandler reasoned that “[u]nder this proviso it is true that, so long as said
Indians do not interfere with the persons or property of the whites, they cannot be
compelled to remove; but it by no means gives them an exclusive right to the lands, nor
does it, in my judgment, exclude said lands from sale and disposal by the United States.”
(Id. at 3.) Chandler further explained that “[i]t was anticipated evidently that these lands
would be settled upon by white persons, that they would take with them their property and
effects, and it was provided that so long as the Indians did not interfere with such white
persons or their property, they might remain, not because they had any right to the lands,
but simply as a matter of favor.” (Id. at 3-4.) Accordingly, Chandler ordered that the
reservation lands be opened to entry. (Id. at 4.) But, because the Mille Lacs Band still
occupied the land and no appropriation was available to immediately remove them to White
Earth, Chandler suspended execution of his decision until the close of the next session of
Congress. (Id.) The Chandler decision did not purport to reverse the cancellation of
previous entries pursuant to Secretary Delano’s intervention in 1871.
Congress did not act on Chandler’s decision. (White Rep. at 176.) But, before the
Congressional session closed, Carl Schurz succeeded Chandler as the Secretary of the
Interior. (Id.) The day before Congress was to adjourn, and Chandler’s decision would
thereby become effective, Schurz sent a telegram to the Taylor Falls Land Office
20
instructing it not to permit any entries on the Mille Lacs Reservation pursuant to Chandler’s
decision until Schurz issued further guidance. (Id. at 177.) Several days later, Schurz sent
additional orders forbidding further entries until “the result of the action of Congress in
relation to the right of the Indians in question to occupy the tract of country known as the
Mille Lac Reservation . . . shall have been determined.” (Id.) Despite this directive, in
March 1879, the Taylor Falls Land Office permitted 285 entries, covering 24,376.77
acres—more than a third of the Mille Lacs Reservation’s land. (Id. at 177-78.) This land—
obtained using powers of attorney executed by soldiers, most of whom lived outside of
Minnesota—was ultimately transferred to Senator Sabin and Amherst Wilder. (Id. at 180.)
Two months later, Secretary Schurz wrote to the Taylor Falls Land Office cancelling all
285 entries as “having been allowed in contravention of the specific order of the
Department, given with a view to afford opportunity for the adjustment of the rights of the
Indians in the reservation.” (Slonim Decl., Ex. 44, at 14.)
In July 1880, Acting Indian Affairs Commissioner E.J. Brooks responded to a
petition seeking assistance against the lumbermen’s persistent efforts to claim reservation
pine land:
I have to say, that there is no law authorizing the sale or entry of any of the
lands embraced within the Mille Lacs reservation, and in the absence of such
law no such sale or entry can be made.
It will be seen, therefore, that the apprehensions of the Indians, and of the
people as well, regarding the disposition of the lands referred herein, are not
well grounded.
(Id., Ex. 39; see also id., Exs. 36-37 (describing the petition).) Similarly, in a May 1882
report, Indian Affairs Commissioner Hiram Price analyzed the Treaties of 1863 and 1864,
21
and concluded that the Article 12 proviso’s right of occupancy was exclusive: “The Indians
were there, and until they were removed either by their own consent or by reason of the
forfeiture of their right of occupancy the whites manifestly must keep out.” (Id., Ex. 44, at
4.)
Despite Price’s 1882 report, the Department of the Interior again changed course.
Secretary Henry M. Teller restored Chandler’s view of the Article 12 proviso. (Id., at 1012.) Teller reasoned that the proviso “gave to this band of Indians the right to remain on
the reservation until they should voluntarily remove therefrom,” but “[w]hatever title they
had passed by this treaty to the United States, nothing remained in the Indians.” (Id. at 11.)
Teller noted that the parties to the treaty contemplated the band’s voluntary removal to the
reservation first established near Leech Lake, and later relocated to White Earth; but the
Mille Lacs “have refused to do so and still refuse.” (Id.) In Teller’s view, the “interests of
the Indians undoubtedly require their removal” but, under the Article 12 proviso, the United
States could not compel removal absent the “clearest proof” that the Band had violated the
proviso. (Id.) Because such proof did not exist, “it must be presumed that the Indians are
rightfully on the reservation and entitled to the protection of the Government in all that was
given them by the proviso in article 12.” (Id.) Yet Teller concluded that the right of
occupancy did not extend to the entire reservation:
The question is whether they may occupy the whole reservation or only the
part that is necessary to make good the promise of the proviso of section 12.
It is not claimed that they originally occupied the entire reservation, or that
it is now necessary to exclude white settlers therefrom to keep in good faith
the treaty with them. I conclude that whatever they actually occupied in 1863
they are entitled now to occupy; if they have increased the area of their
22
occupation they are entitled to that, if such occupation was prior to the
occupancy by white people.
The reservation was public land open to homestead and pre-emption claims,
subject only to the rights of the Indians to reside thereon and not to remove
therefrom until they wish so to do. Good faith required the Government to
reserve for them as much land as they needed. This could not be more fairly
determined than by conceding to them all they had previously occupied.
(Id.) Teller accordingly directed Commissioner Price to ascertain the amount of land
occupied by the Band, so that the remainder could be occupied by settlers who had, in good
faith, attempted settlement. (Id. at 11-12.) Following this decision, Teller reinstated Sabin
and Wilder’s 1879 entries—but not those canceled in 1871. (Id. at 16.)
In 1884, the House of Representatives requested a report on the Mille Lacs
Reservation. After receiving Price’s 1882 report and Teller’s decision, Congress declared
“[t]hat the lands acquired from the . . . Mille Lac band[] of Chippewa Indians on the White
Earth reservation [sic 3], in Minnesota, by the [Treaty of 1864] shall not be patented or
disposed of in any manner until further legislation by Congress.” Act of July 4, 1884, 23
Stat. 76, 89. The General Land Office again closed the Mille Lacs Reservation to entry.
(See Slonim Decl., Ex. 53, at 541.)
Although the Act of July 4, 1884 referred to the “White Earth reservation,”
Congress clearly intended to address the Mille Lacs Reservation, given that the White Earth
Reservation was in fact established by the Treaty of 1867. (See Slonim Decl., Ex. 53, at
541 (1887 letter from Acting Interior Secretary Henry Muldrow, noting that “[t]he words
‘on the White Earth reservation’ in said act are repugnant to its otherwise clearly expressed
intent and meaning and must yield thereto in construction” and concluding that the Act
barred further entries on the Mille Lacs Reservation).)
3
23
Then, in May 1886, Congress authorized the Secretary of the Interior to “negotiate
with the several tribes and bands of Chippewa Indians in the State of Minnesota for such
modification of existing treaties with said Indians and such change of their reservation as
may be deemed desirable by said Indians and the Secretary of the Interior.” Act of May 15,
1886, 24 Stat. 29, 44. The Secretary appointed the Northwest Indian Commission to
conduct these negotiations. The Commission reached agreements with the Chippewa of the
White Earth, Leech Lake, Cass Lake, Lake Winnebagoshish, and White Oak Point
Reservations, and the Gull Lake and Gull River Bands, providing for the consolidation of
these bands at White Earth, the allotment of land at White Earth, and the sale of their prior
reservations. (Slonim Decl., Ex. 52, at 1.) A second agreement with the Chippewa at the
Red Lake Reservation provided for the sale of some of that reservation’s land, and
authorized the band to take allotments on the remaining land in the future. (Id. at 2.)
The Commission similarly held a council with the Mille Lacs Band, where “[e]very
possible argument was used to influence their minds in favor of the movement [to White
Earth].” (Id. at 17.) The Commission reported: “Their refusal was absolute and
unqualified.” (Id. at 18.) Shaboshkung again repeated the Mille Lacs account of the 1863
negotiations, stating that President Lincoln and Commissioner Dole
said to us, “Sit quiet where you are; the Mille Lacs will only be a little less
splendid than Washington.” Why we were told this was because we had
always been quiet and peaceable. They told us we might stay here a thousand
years if we wished to. For ten years we will sit quiet here. Then for one
hundred years, and for one thousand years, and if there be one Mille Lacs
living, then he will stay quietly by Mille Lacs.
24
(Id. at 30.) Chief Mozomany echoed Shaboshkung’s arguments: “Our young men have
kept their part of the contract—to live in peace with the whites. . . . Is the one thousand
years up that the Great Father has sent you here?” (Id.) Following the Band’s refusal to
remove to White Earth, Secretary of the Interior Lucius Lamar directed the Commission to
try again. (Id.) But the Band persisted in its refusal to remove—except for a dozen
representatives, who agreed on behalf of fifty Band members to remove to White Earth.
(Id. at 19, 33-37.)
In 1888, foreshadowing the passage of the Nelson Act and echoing the Band’s
requests in years past, the Band petitioned Washington to permit the Band to take
allotments at Mille Lacs. (Id., Ex. 54, at 6-9.) The petition recalled the Band’s resistance
against Hole-in-the-Day’s uprising in 1862, and explained the Band’s desire to remain at
Mille Lacs. (Id. at 6-7.) The Band wrote:
[W]e are firm in our determination to remain at Mille Lac, and shall ask our
Great Father to . . . sell the timber that we have no use for at Mille Lacs, or
in some other way assist us to make ourselves more comfortable homes
where we are. . . .
We are told that we ceded our reservation at Mille Lac to the United States
in 1863 and that we now only have the right to occupy it during good
behavior. We never intentionally ceded all our lands at Mille Lac to the
United States; we never intended to go away from our home at Mille Lac but
if our Great Father shall decide that we have ceded them away and that we
still have only the right of possession left and as it will make but little
difference to him where they are, and a great deal of difference to us, we
would respectfully ask you to let us remain at Mille Lac and give to us in
severalty, the lands on this reservation, not disposed of . . . .
(Id. at 7.) One of the County’s experts, Dr. Paul Driben, points to this petition as the first
indication that the Band desired to give up its reservation, having concluded that
25
relinquishing the reservation in exchange for allotments was the only way to prevent
settlers’ and lumbermen’s persistent encroachment. (See Decl. of Paul Driben (“Driben
Decl.”) [Doc. No. 259], at ¶ 5; id., Ex. A (“Driben Rep.”), at 57; Slonim Decl., Ex. 162
(“Driben Dep.”), at 62, 128; but see Decl. of Randolph Valentine [Doc. No. 236], Ex. B
(“Valentine Rebuttal”), at 16-17 (opining that the 1888 petition “implies a desire to retain
their reservation, not to rid themselves of it”).)
E.
The Nelson Act
1.
Legislative History
In March 1888, the U.S. House of Representatives’ Committee on Indian Affairs
issued a report regarding the agreements obtained by the Northwest Indian Commission
and a proposed bill (which later became the Nelson Act). See H.R. Rep. No. 50-789 (1888)
[Doc. No. 229-3]. The report summarized all the “reservations and unceded lands” in
Minnesota that would be affected by the bill, and included the Mille Lacs Reservation in
its summary. Id. at 2. But the Committee also stated that “[t]he Mille Lac Reservation has
long since been ceded by the Indians, in fee, to the United States, with a right reserved to
the Indians to occupy the same as long as they are well behaved.” Id.
The Committee recommended that “[a]ll the Indians on the small outlying and
scattered reservations” be removed to the White Earth Reservation and receive allotments
there. Id. at 6. To carry out this objective, among others, the Committee proposed a bill
providing for the sale of reservation land and the establishment of a “permanent interestbearing fund for all the Chippewa Indians in common,” as well as the concentration of
Minnesota’s Chippewa at White Earth. Id.
26
On the House floor, however, the proposed bill was amended to allow Minnesota’s
Chippewa to take allotments on their existing reservations, rather than at White Earth. 19
Cong. Rec. 1887-88 (1888) [Doc. No. 229-5]. Moreover, when Senator Sabin brought the
bill to the Senate floor, a new provision was added, which barred the sale or disposal of
“any tract upon which there is a subsisting valid preemption or homestead entry” and
permitted such entries to proceed to patent. 19 Cong. Rec. 9129-32 (1888) [Doc. No. 2296]. Although this provision was not in earlier versions of the bill, Senator Sabin apparently
sought to include this language in order to protect his and Wilder’s personal entries on the
Mille Lacs Reservation. (McClurken Rep. at 181-82; White Rep. at 248-49.)
2.
Statutory Provisions
In 1889, Congress approved the Nelson Act. The Nelson Act established a
commission to negotiate with Minnesota’s Chippewa “for the complete cession and
relinquishment in writing of all their title and interest in and to all the reservations of said
Indians in the State of Minnesota, except the White Earth and Red Lake Reservations . . . ,
for the purposes and upon the terms hereinafter stated.” Act of Jan. 14, 1889 (“Nelson
Act”) § 1, 25 Stat. 642. The cession was contingent on the written assent of two-thirds of
the male adults of each band and the President’s approval. Id. Further, the President’s
approval would “be deemed full and ample proof of the assent of the Indians, and shall
operate as a complete extinguishment of the Indian title . . . for the purposes and upon the
terms in this act provided.” Id.
Section 3 of the Act provided that, after the cessions had been obtained, approved,
and ratified, all Minnesota Chippewa, except those on the Red Lake Reservation, would be
27
removed to White Earth and then receive allotments there. Id. § 3. However, in line with
the House’s revisions, the Act permitted the Chippewa to remain on their reservations:
Provided further, That any of the Indians residing on any of said reservations
may, in his discretion, take his allotment in severalty under this act on the
reservation where he lives at the time of the removal herein provided for is
effected, instead of being removed to and taking such allotment on [the]
White Earth Reservation.
Id.
Under Sections 4 and 5, the ceded lands were to be surveyed and categorized as
“pine lands” or “agricultural lands,” and the “pine lands” were to be sold for at least their
appraised values. Id. §§ 4–5. Section 6 provided for the disposal of unallotted “agricultural
lands” under the homestead laws, subject to Senator Sabin’s proviso forbidding the
disposal of land with “subsisting, valid, pre-emption or homestead entr[ies].” Id. § 6. The
Act created an interest-bearing “permanent fund” within the Treasury Department, into
which “all money accruing from the disposal of said lands”—after deducting “all the
expenses of making the census, of obtaining the cession and relinquishment, of making the
removal and allotments, and of completing the surveys and appraisals”—would be
deposited. Id. § 7. Some of the interest accruing on that fund would be distributed to the
Chippewa, and some would be “devoted exclusively to the establishment and maintenance
of a system of free schools among said Indians.” Id. The Act also permitted Congress to
appropriate the fund’s principal “for the purpose of promoting civilization and self-support
among the said Indians.” Id.
28
3.
The Nelson Act Agreement
After the passage of the Nelson Act, President Harrison appointed Senator Henry
Rice, Martin Marty, and Joseph Whiting to the commission described in the Act (the
“Chippewa Commission”). H.R. Exec. Doc. No. 51-247, at 1 (1890) [Doc. Nos. 230 &
230-1]. On October 2, 1889, the Chippewa Commission began negotiations with the Mille
Lacs Band at their reservation. Id. at 163. After Whiting read the Nelson Act to everyone
present, Rice “took charge” of the negotiations. (McClurken Rep. at 155.) Rice turned to
the Treaty of 1863 and confirmed that the Band’s understanding of that treaty was correct:
“the understanding of the chiefs as to the treaty was right. Here is the acknowledgment of
the Government that you were right, that ‘you have not forfeited your right to occupy the
reservation.’” H.R. Exec. Doc. No. 51-247, at 164. Later, Rice explained that the Band’s
“acceptance of this act will not affect these old matters at all, or weaken your chances of
obtaining hereafter your dues, but, on the contrary, leaves you in a stronger position than
before.” Id. at 165. Rice then delivered an “elaborate explanation” of the Nelson Act, and
Mozomany reported that “this understanding is perfect.” Id. at 165–66.
Later in the negotiations, when discussing allotments, Maheengaunce stated that he
understood all that Rice had said and that the Band would take allotments on the Mille Lacs
Reservation: “as you have uttered the words of the law, stating that an Indian can take his
allotment on the reservation where he resides, we make known to you that we wish to take
29
our allotments on this reservation, and not be removed to White Earth.” Id. at 168. 4 Toward
the end of the negotiations, Rice confirmed that if the Band agreed to the Act, they would
receive allotments at Mille Lacs. Id. at 171. In urging Band members to assent to the
agreement, Maheengaunce explained that it was “a settlement of all our past
difficulties. . . . They tell us we are going to stay here forever, and that they are going to
make allotments here to us.” Id. Similarly, Kegewdosay told Rice that “we have heard from
your own mouth, from the Commission . . . that we are going to have our allotments on our
old reservation where we have resided.” Id. at 174.
The Mille Lacs Band then signed the Nelson Act Agreement proffered by the
Commission. Id. That Agreement provided that the Indians “occupying and belonging to
the Mille Lac Reservation under and by virtue of a clause in the twelfth article of the
[Treaty of 1864]” accept and consent to the Nelson Act “and each and all of the provisions
thereof.” Id. at 45. The Band agreed to “grant, cede, relinquish, and convey to the United
States all of our right, title, and interest in and to” lands at White Earth and Red Lake not
required to make the allotments provided for by the Act. Id. at 45–46. And the Band further
agreed to “hereby forever relinquish to the United States the right of occupancy on the
Mille Lac Reservation, reserved to us by the twelfth article of the [Treaty of 1864].” Id. at
46.
Throughout the negotiations, Band members repeatedly referred to the land as their
“reservation.” See generally id. at 166–70.
4
30
One week after the Band signed the Nelson Act Agreement, Rice sent a letter to T.J.
Morgan, the Commissioner of Indian Affairs, advising him that the Band “assented to the
propositions offered them” and “signified their intention to remain where they are, and will
take allotments upon that reservation.” (Slonim Decl., Ex. 64, at 2.) In a December 1889
report to Morgan, the Chippewa Commission stated that the 1863 and 1864 treaties
“confirmed the belief that [the Mille Lacs] were not only permanently located, but had the
sole occupancy of the reservation.” H.R. Exec. Doc. No. 51-247, at 22.
On March 4, 1890, President Harrison approved the Nelson Act Agreement, noting
that the Nelson Act “authorized any Indian to take his allotment upon the reservation where
he now resides,” and observing that the Chippewa Commission reported that “quite a
general desire was expressed by the Indians to avail themselves of this option.” Id. at 1–2. 5
F.
The Mille Lacs Reservation After the Nelson Act
1.
Interior Secretary Noble’s Decisions
After the passage of the Nelson Act, settlers continued to enter the Mille Lacs
Reservation. The first in a trio of decisions from Interior Secretary John Noble accelerated
The Court also notes that, shortly after the President approved the Nelson Act
Agreement, Congress passed two laws apparently acknowledging the continued existence
of the Mille Lacs Reservation. First, the Act of July 22, 1890, provided a right-of-way for
“construction of a railroad through the Mille Lacs Indian Reservation,” and the right to
take 320 acres of land “in said reservation” for railroad purposes “upon paying to the
United States for the use of said Indians such sum” as the Secretary of the Interior may
direct. 26 Stat. 290. Second, a reservoir-damage appropriation was enacted on August 19,
1890, which provided for payment to the “Mississippi band, now residing or entitled to
reside on the White Earth, White Oak Point, and Mille Lac Reservations . . . .” 26 Stat.
336, 357.
5
31
these entries, frustrating attempts to allot Mille Lacs Reservation lands to Band members
for nearly three decades. (McClurken Rep. at 194.) In January 1891, Secretary Noble
concluded that, following the Nelson Act Agreement, homestead entries suspended by the
1884 Act could proceed to patent. Amanda J. Walters, 12 Pub. Lands Dec. 52 (1891) [Doc.
No. 231-3]. In so holding, Noble stated that the Mille Lacs Reservation was not a
“reservation” on which the Indians could take allotments because, in his view, the Band
ceded the reservation in 1863 and Mille Lacs was “the very land referred to and intended
to be covered by” Sabin’s § 6 proviso preserving entries made prior to the Nelson Act. Id.
at 55–56. Noble did not, however, address lands within the Mille Lacs Reservation that
were not subject to preexisting claims under the § 6 proviso. (See McClurken Rep. at 194.)
Then, in September 1891, Secretary Noble decided Northern Pacific Railroad Co.,
a case involving railroads seeking to claim lands on the Mille Lacs Reservation. 13 Pub.
Lands Dec. 230 (1891) [Doc. No. 231-4]. In that case, Noble recognized that the Article
12 proviso’s right of occupancy was “a real and substantial interest or right in the
enjoyment of which the Indians were entitled to protection,” and was therefore an
“appropriation as excepted [the lands] from [the railroad withdrawal] orders.” Id. at 234.
Accordingly, he held that reservation lands that did not have pre-existing claims, and were
therefore not covered by the § 6 proviso, could only be disposed of under the Nelson Act.
Id.
Finally, in April 1892, Noble considered the tension between Northern Pacific
Railroad Co. and a departmental letter providing that reservation lands should be disposed
of under the general land laws. Noble held that Northern Pacific Railroad Co. was
32
controlling, and required that reservation lands be disposed of according to the provisions
of the Nelson Act. Mille Lac Lands, 14 Pub. Lands Dec. 497, 497–98 (1892) [Doc. No.
231-9]. Subsequently, the General Land Office determined that all homestead and
preemption entries made after the Nelson Act’s passage in 1889 “must be disallowed and
cancelled.” See H.R. Rep. No. 52-2321, at 2 (1893). Between the Walters and Mille Lac
Lands decisions, entries were made covering 31,659 of the reservation’s approximately
61,000 acres. H.R. Rep. No. 53-149, at 1 (1893).
2.
1893 Resolution
In the wake of the Mille Lac Lands decision, Congress determined that “prompt
action” was needed to protect the preemption and homestead entries that settlers had made
on the Mille Lacs Reservation as a result of the Walters decision. H.R. Rep. No. 52-2321,
at 1-2. The House and Senate therefore approved a resolution to legitimize the entries that
occurred between the Walters and Mille Lac Lands decisions. (See McClurken Rep. at 20607; White Rep. at 319.) The 1893 Resolution confirmed “all bona fide pre-emption or
homestead filings or entries allowed for lands within the Mille Lac Indian Reservation”
between the dates of the Walters and Mille Lac Lands decisions, and permitted such entries
to proceed to patent. J. Res. 5, 53rd Cong., 28 Stat. 576 (1893).
3.
1898 Resolution
Throughout the 1890s, the U.S. government made repeated attempts to induce Band
members to leave the Mille Lacs Reservation, such as by withholding annuity payments
from those who refused to remove to White Earth. (See McClurken Rep. at 210-13.)
Nevertheless, most remained at the Mille Lacs Reservation, and they continued to seek
33
allotments there. (Id. at 219, 224-25.) They also continued to express their desire to remain
on the Reservation. For example, in an October 1894 letter addressed to “Our Great Father
in Washington,” Band leaders—who wrote as the Great Father’s “Children who reside on
the Mille Lac Reservation”—stated that they “never consented to give up our lands” and
proposed “to [retain] possession of them until a court of competent jurisdiction shall decide
that we have no legal right to [retain] possession of our reservation.” (Slonim Decl., Ex.
96.) Further, in June 1897, the Band requested that federal officials allot “unpatented lands
of the Mille Lacs reservation, amounting to several thousand acres,” to Band members.
(See McClurken Rep. at 223-25.) Throughout this time period, however, settlers continued
to claim reservation lands. (Id. at 216-17.)
In 1897 and 1898, Congress considered whether settlers could make entries and
obtain patents on the reservation’s lands. (See id. at 227-30.) In 1898, Binger Hermann, the
Commissioner of the General Land Office, wrote that the last clause of the Nelson Act
Agreement, which relinquished the Band’s right of occupancy under the Treaty of 1864,
was “not necessary” to extinguish title to the lands—“the words occurring before in the
agreement being sufficient for that purpose.” S. Rep. No. 55-1007, at 3 (1898).
Consequently, Hermann asserted that the Band “elected . . . not to take the allotments on
what was their own particular reservation,” and therefore they could “only properly take”
allotments on the White Earth Reservation. Id. He added that the remaining land at Mille
Lacs “is insufficient in quantity and unfit in quality for the purpose of allotment.” Id.
Thereafter, Congress approved a Joint Resolution providing that “all public lands
formerly within the Mille Lac Indian Reservation . . . are hereby, declared to be subject to
34
entry by any bona fide qualified settler under the public land laws.” J. Res. 40, 55th Cong.,
30 Stat. 745 (1898). The 1898 Resolution further provided that certain preemption filings
and all homestead entries or applications “shall be received and treated in all respects as if
made upon any of the public lands of the United States subject to preemption or homestead
entry.” Id. In a proviso, Congress “perpetually reserved” a few lots “as a burial place for
the Mille Lac Indians, with the right to remove and reinter thereon the bodies of those
buried on other portions of said former reservation.” Id.
4.
1902 Act
Although the Nelson Act offered the Band the right to individual allotments on the
Mille Lacs Reservation, the record indicates that only one Band member successfully
obtained an allotment at Mille Lacs prior to 1925. (White Rep. at 324.) Reflecting their
frustration with their inability to obtain allotments, Band members wrote a letter in March
1900 to the Secretary of the Interior, and stated that the “reservation was given to our band
as a reward for its loyalty to the Government, and its services in suppressing the Indian
uprising in Minnesota in 1862,” but “through the influence of pine syndicates it was opened
to settlement in violation to [sic] treaty stipulations.” (Slonim Decl., Ex. 126, at 3.) The
Band explained its view of the Nelson Act and Agreement: “In 1889, an act was passed by
Congress under which we ceded our rights to the reservation to occupy it as a band, but
reserved the right to take allotments in severalty thereon.” (Id.) But “[b]efore we had
allotments given to us our reservation was again opened to settlement, and not only the
vacant lands were entered but those upon which our houses were built and our gardens
located. Since then we have been driven out of our houses by the settlers who claim the
35
lands upon which they are located.” (Id.) Despite the deprivation of their lands and the
Government’s failure to grant allotments pursuant to the Nelson Act, the Band reported
that its “young men have stubbornly refused to leave the reservation and insist upon the
fulfillment of the agreement of 1889, in relation to allotting lands to them at Mille Lac.”
(Id. at 3-4.)
In early 1900, the Senate Committee on Indian Affairs considered a bill to
compensate Band members for improvements to the Mille Lacs Reservation and permit
them to take allotments at White Earth. (Slonim Decl., Ex. 127, at 2.) Indian Affairs
Commissioner William Jones, who supported the bill, wrote that the Band “relinquished
their right of occupancy on said reservation under” the Nelson Act, but that the white settler
entries permitted prior to the Nelson Act and pursuant to the 1898 Resolution “had the
effect of practically exhausting every acre of land on the reservation available for allotment
to the Indians.” (Id.) Consequently, “the Indians must . . . of necessity either remove from
the reservation or secure no lands.” (Id.) But a minority of the committee emphasized that
“[o]ut of the tangle of verbiage of which treaties, laws, and rulings are composed[,] the
Indians of the Mille Lac Reservation are able only to realize that somewhere in their
dealings with the white race bad faith has been extended to them.” (Id. at 5-6.)
Consequently, the minority suggested instead that the Government purchase reservation
lands occupied by settlers, and allot those lands to Band members. (Id.)
Although the bill did not pass, it was reintroduced in 1902, with an increased
appropriation and a proviso permitting Band members who acquired lands within the
reservation to remain at Mille Lacs. The House Committee Report regarding the
36
reintroduced bill echoed the previous Senate minority’s view that the Band had been treated
poorly, but supported the bill so that the Band, “from whom the land has been taken,
perhaps with their consent but without their knowledge, may receive satisfactory
compensation, in order that they may the more willingly vacate the reservation which has
been taken from them by various treaties.” (Id., Ex. 135, at 7.) The Committee offered its
support despite its conclusion that the appropriation for the bill, split among the 1,200 Band
members then residing on the reservation, amounted to “a sum of slight consequence.” (Id.)
As enacted, the Act provided:
For payment to the Indians occupying the Mille Lac Indian
Reservation . . . the sum of forty thousand dollars, or so much thereof as may
be necessary, to pay said Indians for improvements made by them, or any of
them, upon lands occupied by them on said Mille Lac Indian
Reservation . . . upon condition of said Indians removing from said Mille Lac
Reservation: Provided, That any Indian who has leased or purchased any
Government subdivision of land within said Mille Lac Reservation . . . shall
not be required to move from said reservation . . . . And provided further,
That this appropriation shall be paid only after said Indians shall, by proper
council proceedings, have accepted the provisions hereof . . . and said
Indians upon removing from said Mille Lac Reservation shall be permitted
to take up their residence and obtain allotments in severalty either on the
White Earth Reservation or on any of the ceded Indian reservations in the
State of Minnesota on which allotments are made to Indians.
Act of May 27, 1902, 32 Stat. 245, 268.
Indian Inspector James McLaughlin and Indian Agent Simon Michelet met with
Band members in August 1902 to procure their assent to the 1902 Act. McLaughlin asked
the Band members whether they were “willing to accept a fair appraisement for
improvements that you have made upon certain locations here, and remove from the former
Mille Lac Reservation.” (Slonim Decl., Ex. 134, at 32.) He told them to “[b]ear in mind
37
that you have lost all rights to lands here, you have no rights to lands here now, and you
can acquire none here, but you can acquire rights elsewhere under the present legislation.”
(Id.) Chief Wahweyaycumig contested McLaughlin’s portrayal of the Band’s rights. He
explained that when Senator Rice came to negotiate the Nelson Act Agreement, “[h]e
pointed to the different directions defining our reservation and said that it would come to
pass that this land would be allotted to us, and if there is not sufficient land on this
reservation to allot us there was plenty of vacant Government land upon which we might
locate.” (Id. at 56.) The Chief argued that Senator Rice explained that the agreement would
provide for payment to the Band for its pine, and promised “that we would commence to
notice the movement of the whitemen [sic] from our territory immediately upon the
acceptance of the treaty.” (Id. at 57.) To McLaughlin’s characterization of the Nelson Act,
Chief Wahweyaycumig responded: “I have not realized any of the promises that were made
to me, neither do I recognize this act that you have read to me today as the one that was
presented and ratified at the time Mr. Rice was here to treat with us.” 6 (Id.) McLaughlin
and Michelet assured the Band that the 1902 Act contemplated only their removal from the
reservation and the payment for their improvements to it; it would not result in the
forfeiture of the Band’s “back claims,” and they would lose “no rights by moving.” (Id. at
67-71.)
See also id. at 72 (stating “I am pretty well along in age now and I have never
heard my people at any time consent to the cession of this territory we claim as our own”).
6
38
Ultimately, the Band consented to the 1902 Act. Ayndosogeshig explained: “These
men that you see here before you wish to have the money that you speak of, as being
appropriated to pay for the damages of these Indians for their improvements, to be placed
in their hands while they remain here.” (Id. at 73.) Ayndosogeshig apparently believed that
the payments were to compensate them for property damage caused by settlers’ efforts to
displace Band members. (Id.) Notably, Ayndosogeshig also expressed the Band’s desire to
remain on the reservation: “I wish to purchase five different tracts of land upon which the
Indians made settlements. The understanding that we had, when we were in Washington,
was, that if any of the Indians wished to take an allotment on any of the other reservations
and return to live upon this land there was not to be any objection to it.” (Id.) Agent
Michelet explained that the band, or individual members, could choose to purchase land
on the reservation if they became dissatisfied with White Earth, but the payments afforded
by the Act were conditioned on their initial removal. (Id. at 77-78.)
The 1902 Agreement proffered by McLaughlin and Michelet and signed by the
Band provided:
NOW THEREFORE, IN CONSIDERATION of the covenants and
agreements of the party of the first part [the United States] herein contained,
the said Mille Lac Indians occupying the former Mille Lac Indian
Reservation, parties of the second part, hereby accept the appraisement made
by James McLaughlin, U.S. Indian Inspector, and Simon Michelet, U.S.
Indian Agent, of even date herewith, aggregating Forty thousand dollars,
($40,000), as full compensation for improvements made by them, or any of
them, upon lands occupied by them, on said Mille Lac Reservation, and also
accept the terms and conditions of said Act of Congress and agree to remove
from said Mille Lac Indian Reservation, (except the excepted classes
provided for in said Act of Congress), upon payment to them of the said
appraised sum of Forty thousand dollars ($40,000), . . . as soon thereafter as
notified by the proper authorities that the necessary arrangements have been
39
made for them upon the White Earth Reservation or any of the ceded Indian
Reservations in the state of Minnesota on which allotments are made to
Indians . . . .
It is understood that nothing in this agreement shall be construed to deprive
the said Mille Lacs Indians of any benefits to which they may be entitled
under existing treaties or agreements not inconsistent with the provisions of
this agreement, or the [Act of 1902].
(Carter Decl., Ex. 61, at 25.)
5.
Continuing Presence at Mille Lacs
After assenting to the 1902 Act, many Band members left the Mille Lacs
Reservation. However, many Band members remained, and some that initially left later
returned. The parties do not dispute that at least two or three hundred Band members always
remained at Mille Lacs. (See McClurken Decl., Ex. C (“McClurken Rebuttal”), at 5-6.) But
due to inaccurate counting and apparent fraud by White Earth lumbermen, the number of
Mille Lacs Band members who actually removed to White Earth is unclear. (See
McClurken Rebuttal at 6-12.) Federal investigations in the 1910s found that fewer than 51
Mille Lacs Ojibwe lived at White Earth. (Id. at 13.) Further, by 1910, only 120 allotments
had been issued to Band members living at White Earth. (Id. at 12.) And by 1912, all land
available for allotment at White Earth had been allotted, and federal officials ceased efforts
to remove the Mille Lacs Ojibwe to White Earth. (Id. at 13.)
In 1914, 1923, and under the Indian Reorganization Act of 1934, Congress
purchased and allotted lands on the Mille Lacs Reservation for Band members. 7 By 2010,
Act of Aug. 1, 1914, 38 Stat. 582, 590–91; Act of Jan. 24, 1923, 42 Stat. 1174,
1191; see Slonim Decl., Ex. 160.
7
40
1,598 of the 4,907 persons living on the reservation identified as Indian. Mem. from
Solicitor to Sec’y of the Dep’t of the Interior (“2015 Interior M-Opinion”), M-37032, at 20
(Nov. 20, 2015) [Doc. No. 150-4]. Today, the United States owns approximately 3,600 of
the reservation’s 61,000 acres in trust for the Band, and the Band and its members own
another 6,100 acres in fee, comprising about 16% of the Mille Lacs Reservation. (Decl. of
Bridgett Quist (“Quist Decl.”), at ¶¶ 3-6.) The Band’s government center is located on the
reservation, and the Band operates schools, clinics, community centers, utility
infrastructure, and a gaming complex on its trust and fee lands within the reservation. (Id.
¶¶ 7-10.)
6.
Prior Litigation Concerning the Reservation
In 1909, Congress conferred jurisdiction on the U.S. Court of Claims “to hear and
determine a suit or suits to be brought by and on behalf of the Mille Lac band of Chippewa
Indians in the State of Minnesota against the United States on account of losses sustained
by them or the Chippewas of Minnesota by reason of the opening of the Mille Lac
Reservation in the State of Minnesota . . . to public settlement under the general land laws
of the United States.” Act of Feb. 15, 1909, 35 Stat. 619. In 1911, the Band brought such
a suit against the United States. The Band alleged that the Mille Lacs Reservation survived
the Treaties of 1863 and 1864, and that when the Band assented to the Nelson Act, the
United States—rather than allotting reservation land to Band members—instead opened
the reservation to entry under the general land laws. (Second Slonim Decl. [Doc. No. 254],
Ex. 4 (“1911 Compl.”), at 5-8.) The Band argued that by opening the reservation to
settlement, without paying the Band the value of the land sold as required by the Nelson
41
Act, the United States deprived the Band, “without their consent and against their will,” of
“all pine lands in the said Mille Lac Reservation, and all of the land comprising such Mille
Lac Reservation, and all of their right, title and interest in and to such reservation.” (Carter
Decl., Ex. 65 (“1911 Brief”), at 505.) For the uncompensated sale of reservation land, the
Band sought three million dollars in damages. (Id. at 427.) The United States argued that
the reservation had been ceded under the Treaty of 1864, and therefore the reservation did
not fall within the scope of the Nelson Act. (Id., Ex. 66, at 101 (“As the former Mille Lac
Reservation was not ceded under the act of 1889, it could not be surveyed, divided up, or
classified as pine or agricultural lands, and it was therefore not intended to come within the
provisions of the act.”).)
The Court of Claims, interpreting the Article 12 proviso, found that the Treaties of
1863 and 1864 did not grant the Band “a mere license or favor,” but instead “reserved to
the [Band] the Mille Lac Reservation.” Mille Lac Band of Chippewas v. United States, 47
Ct. Cl. 415, 438, 457 (1912), rev’d on other grounds sub nom. United States v. Mille Lac
Band of Chippewa Indians, 229 U.S. 498 (1913). The Mille Lacs Band
remained as a band in open, notorious possession of the same, a lawful notice
to the world of a claim of title, until the resolutions of the Congress opened
their domain to public settlement and divested them of title to their lands.
They fulfilled all the conditions of the tenure, remained at peace with the
whites, and were fully entitled to the benefits of the act of January 14, 1889,
which were denied them.
Id. at 458. The court did not address, nor did the parties raise, the issue of whether the
Nelson Act or subsequent legislation disestablished the reservation. Instead, having found
that the United States sold reservation land in derogation of the Nelson Act’s promises, the
42
court awarded damages to the Band—payable to the Chippewa fund established by the
Nelson Act, rather than to the Band itself—representing the value of the land sold in
violation of the Nelson Act. Id. at 461–62.
The United States appealed to the Supreme Court. Recognizing that “there was a
real controversy between the Mille Lacs and the government in respect of the rights of the
former under article 12 of the treaty of 1864,” the Court reasoned that “this controversy
was intended to be and was . . . adjusted and composed” by the Nelson Act. United States
v. Mille Lac Band of Chippewa Indians, 229 U.S. 498, 506 (1913). The Court read the
Nelson Act as presenting a compromise between the Mille Lacs Band and the Government:
“while the government . . . waived its earlier position respecting the status of the
reservation, and consented to recognize the contention of the Indians, this was done upon
the express condition, stated in the proviso to § 6, ‘that nothing in this act shall be held to
authorize the sale or other disposal under its provision of any tract upon which there is a
subsisting, valid pre-emption or homestead entry, but any such entry shall be proceeded
with under the regulations and decisions in force at the time of its allowance, and if found
regular and valid, patents shall issue thereon.’” Id. at 507. Because that compromise
legitimized valid entries made prior to the Nelson Act, the Court held that the Court of
Claims erred in including such land in its calculation of damages. Id. But the United States’
disposal of “the lands not within the proviso . . . not for the benefit of the Indians, but in
disregard of their rights,” was “clearly in violation of the trust” created by the Nelson Act.
Id. at 509. The Court reached its conclusion notwithstanding Congress’s 1893 and 1898
Resolutions approving the disposal of land under the general land laws:
43
That the wrongful disposal was in obedience to directions given in two
resolutions of Congress does not make it any the less a violation of the trust.
The resolutions . . . were not adopted in the exercise of the administrative
power of Congress over the property and affairs of dependent Indian wards,
but were intended to assert, and did assert, an unqualified power of disposal
over the lands as the absolute property of the government. Doubtless this was
because there was a misapprehension of the true relation of the government
to the lands, but that does not alter the result.
Id. at 509–10. On remand, the Court of Claims adjusted its damages award to exclude lands
subject to the Nelson Act’s § 6 proviso, limiting the award to lands disposed of after the
Nelson Act’s passage. Mille Lac Band of Chippewa Indians in State of Minn. v. United
States, 51 Ct. Cl. 400 (1916).
The Supreme Court referenced its 1913 Mille Lac Band decision in United States v.
Minnesota, 270 U.S. 181 (1926). In Minnesota, the United States brought suit to recover
swamplands patented to Minnesota, including about 700 acres of swampland on the Mille
Lacs Reservation patented in 1871. Id. at 198–99. The United States argued that Indian
lands were not disposable under the Swamp Lands Acts, and sought to either cancel patents
granted on reservation swampland or recover the value of such land. Id. at 192–93. The
Court reiterated its conclusion in Mille Lac Band that the Nelson Act “adjusted and
composed” the controversy over the Band’s interest in reservation lands under the Article
12 proviso. Id. at 198. Consistent with its holding in Mille Lac Band that the Nelson Act’s
compromise validated legitimate entries prior to 1889, the Court held that the United States
could not recover the Mille Lacs swamplands patented in 1871. Id. at 199 (“[T]he United
States is without right to any recovery here in respect of the lands as to which it was
adjudged [in Mille Lac Band] to be free from any obligation or responsibility to the
44
Indians.”). The Court did not examine whether the Treaties of 1863 and 1864 or the Nelson
Act disestablished the reservation.
In 1946, Congress created the Indian Claims Commission (“ICC”) to hear claims
against the United States by Indian tribes, including claims for equitable revisions of
treaties and claims “based upon fair and honorable dealings that are not recognized by any
existing rule of law or equity.” Indian Claims Commission Act (“ICCA”) § 2, 60 Stat. 1049
(Aug. 18, 1946). Congress waived defenses based on laches and statutes of limitations, and
provided that any accrued claims not brought within five years would be barred. Id. But
the Act provided that “[n]o claim accruing after the date of the approval of this Act shall
be considered by the Commission,” and that any claim existing before the statute’s
enactment yet not presented within five years could not “thereafter be submitted to any
court or administrative agency for consideration, nor will such claim thereafter be
entertained by Congress.” Id. §§ 2, 12.
The Minnesota Chippewa Tribe and its constituent bands, including the Mille Lacs,
filed several claims under the Act. See Minn. Chippewa Tribe v. United States, 11 Cl. Ct.
221, 232–33 (1986); Minn. Chippewa Tribe v. United States, 230 Ct. Cl. 761 (1982); Minn.
Chippewa Tribe v. United States, 15 Ind. Cl. Comm. 466 (1965) [Doc. No. 242-15, at 58];
Minn. Chippewa Tribe v. United States, 14 Ind. Cl. Comm. 226 (1964) [Doc. No. 242-15,
at 19]. Relying on the unique causes of action created by the ICCA, the Band sought
damages for the disposal of its land both before and after the Nelson Act. 8 The Court of
See, e.g., Minn. Chippewa Tribe, 11 Ct. Cl. at 234–35 (“Based on the treaties of
1863 and 1864, plaintiffs contend that the Mille Lac band was promised a reservation in
8
45
Claims—to which the Band’s claims were transferred after the ICC concluded its
operations—reasoned that the Band remained in possession of its 1855 reservation prior to
the Nelson Act:
[B]y treaties made in 1855, 1863, and 1864, reservations were set aside for
the Mille Lac band in return for cessions of land. In article XII of both the
1863 and 1864 treaties, the band was promised the right to remain in
possession of its reservation “so long as they shall not in any way interfere
with or in any manner molest the persons or property of the whites.” It is
undisputed that the band never violated that condition.
Id. at 236. The court noted the Supreme Court’s 1913 opinion in Mille Lac Band, which
denied the Band compensation for the 29,335.5 acres entered prior to the Nelson Act on
the basis of the Act’s § 6 proviso. Id. But under the unique causes of action created by the
ICCA, the Court of Claims granted summary judgment in favor of the Band with respect
to the pre-Nelson Act entries. Id. at 237. The court reasoned that, “as the Court of Claims
and the Supreme Court found, the purpose of the 1863 and 1864 treaties was to assure that
the band could keep its reservation because of its ‘good conduct.’” Id. at 239. Although the
Band “never broke its promise not to interfere with the white people or their property,” due
to the United States’ subsequent disposal of the reservation’s land, “the United States
received the proceeds from [the] sale of these lands under the land laws, [while] the band
received no compensation at all for nearly half of its reservation . . . and the timber growing
return for their good conduct, but that through a series of conveyances confirmed as a result
of the Nelson Act, that reservation was taken from them. Under clauses 3 and 5 of 25
U.S.C. § 70a . . . they seek, for the band, the fair market value of the land which the
Supreme Court in 1913 held had not been ceded under the Nelson Act, and for the tribe,
the fair market value of the acreage which was then ceded.”).
46
on it.” Id. at 239. The court therefore found that the United States’ disposal of lands entered
prior to the Nelson Act violated the standard of fair and honorable dealings and equated to
unconscionable consideration, satisfying the elements of two of the ICCA’s causes of
action. 9 Id. at 240.
But the court declined to grant summary judgment on the plaintiffs’ claim for the
fair market value of the nearly 32,000 acres disposed of under the Nelson Act, for which
the Supreme Court had ordered payment in Mille Lac Band. The court reasoned:
Plaintiffs’ claim seems to be that once having promised (in article 12 of the
treaties of 1863 and 1864) that the Mille Lac band “shall not be compelled
to remove” during the course of their good conduct, it was unfair to present
the Nelson Act to them for assent. . . . [I]n contrast to the situation as to the
land which was not subject to the Nelson Act, there is no question that band
members were aware that they were ceding some of the land previously
promised to them in return for the benefits of the act. As the Supreme Court
held, those benefits were considerable, in that they thereby secured a share
in the proceeds of the sale of all other Chippewa land, to which they
otherwise had no claim.
In short, the court cannot find solely on the basis of the earlier promises made
to the band, that it was per se dishonorable for the government to offer them
a treaty on different terms. They knew that they would be ceding parts of
their reservation by assenting to the Nelson Act and they received
compensation for their assent.
Id. at 240–41 (citations and footnotes omitted). Like the Court of Claims and Supreme
Court in the Mille Lac Band proceedings, the court did not address whether the Nelson Act
or subsequent legislation disestablished the reservation.
Unlike the damages awarded in Mille Lac Band, which were made part of the
Chippewa trust established by the Nelson Act, the court reasoned that the ICCA claim
“belongs to the band alone since it was then the sole possessor of the Indian Title to the
reservation.” Id. at 240.
9
47
Ultimately, in 1999 the court granted the parties’ Joint Motion and Stipulation for
Entry of Final Judgment. (See Decl. of James M. Schoessler [Doc. No. 256-1].) The
stipulation “dispose[d] of all claims, rights, and demands under Section 2 of the
ICCA . . . which plaintiff has asserted or could have asserted.” (Id., Ex. A, at ¶ 2.) The
Band withdrew “[a]ll claims, rights, and demands under Section 2 of the
ICCA . . . regarding those lands in the Mille Lacs Reservation that were disposed of by the
United States prior to [the Nelson Act]” with prejudice. (Id. ¶ 8.) The parties “specifically
agree[d] that the plaintiff is receiving no compensation for any such claim under the final
judgment entered pursuant to this Stipulation, and no such Claim is being adjudicated by
such judgment.” (Id.) But the parties also agreed that “[n]othing in this Stipulation shall be
construed to limit, foreclose, or otherwise adversely affect . . . any tribal treaty right, on
any lands or waters within any of the reservations of plaintiff’s six constituent bands.” (Id.
¶ 11.)
II.
DISCUSSION
A.
Standard of Review
Summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it may affect the outcome of the lawsuit.” TCF
Nat’l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016). A factual dispute
is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
evaluating a motion for summary judgment, the Court must view the evidence and any
48
reasonable inferences drawn from the evidence in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
Although the moving party bears the burden of establishing the lack of a genuine
issue of fact, the party opposing summary judgment may not “rest on mere allegations or
denials but must demonstrate on the record the existence of specific facts which create a
genuine issue for trial.” Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)
(internal quotation marks omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Moreover, summary judgment is properly entered “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477
U.S. at 322. Where, as here, the record is largely undisputed and “the unresolved issues are
primarily legal rather than factual, summary judgment is particularly appropriate.” Aucutt
v. Six Flags Over Mid-Am., Inc., 85 F.3d 1311, 1315 (8th Cir. 1996) (citing Crain v. Board
of Police Comm’rs, 920 F.2d 1402, 1405–06 (8th Cir. 1990)).
B.
Affirmative Defenses
Before turning to the merits of the parties’ cross-motions, the Court must resolve
several affirmative defenses raised by the County. Namely, the County asserts that the
Band’s claims are barred by claim and issue preclusion, judicial estoppel, laches, and the
Indian Claims Commission Act. For the reasons that follow, the Court finds that these
doctrines do not bar the claims brought in this litigation.
49
1.
Claim Preclusion
The Court first considers the County’s argument that claim preclusion bars this
action. Where a party brings successive lawsuits, claim preclusion operates as a bar to
claims asserted in the later-filed suit when: “(1) the first suit resulted in a final judgment
on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involve the
same parties (or those in privity with them); and (4) both suits are based upon the same
claims or causes of action.” Elbert v. Carter, 903 F.3d 779, 782 (8th Cir. 2018) (quoting
Costner v. URS Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998)). In general, “claim
preclusion does not apply to claims that did not arise until after the first suit was filed.”
United States v. Bala, 948 F.3d 948, 951 (8th Cir. 2020) (emphasis in original) (quoting
Baker Grp. v. Burlington N. & Santa Fe Ry., 228 F.3d 883, 886 (8th Cir. 2000)). However,
a subsequent claim may be barred where it “arises out of the same nucleus of operative
facts as the prior claim.” Id. (quoting Lane v. Peterson, 899 F.2d 737, 742 (8th Cir. 1990)).
According to the County, claim preclusion applies in this case because the Band
already litigated its “claim of reservation cession” in the Mille Lac Band proceedings in
1912 and 1913, in Minnesota in 1926, and in the Minnesota Chippewa Tribe proceedings
under the ICCA. (Mem. in Supp. of Defs.’ Mot. for Summ. J. [Doc. No. 241], at 75-83.) In
response, the Band argues that claim preclusion does not apply because (1) the claims in
this case are different from any of those brought in prior cases, and (2) this case does not
involve the same parties as the prior cases. (Mem. in Opp’n to Defs.’ Mot. for Summ. J.
[Doc. No. 253], at 73-76.)
50
The Court agrees with the Band. In this case, the Band asserts claims for declaratory
and injunctive relief concerning the scope of its inherent and federally delegated law
enforcement authority. (See Compl. at 7.) These claims arise from the County’s alleged
interference with that authority beginning in 2016. (See id.) As the County concedes, “the
Band has never before brought a claim seeking a declaration of its investigatory and
jurisdictional authority over the 1855 Treaty area.” (Mem. in Supp. of Defs.’ Mot. for
Summ. J. at 75.) The County asserts that claim preclusion nonetheless applies because the
Band and the Minnesota Chippewa Tribe “have previously litigated the claim of
reservation cession.” (Id.) But that argument conflates claim preclusion with the closely
related doctrine of issue preclusion. Whether or not the disestablishment issue may have
been previously litigated does not mean that the Band’s law enforcement authority claims
are precluded. None of the Band’s prior litigation involved such claims. See generally
supra Section I.F.6. The Mille Lac Band proceedings in 1912 and 1913 involved the Band’s
claims for compensation based on the Government’s opening of the reservation to
settlement in derogation of the Nelson Act. In Minnesota, the United States sought to
cancel patents granted to Minnesota on reservation swampland or to recover the value of
such land. And the Minnesota Chippewa Tribe cases involved the unique claims created
by the ICCA.
Moreover, the Band could not have brought its present claims before the County
allegedly interfered with the Band’s law enforcement authority in 2016. Claim preclusion
generally does not apply to claims that did not arise until after the first suit was filed, unless
the subsequent claim “arises out of the same nucleus of operative facts as the prior claim.”
51
Bala, 948 F.3d at 951 (quotation omitted). To be sure, the Band’s claims concerning its
law enforcement authority raise the issue of whether its reservation was disestablished, and
the core facts driving the disestablishment inquiry today are largely identical to the facts
considered by the Court of Claims, Supreme Court, and the ICC decades ago. But the
claims asserted here arise out of the County’s alleged interference with the Band’s law
enforcement activities in 2016—a markedly different “nucleus of operative facts.” Because
the prior cases were not “based upon the same claims or causes of action” as this case,
claim preclusion does not apply. Elbert, 903 F.3d at 782.
Finally, claim preclusion is inapplicable here for another reason: this case does not
involve the same parties as the prior cases. The County urges the Court to apply the
exception to claim preclusion’s mutuality requirement recognized in Nevada v. United
States, 463 U.S. 110 (1983). There, the United States sued to adjudicate certain water rights
that were resolved in a prior action. Id. at 116–21. The prior action was an equitable action
to quiet title, and all parties involved in that action “contemplated a comprehensive
adjudication of water rights intended to settle once and for all” how the rights associated
with a certain river should be divided among the litigants. Id. at 143. The Court explained
that “even though quiet title actions are in personam actions, water adjudications are more
in the nature of in rem proceedings,” and nonparties “have relied just as much on” the
decree in the prior action “as have the parties of that case.” Id. at 143–44. Therefore, the
Court concluded that “under these circumstances it would be manifestly unjust . . . not to
permit subsequent appropriators to hold” one of the litigants to the claims it made in the
52
prior action, and that any “other conclusion would make it impossible ever finally to
quantify a reserved water right.” Id. at 144 (quotation omitted).
The Court declines to extend Nevada’s “narrow exception to the mutuality rule” to
the Band’s claims in this case. Mille Lacs Band of Chippewa Indians v. Minnesota, 124
F.3d 904, 932 (8th Cir. 1997), aff’d, 526 U.S. 172 (1999). As the Eighth Circuit has
explained, “[t]he proceedings in Nevada were unique; they involved [a] comprehensive
water rights adjudication, in which many non-party water appropriators had relied on a
prior decree as much as the parties to the action, making res judicata appropriate because
of the special need to finally quantify reserved water rights.” Id. at 932–33. Those concerns
are not present in this case, and the Court sees no need to extend Nevada’s “narrow
exception.”
Accordingly, the Court finds that claim preclusion does not bar the Band’s claims.
2.
Issue Preclusion
Next, the County argues that the Band is precluded from arguing that its reservation
has never been disestablished. Issue preclusion bars a party from relitigating an issue where
the following elements are satisfied:
(1) the party sought to be precluded in the second suit must have been a party,
or in privity with a party, to the original lawsuit; (2) the issue sought to be
precluded must be the same as the issue involved in the prior action; (3) the
issue sought to be precluded must have been actually litigated in the prior
action; (4) the issue sought to be precluded must have been determined by a
valid and final judgment; and (5) the determination in the prior action must
have been essential to the prior judgment.
Sandy Lake Band of Miss. Chippewa v. United States, 714 F.3d 1098, 1102–03 (8th Cir.
2013) (quotation omitted).
53
The County points to the Court of Claims’ 1912 and 1986 decisions, the Supreme
Court’s 1913 and 1926 decisions, and the ICC’s 1964 and 1982 decisions. The County
asserts that “[w]hether the lands encompassed by the 1855 Treaty and the Nelson Act
remained Indian country, or were ceded to the United States through the 1863, 1864, and
1867 Treaties and the Nelson Act, were essential to the courts’ determinations in the earlier
litigation. It was at the core of their analyses of the disposition of lands and the
compensation to which the Band was entitled.” (Mem. in Supp. of Def.’s Mot. for Summ.
J. at 96-97.)
The County is partially correct: the issue of whether the reservation survived the
Treaties of 1863 and 1864 was previously litigated and decided. But that issue was resolved
in the Band’s favor. In 1913, the Court of Claims held that the Article 12 proviso “reserved
to the [Band] the Mille Lac Reservation.” Mille Lac Band of Chippewas v. United States,
47 Ct. Cl. 415, 438, 457 (1912), rev’d on other grounds sub nom. United States v. Mille
Lac Band of Chippewa Indians, 229 U.S. 498 (1913). Consequently, the court concluded
that by disposing of reservation land under the general land laws rather than the Nelson
Act, the United States violated the Nelson Act. Id. at 461–62. The Supreme Court did not
reach the merits of the controversy surrounding the Article 12 proviso, holding instead that
it was “adjusted and composed” in the Nelson Act, whereby “the government . . . waived
its earlier position respecting the status of the reservation, and consented to recognize the
contention of the Indians,” on the condition that otherwise valid entries prior to the Nelson
Act would be carried to patent pursuant to the Act’s § 6 proviso. 229 U.S. at 507. Similarly,
the Court of Claims in 1986 found that “the purpose of the 1863 and 1864 treaties was to
54
assure that the band could keep its reservation because of its ‘good conduct.’” Minn.
Chippewa Tribe v. United States, 11 Cl. Ct. 221, 239 (1986). 10
But none of the courts considered whether the Nelson Act disestablished the Mille
Lacs Reservation. Each court considered whether the United States violated the Nelson Act
by its subsequent disposition of reservation lands. See, e.g., Mille Lac Band of Chippewa
Indians, 229 U.S. at 509 (holding that the sale of “lands not within the [Nelson Act’s § 6]
proviso . . . not for the benefit of the Indians, but in disregard of their rights,” was “clearly
in violation of the trust” created by the Nelson Act). The Band’s damages claims for the
wrongful disposition of its land did not require the courts to reach, nor did they reach, the
question of whether the Nelson Act or subsequent legislation altered the reservation’s
boundaries.
Because the disestablishment question, insofar as it concerns the pre-Nelson Act
treaties, was resolved in the Band’s favor; and because the disestablishment question,
insofar as it concerns the Nelson Act, was neither determined, litigated, nor essential to the
judgments in the Band’s prior litigation, the Court finds that the Band is not precluded from
litigating the disestablishment issue in this case.
The County also cites decisions from the ICC as holding that the Band had
“ceded” its reservation under the Treaties of 1863 and 1864. But “cession” and
“disestablishment” are not necessarily equivalent terms. See infra Sections II.C.2, 4. A
close review of the ICC’s decisions confirms that the Commission did not opine on
Congress’s intent to disestablish the reservation through the Treaties of 1863 or 1864. See
Minn. Chippewa Tribe v. United States, 14 Ind. Cl. Comm. 226 (1964); Minn. Chippewa
Tribe v. United States, 15 Ind. Cl. Comm. 466 (1965). And, to the contrary, when the
Band’s ICC claims were transferred to the Court of Claims, that court found that the treaties
preserved the reservation. Minn. Chippewa Tribe v. United States, 11 Cl. Ct. at 239 (1986).
10
55
3.
Judicial Estoppel
The County also insists that the Band is estopped from asserting that the Mille Lacs
Reservation has never been disestablished. “The doctrine of judicial estoppel prevents a
party who assumes a certain position in a legal proceeding, and succeeds in maintaining
that position, from later assuming a contrary position.” Scudder v. Dolgencorp, LLC, 900
F.3d 1000, 1006 (8th Cir. 2018) (quoting New Hampshire v. Maine, 532 U.S. 742, 749
(2001)) (cleaned up). In determining whether judicial estoppel applies, courts consider
three factors: “(1) whether a party’s later position is clearly inconsistent with its earlier
position, (2) whether the party has succeeded in persuading a court to accept that party’s
earlier position, so that judicial acceptance of an inconsistent position in a later proceeding
would create the perception that either the first or the second court was misled, and (3)
whether the party seeking to assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing party if not estopped.” Id.
(quoting New Hampshire, 532 U.S. at 750–51) (cleaned up). At bottom, judicial estoppel
is a discretionary equitable doctrine intended to prevent abuses of the judicial process by
“prohibiting parties from deliberately changing positions according to the exigencies of the
moment.” New Hampshire, 532 U.S. at 749–50 (quotation omitted).
In support of this defense, as with the County’s preclusion defenses, the County
points to the Band’s litigation before the Court of Claims and the ICC. The County asserts
that, throughout the Band’s litigation history, the Band claimed its reservation had been
disestablished; that the Band prevailed on its position, and received compensation for the
56
disestablishment of its reservation; and that the Band should therefore be estopped from
asserting before this Court that the reservation was never disestablished.
But the County’s review of the Band’s litigation history improperly conflates the
“cession” of reservation land with disestablishment. 11 Throughout the 1900s, first under a
1909 jurisdictional statute and later under the ICCA, the Band sought damages for the
uncompensated disposition of its land under the general land laws. The Band argued that
its reservation still existed at the time of the Nelson Act, and that the Nelson Act entitled
the Band to compensation for unallotted land opened for sale and settlement. But it did not
argue that the reservation was disestablished by the Nelson Act. Like the County, the Court
views as representative the Band’s claims leading to the Court of Claims’ 1986 decision:
The claimants’ position is that the 1863 and 1864 treaties reserved the Mille
Lac Reservation to the Mille Lac Band for so long as the Band complied with
the condition of Article 12; that the Band did comply with the condition; that
the United States, in violation of standards of fair and honorable dealings (a)
opened the reservation lands to disposal under the public land laws in
violation of the treaties; . . . (d) disposed of the Band’s reservation land under
the public land laws both before and after the 1889 Act although the law was
crystal clear that Interior was entirely without authority to issue valid patents
to Indian lands; and (e) failed to pay the fair market value of the land and
timber so disposed of. But for the Government’s unfair and dishonorable
dealings, but for the use of the legalistic Section 6 proviso as a pretext for
taking the Band’s property, all of the reservation land would have been
disposed of initially under the Nelson Act. The claimants would have
In support of its argument, the County identifies various statements in the Band’s
past complaints and briefs such as “the reservation ceased to exist” or the reservation was
“relinquished” or “disposed of.” Read in context, these statements reflect the Band’s
position that, despite its legal rights in its reservation, the reservation’s land had come to
rest almost entirely in non-Band members. In other words, the Band argued that the
reservation had ceased to exist de facto, not de jure. And insofar as the Band referred to
the “disposal” and “relinquishment” of its land under the Nelson Act, those terms are not
equivalent to disestablishment. See infra Section II.C.4.
11
57
received the benefit of 1889 Act compensation plus the right under the Indian
Claims Commission Act, to recover the fair market value of those lands, less
payments on the claim.
(Carter Decl., Ex. 117, at 16-17 (footnote omitted) (emphasis added).) The Band’s claim,
as before the Court of Claims in 1911, was that the Treaties of 1863 and 1864 did not
disestablish the Mille Lacs Reservation; that the Nelson Act promised payment for the
disposal of reservation lands under that Act; and that the United States disposed of
reservation land under the general land laws, rather than the Nelson Act, without
compensating the Band. The Band did not argue that the Nelson Act disestablished the
reservation; instead, the Band simply sought compensation for the United States’ disposal
of reservation lands without payment to the Band, in contravention of the Act. 12
The Court finds that the Band’s prior litigation positions are fully consistent with its
position before this Court, and that the Band is therefore not estopped from asserting that
its reservation has never been disestablished or diminished.
4.
Laches
Next, the County argues that the Band’s claims are barred by laches. The County
relies principally on City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197
(2005), and Wolfchild v. Redwood County, 91 F. Supp. 3d 1093, 1105 (D. Minn. 2015),
aff’d, 824 F.3d 761 (8th Cir. 2016). In Sherrill, the Supreme Court observed that “[t]he
See Minn. Chippewa Tribe v. United States, 11 Cl. Ct. 221, 236–37 (1986)
(“Plaintiffs . . . contend . . . that by treaty the United States promised the band that it would
not be compelled to leave its reservation . . . ; and that despite its continuing good conduct
the band was ejected without benefit of payment for nearly half of the land.”); see generally
supra Section I.F.6.
12
58
principle that the passage of time can preclude relief has deep roots in our law, and this
Court has recognized this prescription in various guises. It is well established that laches,
a doctrine focused on one side’s inaction and the other’s legitimate reliance, may bar longdormant claims for equitable relief.” Id. at 217. Applying laches, the Court held that the
Oneida Indian Nation was barred from asserting a claim to sovereignty (in particular,
immunity from local taxation) to land last occupied by the tribe two centuries ago, which
had recently been purchased by band members in fee. Id. at 214–15 (“We . . . hold that
standards of federal Indian law and federal equity practice preclude the Tribe from
rekindling embers of sovereignty that long ago grew cold.” (internal quotation marks
omitted)).
And in Wolfchild, descendants of the Mdewakanton Sioux alleged that a twelvesquare-mile reservation sold to private landowners between 1865 and 1895 had never been
disestablished, and sought to dispossess the defendant landowners. Wolfchild, 91 F. Supp.
3d at 1102. Applying Sherrill, this Court held that the plaintiffs’ claims were barred by
laches. The Court reasoned that “[t]he Sherrill doctrine has been applied to dismiss
centuries old Indian land claims that would have a disruptive effect and would upset the
justified expectations of the Defendants in a number of cases.” Id. at 1104 (collecting such
cases). The Court found that the plaintiffs’ claims to the land would have a significantly
disruptive effect, and given the tribe’s inaction, the Court concluded that the claims were
barred under Sherrill:
The landowner Defendants assert that public records establish that their title
to the properties at issue originated with land patents and grants issued in the
1800’s. Since that time, the Defendants and their predecessors in title have
59
used and occupied the properties, improving and developing the land for
agriculture, businesses and residences. Throughout this time, the land has
also been governed and taxed by the State of Minnesota and the Municipal
Defendants. The public record further demonstrates that ditches, watershed
districts, roads and other rights of way were openly established and used.
Plaintiffs do not dispute that by 1891, all land patents for the disputed area
had been issued. Plaintiffs thus had notice, for well over one hundred years,
that others were in wrongful possession of land to which Plaintiffs now claim
title.
Id.
The Court finds that laches does not bar the Band’s claims. Unlike in Wolfchild, the
Band does not seek to oust any landowners within the Mille Lacs Reservation. Nor does it
seek damages for the disposition of reservation land. Rather, it seeks only declaratory and
injunctive relief concerning its law enforcement authority within the 1855 treaty area. And
unlike in Sherrill, the Band’s claim to law enforcement authority within the reservation
would not upset any reliance interests. The Band has remained in continuous possession of
parts of the reservation since it was established in 1855, and has asserted rights to the
reservation throughout that time. Importantly, as reflected by the filings of the United
States and State of Minnesota, appearing as amici curiae, a decision recognizing the
reservation’s continued existence would not upset any settled expectations. (See Amicus
Curiae Brief of the United States [Doc. No. 265-1]; Amicus Curiae Brief of the State of
Minnesota [Doc. No. 250].) Indeed, both the United States and Minnesota have recognized
the reservation’s continued existence within the 1855 treaty area. 13
See 2015 Interior M-Opinion at 2 (“The 1863 and 1864 Treaties, as well as the
1889 Nelson Act, fail to evince a clear Congressional intent to disestablish the Reservation
and, in fact, guaranteed the Band continuing rights to its Reservation.”); Amicus Curiae
Brief of the State of Minnesota at 11 (“[T]he Mille Lacs Band and various state agencies
13
60
Because the Band has occupied and actively defended its rights in the Mille Lacs
Reservation since its inception and timely filed this lawsuit seeking declaratory and
injunctive relief concerning its law enforcement authority, and further recognizing the
Band’s claims would not upset longstanding reliance interests, the Court finds that the
laches doctrine does not bar the Band’s claims.
5.
The Indian Claims Commission Act
Finally, the County argues that the Indian Claims Commission Act bars the Band’s
claims. It is true that the ICCA barred claims that could have been brought under it, yet
were not brought within five years. ICCA § 2, 60 Stat. 1049 (Aug. 18, 1946). But the Act
also provided that “[n]o claim accruing after the date of the approval of this Act shall be
considered by the Commission.” Id. Again, the County incorrectly equates the Band’s
claims in this litigation (claims for declaratory and injunctive relief regarding the Band’s
law enforcement authority on the reservation) with an issue raised by those claims (whether
the Mille Lacs Reservation has ever been disestablished). The Band’s claims, which
accrued in 2016, could not have been brought under the ICCA, and are therefore not subject
to the statute’s time-bar.
The County argues that the Band’s law enforcement authority claims are an effort
to re-litigate the “ancient” issue of its treaty rights by artful pleading. It relies principally
on Oglala Sioux Tribe of Pine Ridge Indian Reservation v. U.S. Army Corps of Engineers,
have intergovernmental cooperative agreements already in place to clarify and guide
regulatory responsibilities in the 1855 treaty area. Ongoing intergovernmental cooperation
can be relied upon to ensure continuity and efficient governance.”).
61
where the court reasoned: “A tribe cannot avoid the Indian Claims Commission Act
through ‘artful pleading.’ It cannot obtain review of a historical land claim otherwise barred
by the Act by challenging present-day actions involving the land.” 570 F.3d 327, 332 (D.C.
Cir. 2009) (citations omitted). But there, the tribe’s claims would have “require[d] the court
to decide whether to rescind the Sioux Tribe’s agreements with the United States approving
the 1889 Act’s diminishment of the Great Sioux Reservation, to declare that Act null and
void, and to treat the area as if the 1868 Treaty had not been modified”—claims that could
have been brought under the ICCA. Id.
By contrast, the Band’s claims here do not require this Court to set aside any treaty,
statute, or agreement—it merely must interpret them to determine the scope of the Band’s
present law enforcement authority on the Mille Lacs Reservation. As the D.C. Circuit
reasoned in Oglala Sioux:
The Tribe answers that the Indian Claims Commission Act does not bar suits
to determine a reservation’s boundaries. This is generally true, but the Tribe
puts the matter much too broadly. The reservation boundary cases do not run
afoul of the Indian Claims Commission Act because the courts were being
called upon to interpret federal legislation and executive orders, not to set
these sources aside or to treat them as void on the basis of centuries-old flaws
in the ratification process.
Id. at 333. Because the Band’s claims merely require the Court to interpret statutes, treaties,
and agreements, not to “treat them as void,” this case falls into the same class as the
reservation boundary cases referenced in Oglala Sioux.
Accordingly, the Court finds that the ICCA does not bar the Band’s claims.
62
C.
Disestablishment of the Mille Lacs Reservation
As noted at the outset, in this litigation the Band seeks declaratory and injunctive
relief regarding its law enforcement authority on the Mille Lacs Reservation. An issue
essential to the Band’s claims, and the issue brought before the Court on the present
motions, is whether the Mille Lacs Reservation remains as it was under the Treaty of 1855,
or whether subsequent treaties and Acts of Congress have disestablished or diminished the
reservation. The County asserts that the Treaties of 1863 and 1864 disestablished the
reservation, leaving only a temporary right of occupancy insufficient to constitute a
“reservation” in the term’s legal sense. The County also asserts that the reservation was
disestablished by the Treaty of 1867, the Nelson Act, and three Acts of Congress at the
turn of the nineteenth century. Before considering the effect of these treaties and statutes
on the existence of the Mille Lacs Reservation, the Court will first examine the standards
governing this important question.
1.
The Law of Reservation Disestablishment
It is undisputed that the Treaty of 1855, which “reserved and set apart” more than
61,000 acres at Lake Mille Lacs “for the permanent home[]” of the Mille Lacs Ojibwe,
established a reservation. Treaty with the Chippewa art. 2, Feb. 22, 1855, 10 Stat. 1165.
The question is to what extent that reservation exists today. As the Supreme Court recently
explained, “To determine whether a tribe continues to hold a reservation, there is only one
place we may look: the Acts of Congress.” McGirt v. Oklahoma, 140 S. Ct. 2452, 2462
(2020). Congress “wields significant constitutional authority when it comes to tribal
relations, possessing even the authority to breach its own promises and treaties. But that
63
power . . . belongs to Congress alone.” Id. (citation omitted). Thus, “only Congress can
divest a reservation of its land and diminish its boundaries.” Solem v. Bartlett, 465 U.S.
463, 470 (1984). But “[o]nce a block of land is set aside for an Indian Reservation and no
matter what happens to the title of individual plots within the area, the entire block retains
its reservation status until Congress explicitly indicates otherwise.” Id. (citation omitted);
see also City of New Town v. United States, 454 F.2d 121, 125 (8th Cir. 1972) (“The
opening of an Indian reservation for settlement by homesteading is not inconsistent with
its continued existence as a reservation.”). Congress’s intent to disestablish a reservation
“must be clear.” Nebraska v. Parker, 577 U.S. 481, 488 (2016) (citation omitted).
The Supreme Court has described the standards governing disestablishment
analysis, often referred to as the Solem framework, as “well settled.” Id. at 487. “The most
probative evidence of diminishment is, of course, the statutory language used to open the
Indian lands.” Hagen v. Utah, 510 U.S. 399, 411 (1994) (citation omitted). “Common
textual indications of Congress’ intent to diminish reservation boundaries include
‘[e]xplicit reference to cession or other language evidencing the present and total surrender
of all tribal interests’ or ‘an unconditional commitment from Congress to compensate the
Indian tribe for its opened land.’” 14 Parker, 577 U.S. at 488 (quoting Solem, 465 U.S. at
See DeCoteau v. Dist. Cty. Ct. for Tenth Jud. Dist., 420 U.S. 425, 445 (1975)
(finding disestablishment where statute ratified an agreement providing that the tribe
“hereby cede, sell, relinquish, and convey to the United States all their claim, right, title,
and interest in and to all the unallotted lands within the limits of the reservation”); Rosebud
Sioux Tribe v. Kneip, 430 U.S. 584, 597 (1977) (finding diminishment where statute
provided that the tribe would “cede, surrender, grant, and convey to the United States all
their claim, right, title, and interest in” part of its reservation); South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329, 344–45 (1998) (finding diminishment where statute ratified
14
64
470). Language “providing for the total surrender of tribal claims in exchange for a fixed
payment evinces Congress’ intent to diminish a reservation, and creates an almost
insurmountable presumption that Congress meant for the tribe’s reservation to be
diminished.” Id. (citations and internal quotation marks omitted).
Courts have also considered extrinsic evidence of Congressional intent to
disestablish a reservation. As the Hagen Court explained: “We have also considered the
historical context surrounding the passage of the surplus land Acts, although we have been
careful to distinguish between evidence of the contemporaneous understanding of the
particular Act and matters occurring subsequent to the Act’s passage.” 510 U.S. at 411
(citation omitted). The context surrounding a statute’s passage may indicate an intent to
disestablish
where
the
circumstances
“unequivocally
reveal
a
widely-held,
contemporaneous understanding that the affected reservation would shrink as a result of
the proposed legislation.” Solem, 465 U.S. at 471. And courts have also considered
subsequent demographic history and federal treatment of the reservation as having “some
evidentiary value.” Id.; Hagen, 510 U.S. at 411.
Although such extrinsic evidence of Congressional intent to disestablish a
reservation has long been considered under the Solem framework, the Supreme Court in
McGirt emphasized that such evidence is relevant only in the face of statutory ambiguity.
The Court explained:
tribe’s agreement to “cede, sell, relinquish, and convey to the United States all their claim,
right, title, and interest in and to all the unallotted lands within the limits of the reservation”
in exchange for payment).
65
[The] value such [extrinsic] evidence has can only be interpretative—
evidence that, at best, might be used to the extent it sheds light on what the
terms found in a statute meant at the time of the law’s adoption, not as an
alternative means of proving disestablishment or diminishment. . . .
There is no need to consult extratextual sources when the meaning of a
statute’s terms is clear. Nor may extratextual sources overcome those terms.
The only role such materials can properly play is to help “clear up . . . not
create” ambiguity about a statute’s original meaning. And, as we have said
time and again, once a reservation is established, it retains that status “until
Congress explicitly indicates otherwise.”
McGirt, 140 S. Ct. at 2469 (citations omitted); see Oneida Nation v. Village of Hobart, 968
F.3d 664, 675 n.4 (7th Cir. 2020), reh’g denied (Sept. 18, 2020) (“We read McGirt as
adjusting [the Solem] framework by establishing statutory ambiguity as a threshold for any
consideration of context and later history.”).
Throughout the disestablishment inquiry, “we resolve any ambiguities in favor of
the Indians, and we will not lightly find diminishment.” Hagen, 510 U.S. at 411 (citing
South Dakota v. Bourland, 508 U.S. 679, 687 (1993) (Blackmun, Souter, JJ., dissenting)
(“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit.”)).
2.
The Treaties of 1863 and 1864
Following the 1862 uprisings by the Dakota Sioux and Chief Hole-in-the-Day, the
United States endeavored to consolidate Minnesota’s Chippewa at a reservation created
near Leech Lake. After lengthy negotiations, during which the Mille Lacs Band’s
representatives made their opposition to removal from their reservation clear, Senator Rice
obtained all the Ojibwe delegates’ assent to the Treaty of 1863. Article I of that treaty
provided: “The reservations known as Gull Lake, Mille Lac, Sandy Lake, Rabbit Lake,
66
Pokagomin Lake, and Rice Lake, as described in the [Treaty of 1855], are hereby ceded to
the United States.” Treaty of 1863 art. 1, 12 Stat. 1249. As “consideration [for] the
foregoing cession,” the United States created a reservation near Leech Lake, promised to
make certain improvements to it, and agreed to extend the Indians’ annuities provided for
in the Treaty of 1855, furnish supplies for ten years, and pay the bands’ chiefs money owed
under an 1854 treaty. Id. arts. 2–5. But the treaty also provided that none of the Indians
would be required to remove to Leech Lake until the United States had complied with its
obligations, and that, “owing to the heretofore good conduct of the Mille Lac Indians, they
shall not be compelled to remove so long as they shall not in any way interfere with or in
any manner molest the persons or property of the whites.” Id. art. 12.
The County reads Article 1 as “plain unmistakable language,” by which “the six
Mississippi Chippewa [b]ands ceded all ‘their right, title and interest’ to the” 1855
reservations, including Mille Lacs. (Mem. in Supp. of Def.’s Mot. for Summ. J. at 50.)
According to the County, such language, together with the payments provided in Articles
3 and 5, creates “an almost insurmountable presumption that Congress meant for the tribe’s
reservation to be diminished.” Solem v. Bartlett, 465 U.S. 463, 470–71 (1984). The County
then interprets the Article 12 proviso separately, and concludes that the “temporary right
of occupancy” there created does not constitute a “reservation.”
Of course, Article 1 does not state that the Mille Lacs Band “ceded all their right,
title and interest” in the Mille Lacs Reservation, as characterized by the County. Rather,
Article 1 stated that the six reservations “are hereby ceded to the United States.” Cf.
DeCoteau v. Dist. Cty. Ct. for Tenth Jud. Dist., 420 U.S. 425, 445 (1975) (finding
67
disestablishment where statute ratified an agreement providing that the tribe “hereby cede,
sell, relinquish, and convey to the United States all their claim, right, title, and interest in
and to all the unallotted lands within the limits of the reservation”); Rosebud Sioux Tribe
v. Kneip, 430 U.S. 584, 597 (1977) (finding diminishment where statute provided that the
tribe would “cede, surrender, grant, and convey to the United States all their claim, right,
title, and interest in” part of its reservation); South Dakota v. Yankton Sioux Tribe, 522 U.S.
329, 344–45 (1998) (finding diminishment where statute ratified tribe’s agreement to
“cede, sell, relinquish, and convey to the United States all their claim, right, title, and
interest in and to all the unallotted lands within the limits of the reservation” in exchange
for payment).
Like any treaty between the United States and an Indian tribe, the Treaty of 1863
“must . . . be construed, not according to the technical meaning of its words to learned
lawyers, but in the sense in which they would naturally be understood by the Indians.”
Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 676,
modified sub nom. Washington v. United States, 444 U.S. 816 (1979) (quotation omitted).
And like any matter of interpretation, the Court must read Article 1 in the context of the
whole treaty. See, e.g., Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okl. Tax Comm’n,
829 F.2d 967, 979 (10th Cir. 1987) (concluding that separate sections of a statute, read in
pari materia, did not reveal clear Congressional intent to divest reservation lands of their
Indian country status).
The Court therefore must read Article 1, providing that the six reservations were
“ceded” to the United States, together with the Article 12 proviso, which provided that the
68
Mille Lacs Band “shall not be compelled to remove so long as they shall not in any way
interfere with or in any manner molest the persons or property of the whites.” Treaty of
1863 arts. 1, 12. The Court concludes that, read together, these provisions do not clearly
reflect a Congressional intent to disestablish the Mille Lacs Reservation. Although the
treaty provided that “[t]he reservation[] known as . . . Mille Lac . . . [is] hereby ceded to
the United States,” courts look for “language evidencing the present and total surrender of
all tribal interests.” Solem, 465 U.S. at 470 (emphasis added). By Article 12, the Band
expressly and unambiguously reserved its right to occupy the Mille Lacs Reservation. As
persuasively explained by the Court of Claims more than a century ago:
The language of the proviso would be difficult to construe in any other way
than the granting of a right of occupancy to the Mille Lac Band. That they
shall not be compelled to remove was certainly equivalent to a right to
remain. Remain where? Why, on the Mille Lac Reservation, for all other
reservations had been by the treaty ceded to the Government.
Mille Lac Band of Chippewas v. United States, 47 Ct. Cl. 415, 440–41 (1912), rev’d on
other grounds sub nom. United States v. Mille Lac Band of Chippewa Indians, 229 U.S.
498 (1913). With respect to the Mille Lacs, at least, the Treaty of 1863 plainly did not
constitute a “present and total surrender” of all the Band’s rights in its reservation.
To the extent the juxtaposition of Articles 1 and 12 creates an ambiguity, permitting
the Court to consider extrinsic evidence of Congressional intent under McGirt, that
evidence compels the conclusion that the Treaty of 1863 did not disestablish the Mille Lacs
Reservation. During the negotiations precipitating the treaty, the Band refused to leave its
reservation, and repeated the Band members’ belief that Commissioner Dole had promised
them that they could remain on their reservation as a reward for their assistance during
69
Hole-in-the-Day’s uprising. (See McClurken Rep. at 47-48, 51-57.) Following closed-door
negotiations led by Senator Rice, the Band’s position was reflected in the Article 12
proviso, and Senator Rice reported that the delegates left Washington “satisfied with the
treaty.” (Id. at 60.)
The County’s contention that the treaty divested the Band of its reservation, granting
only a limited right of occupancy in its place, does not fit the record of the treaty
negotiations and cannot be squared with the Article 12 proviso’s role as a reward to the
Mille Lacs for their aid during the 1862 uprisings. As the Court of Claims fittingly asked:
Was this proviso, “the reward for their signal services of loyalty,” a “mere license to live
on their reservation, bury their dead there, build their improvements, and then . . . be
dispossessed at the pleasure of the advancing whites?” Mille Lac Band of Chippewas, 47
Ct. Cl. at 440. To the contrary, the Court finds, as did the Court of Claims in 1912, that the
treaty’s historical context demonstrates that the proviso was intended by Congress and
understood by the Band, not as a mere license to occupy a former reservation’s land, but
to preserve the Band’s Indian title to the Mille Lacs Reservation. 15 Indeed, Senator Rice
himself—who claimed “[e]very word in [the treaty] . . . emanated from my pen,” and who
“would not allow any changes” to the treaty—later confirmed that the Band’s
Cf. id. at 443 (“No mere license to fish and hunt was conferred upon the Mille
Lac Indians by article 12 of the treaty of 1864 . . . . What other Indian right, then, could
have been intended save the right of occupancy? . . . [The treaty] confirmed rather than
extinguished their rights under the treaty of 1855. The language of article 12 is not
ambiguous and if considered apart from the context of the whole instrument could convey
but one meaning.”).
15
70
understanding of the proviso was correct: “[T]he understanding of the chiefs as to the treaty
was right. [The Nelson Act] is the acknowledgment of the Government that you were right,
that ‘you have not forfeited your right to occupy the reservation.’” H.R. Exec. Doc. No.
51-247, at 164 (1890) [Doc. Nos. 230 & 230-1]; White Rep. at 98. And the mere rumor
that the Band’s negotiators had ceded their reservation resulted in “strong and credible
threats against the negotiators’ lives.” (McClurken Rep. at 61.) Moreover, even Dr. Driben,
one of the County’s own experts, opined that the Mille Lacs Band did not understand the
Treaty of 1863 to result in the loss of their rights to their reservation. 16
To be sure, it is apparent that some federal officials anticipated, and even desired,
that the Mille Lacs would remove to the new reservation near Leech Lake in short order. 17
Q. Did band leaders state repeatedly that they understood the 1863 and
1864 treaties to preserve the reservation for them?
16
A. Yes. In fact, there’s a number of documents in the list that you provided
me where the Mille Lacs Anishinaabe are saying that quite clearly. From
their perspective -- I want to emphasize from their perspective -- there was
no change in the reservation in 1863, or ‘64, from their perspective.
Q. And do you have any reason to doubt that those statements accurately
reflected their understanding of the treaties?
A. No. I think that those statements do reflect their understanding of the
agreements of ‘63 and ‘64. . . .
(Driben Dep. at 66.)
17
See, for example, Commissioner Dole’s speech during the treaty negotiations:
I cannot promise but what it may be necessary that the government should
use its power for their removal . . . . It may be barely possible that the people
of Minnesota will consent to the Indians now living at Millac, to remain
there . . . for the present. They may consent in the future for them to remain
71
But the Treaty of 1863 did not accomplish that result, and was, even under the County’s
interpretation, at most a first step toward that goal. As the Supreme Court recently
explained regarding Congress’s belief that allotting reservation land would precipitate the
end of the reservation system: “[J]ust as wishes are not laws, future plans aren’t either.
Congress may have passed allotment laws to create the conditions for disestablishment.
But to equate allotment with disestablishment would confuse the first step of a march with
arrival at its destination.” McGirt v. Oklahoma, 140 S. Ct. 2452, 2465 (2020). Likewise, to
equate the Treaty of 1863, which may have been designed to create the conditions for future
removal of the Mille Lacs Band and the disestablishment of their reservation, with a final
act of disestablishment would erroneously “confuse the first step of a march with arrival at
its destination.” Id.
Subsequent treatment of the reservation further bolsters the conclusion that the
treaty did not disestablish the Mille Lacs Reservation. It is true that, following the treaty,
local lumbermen spent decades attempting (quite successfully) to undermine the Band’s
possession of reservation timberland. See supra Section I.D. But it is equally true that the
Band steadfastly opposed removal from its reservation. Although, at times, the Department
of the Interior sided against the Band, such adverse decisions were quickly reversed or
there forever if they will become good citizens. But I am sure that it will not
give satisfaction to the people of Minnesota . . . .
(McClurken Rep. at 54-55; see also id. at 56 (stating that the Mille Lacs “have earned this
from the Government that they might . . . be allowed to remain where they are at least for
the present”).)
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stayed. Ultimately, however, “only Congress can divest a reservation of its land and
diminish its boundaries.” Solem, 465 U.S. at 470. When Congress addressed the conflicting
Interior decisions regarding the reservation’s status, it stayed any further disposition of
lands on the Mille Lacs Reservation. See Act of July 4, 1884, 23 Stat. 76, 89. And when
Congress passed the Nelson Act in 1889—which applied only to the “reservations” in
Minnesota—Congress “adjusted and composed” the controversy regarding the Band’s
rights, and “the government thus . . . consented to recognize the contention of the Indians.”
United States v. Mille Lac Band of Chippewa Indians, 229 U.S. 498, 507 (1913).
Because the Treaty of 1863, read as a whole, does not clearly reflect Congress’s
intent to disestablish the Mille Lacs Reservation, the Court finds that it did not do so. The
treaty reserved to the Band an indefinite right to occupy its reservation, conditioned only
on the Band’s good behavior. That right is inconsistent with the “present and total surrender
of all tribal interests” in the reservation. Solem, 465 U.S. at 470. Insofar as the treaty is
ambiguous, the historical context, the contemporary understanding of the Band, and
subsequent treatment of the reservation by Congress all support the conclusion that the
Treaty of 1863 did not disestablish the reservation. At the very least, the record does not
demonstrate the “clear” Congressional intention required for disestablishment. Parker, 577
U.S. at 488.
The Treaty of 1864 is in all material respects identical to the Treaty of 1863. Thus,
for the same reasons that the Court finds the Treaty of 1863 did not disestablish the Mille
Lacs Reservation, the Court finds that the Treaty of 1864 did not, either.
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3.
The Treaty of 1867
The Court turns now to the Treaty of 1867. The Treaties of 1863 and 1864 served
to consolidate Minnesota’s Chippewa at a single reservation near Leech Lake. When
lumber and railroad interests encroached on that reservation, and the unsuitability of its
location became clearer, the United States negotiated to unite the Chippewa at White Earth
instead. To that end, the Treaty of 1867 granted a new reservation at White Earth, and
provided: “The Chippewas of the Mississippi hereby cede to the United States all their
lands in the State of Minnesota, secured to them by the second article of their [Treaty of
1864].” Treaty of 1867, 16 Stat. 719.
The County appears to argue that this cession language applies to the Mille Lacs
Reservation. But the Mille Lacs Reservation was “secured to [the Mille Lacs]” by the
Treaty of 1855, not the Treaty of 1864. To the extent the County contends that the Mille
Lacs Reservation was “secured” by the Article 12 proviso, and therefore ceded under the
Treaty of 1867, the County misreads the treaty: the Treaty of 1867 ceded lands
“secured . . . by the second article” of the Treaty of 1864, not Article 12. Because the
Treaty of 1867 concerned only the reservation created near Leech Lake, the Court finds
that it had no effect on the Mille Lacs Reservation.
4.
The Nelson Act
Next, the Court turns to the Nelson Act. The Nelson Act established a commission
to negotiate with Minnesota’s Chippewa “for the complete cession and relinquishment in
writing of all their title and interest in and to all the reservations of said Indians in the State
of Minnesota, except the White Earth and Red Lake Reservations . . . , for the purposes
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and upon the terms hereinafter stated.” Nelson Act § 1, 25 Stat. 642 (Jan. 14, 1889). If the
commission obtained the Chippewas’ assent to the Act, that assent would “operate as a
complete extinguishment of the Indian title . . . for the purposes and upon the terms in this
act provided.” Id. The Act provided for the sale of reservation lands, and created a
“permanent fund” within the Treasury Department, into which “all money accruing from
the disposal of said lands”—after deducting certain expenses—would be deposited. Id. § 7.
Some of the interest accruing on that fund would be distributed to the Chippewa; some
would be “devoted exclusively to the establishment and maintenance of a system of free
schools among said Indians.” Id. The Act also permitted Congress to appropriate the fund’s
principal “for the purpose of promoting civilization and self-support among the said
Indians.” Id.
In addition, the Nelson Act provided for the removal of Minnesota’s Chippewa to
White Earth, where they would be entitled to allotments:
[A]s soon as the census has been taken, and the cession and relinquishment
has been obtained, approved, and ratified . . . , all of said Chippewa Indians
in the State of Minnesota, except those on the Red Lake Reservation,
shall . . . be removed to and take up their residence on the White Earth
Reservation, and thereupon there shall . . . be allotted lands in severalty to
the Red Lake Indians on Red Lake Reservation, and to all the other of said
Indians on White Earth Reservation . . . .
Id. § 3. Section 3 contained a proviso, however, permitting “any of the Indians residing on
any of said reservations” to “take his allotment in severalty under this act on the reservation
where he lives at the time of [sic] the removal herein provided for is effected, instead of
being removed to and taking such allotment on White Earth Reservation.” Id. Finally, as a
result of Senator Sabin’s efforts to retain the lands acquired at Mille Lacs through the
75
Sabin-Wilder scheme, § 6 included a proviso prohibiting the sale of reservation lands on
which a “subsisting, valid, pre-emption or homestead entry” existed, and permitting such
entrants to attempt to perfect their title. Id. § 6.
The Nelson Act Agreement, obtained by the Chippewa Commission appointed
under the Act, recorded the Mille Lacs Band’s assent to the Act. By that Agreement, the
Mille Lacs “consented and agreed to” the Nelson Act, and agreed to two forms of cession.
First, the Band agreed to “grant, cede, relinquish, and convey to the United States all of our
right, title, and interest in and to” lands at White Earth and Red Lake not required to make
the allotments provided for by the Act. H.R. Exec. Doc. No. 51-247, at 46. Second, the
Band also agreed to “forever relinquish to the United States the right of occupancy on the
Mille Lac Reservation, reserved to us by the twelfth article of the [Treaty of 1864].” Id.
After signing the Nelson Act Agreement, the Band requested to take its allotments at Mille
Lacs pursuant to the § 3 proviso, and few agreed to remove to White Earth. See id. at 1–2;
see also Slonim Decl., Ex. 64; McClurken Rebuttal at 5-12.
The Court begins its analysis with the text of the Nelson Act and Agreement. It is
true, as the County emphasizes, that the Nelson Act established a commission to negotiate
“the complete cession and relinquishment . . . of all [the Chippewas’] title and interest in
and to all the reservations,” and the Act provided that the Indians’ assent would “operate
as a complete extinguishment of the Indian title.” Nelson Act § 1. This language was,
however, accompanied by an important qualification that the County does not address:
such “cession[s],” “relinquishment,” and “extinguishment” were “for the purposes and
upon the terms” of the Nelson Act. Id. That purpose was to permit the sale of reservation
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timber and agricultural land not allotted to the Indians, and to create a permanent fund for
the benefit of all the Chippewa, into which the proceeds from such sales would be placed
in trust. See id.; Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp. 1001, 1004–
05 (D. Minn. 1971) (“It is apparent in light of events before and after the passage of the
Nelson Act that its purpose was not to terminate the reservation or end federal
responsibility for the Indian but rather to permit the sale of certain of his lands to
homesteaders and others.”); State v. Forge, 262 N.W.2d 341, 346 (Minn. 1977) (“Sales of
the extensive agricultural and timber lands ceded [under the Nelson Act] were . . . to be
conducted by the Federal government, and the proceeds of these sales were to be held in
trust by the government for the benefit of the Indians.”).
The Nelson Act, read as a whole, had three relevant features. First, it permitted
Minnesota’s Chippewa to obtain allotments, either at White Earth or on their present
reservations. Nelson Act § 3, 25 Stat. 642. Second, it opened unallotted portions of the
reservations to sale and settlement. Id. §§ 1, 4–6. And third, it provided that the proceeds
of such sales would be placed in trust, for the benefit of the entire tribe. 18 Id. § 7. By the
The County emphasizes that the Nelson Act “did not create a technical trust.”
Chippewa Indians of Minnesota v. United States, 307 U.S. 1, 3 (1939). The Chippewa
Indians Court’s statement was made, however, in the context of a claim that “by the Act
of 1889, Congress abdicated its plenary power of administration of the Chippewas’
property as tribal property, recognized that the reservations of the respective bands were
not tribal property, and agreed to hold the proceeds of the ceded lands in strict and
conventional trust for classes of individual Indians in accordance with the program outlined
in the Act.” Id. That the Nelson Act did not create a “strict and conventional trust” so as to
support the particular equitable claims asserted in Chippewa Indians has no bearing on the
disestablishment question. The point is that the Nelson Act did not offer the Chippewa a
fixed sum in exchange for their land; rather, it provided for the sale of their land, and that
the proceeds (less the Government’s expenses) would be held in a fund, the interest on
18
77
Act’s plain terms, the Act required “cession,” “relinquishment,” and “extinguishment”
only for these purposes.
So understood, the statute does not reflect a clear Congressional intent to
disestablish the Mille Lacs Reservation, despite the cession language included in the Act
and Agreement. The Supreme Court has continuously held that neither allotting reservation
land nor opening reservation land for sale to non-Indians necessarily results in the
disestablishment of the subject reservation. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2464
(2020) (“For years, States have sought to suggest that allotments automatically ended
reservations, and for years courts have rejected the argument. . . . [T]his Court has
explained repeatedly that Congress does not disestablish a reservation simply by allowing
the transfer of individual plots, whether to Native Americans or others.”); Mattz v. Arnett,
412 U.S. 481, 504 (1973) (“The presence of allotment provisions in the 1892 Act cannot
be interpreted to mean that the reservation was to be terminated.”); see also City of New
Town v. United States, 454 F.2d 121, 125 (8th Cir. 1972) (“The opening of an Indian
reservation for settlement by homesteading is not inconsistent with its continued existence
as a reservation.”). And, importantly, the § 3 proviso expressly permitted Band members
to refuse removal to White Earth, and instead take their allotments at Mille Lacs.
Because the Nelson Act’s cession language was not unqualified, it does not reflect
the “present and total surrender of all tribal interests.” Solem v. Bartlett, 465 U.S. 463, 470
which would be applied for the benefit of the entire tribe. Such an arrangement is, for all
purposes here relevant, fairly considered a “trust.”
78
(1984). 19 Nor did the Nelson Act’s sale and trust provisions constitute the type of sumcertain compensation which may, together with language evidencing complete cession,
create “an almost insurmountable presumption that Congress meant for the tribe’s
reservation to be diminished.” Id.; see Minn. Chippewa Tribe v. United States, 11 Ct. Cl.
221, 226 (1986) (“[The Nelson Act] differed from most earlier treaties because it provided
for the sale of the ceded land and the establishment of a trust held by the United States for
the tribe, rather than for a cession in return for a sum certain paid to the Indians.”).
Moreover, this Court and the Minnesota Supreme Court have previously held that
the Nelson Act did not result in the disestablishment of subject reservations. In Leech Lake
Band of Chippewa Indians v. Herbst, Judge Devitt, writing for this Court, found that the
Leech Lake Band retained hunting and fishing rights on the Leech Lake Reservation. 334
F. Supp. 1001, 1004–05 (D. Minn. 1971). The Court reasoned: “It is apparent in light of
events before and after the passage of the Nelson Act that its purpose was not to terminate
the reservation or end federal responsibility for the Indian but rather to permit the sale of
certain of his lands to homesteaders and others.” Id. Because “the existence of this
continuing [guardian-ward] relationship [between the Band and the United States]
negatives any inference that the Leech Lake Reservation . . . was terminated,” the Court
See also United States v. Grey Bear, 828 F.2d 1286, 1290 (8th Cir.), reh’g en
banc granted in part, opinion vacated in non-relevant part, 836 F.2d 1088 (8th Cir. 1987),
and on reh’g en banc, 863 F.2d 572 (8th Cir. 1988) (“We conclude that the ‘cede,
surrender, grant, and convey’ language of the 1904 Act, standing alone, does not evince a
clear congressional intent to disestablish the Devils Lake Reservation. In the past, when
Congress has intended to disestablish a reservation, it generally has forthrightly stated this
intention.” (collecting cases)).
19
79
held that the Band’s hunting and fishing rights on reservation land had not been terminated
by the Nelson Act. Id. at 1006; accord State v. Forge, 262 N.W.2d 341, 346 (Minn. 1977)
(“Although the disestablishment effect of the Nelson Act is not free from doubt, we are
convinced after a review of the voluminous authorities cited to us that the act did not
terminate the Leech Lake Reservation.”).
The Minnesota Supreme Court reached a similar conclusion regarding the White
Earth and Grand Portage reservations. State v. Clark, 282 N.W.2d 902, 907 (Minn. 1979)
(holding that the Nelson Act did not disestablish the White Earth reservation, because (1)
it did not disestablish the Leech Lake Reservation, from which the Chippewa were
expected to remove to White Earth; (2) Congress subsequently treated White Earth as a
reservation; and (3) the Chippewa Commission’s negotiations reflected the parties’ belief
that the act would preserve all but four townships of the White Earth Reservation); Melby
v. Grand Portage Band of Chippewa, No. CIV 97-2065, 1998 WL 1769706, at *8 (D.
Minn. Aug. 13, 1998) (“[T]he Court finds that the statutory language of the Nelson Act
does not disestablish the entire [Grand Portage] reservation, because it reserved parcels of
land for Indians who elected to remain on the reservation.”).
The County emphasizes that, despite his decision regarding Leech Lake, Judge
Devitt later held that the Nelson Act diminished the Red Lake and White Earth
Reservations. See United States v. Minnesota, 466 F. Supp. 1382 (D. Minn. 1979), aff’d
sub nom. Red Lake Band of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980)
[hereinafter Red Lake Band]; White Earth Band of Chippewa Indians v. Alexander, 518 F.
Supp. 527 (D. Minn. 1981), aff’d, 683 F.2d 1129 (8th Cir. 1982) [hereinafter White Earth
80
Band]. In Red Lake Band, the Court reasoned that the language of the band’s written
agreement to the Nelson Act—that the band would cede “all right, title, and interest” to “so
much of said Red Lake Reservation as is not embraced in the following described
boundaries”—was “precisely suited for the purpose of eliminating Indian title and
conveying to the government all the Band’s interest in the ceded lands.” 466 F. Supp. at
1385 (quotation omitted); see H.R. Exec. Doc. No. 51-247, at 27–28 (Red Lake Band’s
agreement to the Act). Similarly, in White Earth Band, the Court concluded that the same
result obtained with respect to four townships on the White Earth Reservation, which had
likewise been excluded from the land expressly reserved to the band in its written
agreement to the Nelson Act. 518 F. Supp. at 1385–86; H.R. Exec. Doc. No. 51-247, at 37
(White Earth Band’s agreement to the Act). In both cases, the Eighth Circuit affirmed
without adding to the diminishment analysis.
But these cases are not inconsistent with the cases holding that the Nelson Act did
not disestablish subject reservations, nor do they support the conclusion that the Mille Lacs
Reservation was disestablished or diminished. Although the County asserts that Judge
Devitt “changed his position on the Nelson Act,” the cases are fully reconcilable with each
other and with the rules for disestablishment articulated in McGirt. (Mem. in Opp’n to Pls.’
Mot. for Summ. J. [Doc. No. 257], at 66.) “The Nelson Act treated various bands or tribes
and reservations differently, and contemplated that a separate agreement would be
negotiated with individual bands or tribes pursuant to the Act.” White Earth Band of
Chippewa Indians v. Alexander, 683 F.2d 1129, 1135 (8th Cir. 1982) (citation omitted).
The Red Lake Band’s agreement provided that the band ceded “so much of said Red Lake
81
Reservation as is not embraced in the following described boundaries,” and went on to
describe the reservation’s intended post-Nelson Act boundaries. H.R. Exec. Doc. No. 51247, at 27–28. In Red Lake Band, this Court held that the lands outside of the enumerated
boundaries were no longer part of the reservation. Similarly, the White Earth Band agreed
to cede “so much of said White Earth Reservation as is not embraced in the following
described boundaries,” and the agreement then listed thirty-two of the reservation’s thirtysix townships. Id. at 37. In White Earth Band, this Court held that the four townships not
listed in the agreement were no longer part of the reservation. And in both cases, the bands
had been informed by the Chippewa Commission that their reservations would shrink. 20
The Leech Lake agreement did not follow the same form as the White Earth and
Red Lake agreements, but instead provided for the band’s consent to the Nelson Act and
for a general “cession” of the Leech Lake Reservation “for the purposes and upon the terms
stated in said act.” Id. at 49. This Court, as well as the Minnesota Supreme Court, held that
the Leech Lake Reservation was not thereby disestablished or diminished. Similar to the
Leech Lake Band, the Mille Lacs Band’s agreement provided for the Band’s consent to the
See H.R. Exec. Doc. No. 51-247, at 80 (Senator Rice, stating to the Red Lake
Band: “You must not, of course, expect to keep all your reservation . . . . You may think
that you ought to have what we consider too much, and that what we consider is enough is
too small; so we must talk it over calmly . . . ; but that territory which is now and always
will be useless to you, you might as well part with and avoid a repetition of the difficulties
between yourselves and the whites.”); White Earth Band, 518 F. Supp. at 532 (“The
transcripts of the negotiations between the Rice Commission and the [White Earth] Indians
clearly reflect that the proposed cession of the four townships was fully considered by the
Indians, and that it was understood that the reservation would be diminished by cession of
those lands.”).
20
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Nelson Act, and that the Band “hereby forever relinquish . . . the right of
occupancy . . . reserved to us by the [Article 12 proviso].” Id. at 45–46. Unlike the
agreements with the Red Lake and White Earth Bands, the Mille Lacs’ agreement did not
expressly provide for the cession of a subset of the reservation’s land. There is, therefore,
no textual basis for a finding of diminishment, unlike in the Red Lake and White Earth
cases.
Nor is there a textual basis for concluding that the Mille Lacs, by assenting to the
Nelson Act and relinquishing its “right of occupancy” under the Article 12 proviso, thereby
ceded their reservation. As explained above, the Nelson Act merely provided for the
allotment and sale of reservation land, the proceeds to be held in trust for Minnesota’s
Chippewa. Each court to address the Nelson Act has concluded that it did not reflect
Congressional intent to disestablish subject reservations. Although the Band agreed to
“forever relinquish” its rights under the Article 12 proviso, the proviso was not the source
of the Band’s rights in its reservation. Rather, as explained previously, the Band held its
reservation under the Treaty of 1855; the Article 12 proviso operated to express the parties’
intention that the Treaties of 1863 and 1864 did not deprive the Band of that reservation so
long as the Band maintained its good conduct. For all the foregoing reasons, the Court finds
that, construed as a whole, the unambiguous language of the Nelson Act and Agreement
do not evidence a clear Congressional intent to disestablish or diminish the Mille Lacs
Reservation.
To the extent the Act and Agreement are ambiguous, their historical context bolsters
the conclusion that the Mille Lacs Reservation was not disestablished. In explaining the
83
Nelson Act to the Band, Senator Rice—the author of the Treaty of 1863—represented that
the Nelson Act confirmed that the Band had retained its reservation, and that accepting
allotments under the Act “will not affect these old matters at all . . . but, on the contrary,
leaves you in a stronger position than before.” H.R. Exec. Doc. No. 51-247, at 164–65. The
Band, which had itself suggested taking allotments at Mille Lacs in an 1888 petition, 21
called Rice’s explanation “perfect,” and the Band’s negotiators declared their intention to
take “our allotments on this reservation, and not be removed to White Earth.” H.R. Exec.
Doc. No. 51-247, at 165–66, 168; see also id. at 74 (“They tell us we are going to stay here
forever, and that they are going to make allotments here to us.”).
The County points to a number of subsequent events as evidence that the Nelson
Act was regarded as disestablishing the reservation. For example, the County contends that
disestablishment is evidenced by later decisions of the Department of the Interior, Acts of
The County characterizes the Band’s 1888 petition as an indication that the Band
desired to give up its reservation, having concluded that relinquishing the reservation in
exchange for allotments was the only way to prevent settlers’ and lumbermen’s persistent
encroachment. (See Driben Decl. ¶ 5; Driben Rep. at 57; Driben Dep. at 62, 128.) But the
Band’s statements do not reflect a desire to terminate the reservation. The Band’s petition
stated that “[w]e are told that we ceded our reservation at Mille Lac to the United States in
1863,” but “we never intended to go away from our home at Mille Lac,” and pleaded for
the opportunity to take allotments at Lake Mille Lacs. (Slonim Decl., Ex. 54, at 7.) This
petition reflects a desire to strengthen the Band’s rights to its reservation, not forfeit them.
(See Valentine Rebuttal at 16-17 (opining that the 1888 petition “implies a desire to retain
their reservation, not to rid themselves of it”).) Nor does the County explain why taking
allotments is inconsistent with continued reservation status—it plainly is not. See McGirt,
140 S. Ct. at 2464 (“For years, States have sought to suggest that allotments automatically
ended reservations, and for years courts have rejected the argument.”); Mattz v. Arnett, 412
U.S. 481, 504 (1973) (“The presence of allotment provisions in the 1892 Act cannot be
interpreted to mean that the reservation was to be terminated.”).
21
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Congress, 22 the Mississippi Chippewa Tribe’s 1936 constitution, cartographic records, and
demographic evidence regarding changes to the reservation’s population. (See generally
Mem. in Supp. of Def.’s Mot. for Summ. J.; see also supra Section I.F.) Although such
extrinsic evidence may have “some evidentiary value,” Solem v. Bartlett, 465 U.S. 463,
471 (1984), the Court does not find it helpful, on these facts, in ascertaining whether
Congress intended to disestablish the Mille Lacs Reservation through the Nelson Act. At
the very least, such evidence does not override the language of the Nelson Act and
Agreement, coupled with the contemporary evidence of the Nelson Act’s meaning. Nor is
such evidence so strong as to demonstrate the clear Congressional intent required for this
Court to find disestablishment.
The County also argues that the Supreme Court, in its 1913 Mille Lac Band decision,
necessarily held that the Nelson Act disestablished the Mille Lacs Reservation. The Court
disagrees. There, the Supreme Court held that the existing controversy over the
reservation’s status under the Article 12 proviso was “adjusted and composed” by the
As explained further in the next Section, the County points to Congressional
Resolutions in 1893 and 1898 that allegedly reflect Congress’s understanding that the Mille
Lacs Reservation had been disestablished by the Nelson Act. But as the Supreme Court
held in its 1913 Mille Lac Band decision, those Resolutions were made in violation of the
Nelson Act. See United States v. Mille Lac Band of Chippewa Indians, 229 U.S. 498, 509
(1913) (holding that the United States’ disposal of land on the Mille Lacs Reservation
following the Nelson Act was “not for the benefit of the Indians, but in disregard of their
rights,” and was “clearly in violation of the trust” created by the Nelson Act). Because
those resolutions were contrary to the Nelson Act—and in any event bear only “some
evidentiary value,” Solem, 465 U.S. at 471—the Court does not find them persuasive in
discerning Congress’s intention when passing the Nelson Act. Moreover, two other
statutes, enacted in 1890, reflect the opposite understanding. See supra note 5.
22
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Nelson Act. United States v. Mille Lac Band of Chippewa Indians, 229 U.S. 498, 506
(1913). According to the Court, the Nelson Act embodied a compromise, by which the
United States agreed to recognize the Band’s contention that the Treaties of 1863 and 1864
did not disestablish its reservation, on the condition that entries made prior to the Nelson
Act would not be disturbed. Id. at 507. The Court reasoned that, therefore, the reservation’s
land was subject to disposal under the Nelson Act—except land subject to valid entries
pre-dating the Nelson Act—and that by disposing of the land under the general land laws
instead, the United States had violated the Nelson Act. Id. at 509. The Court did not address
whether the Nelson Act, by permitting the allotment and disposal of reservation land,
operated to disestablish the Mille Lacs Reservation, and it did not need to reach that
question in order to determine that the United States had violated the Nelson Act.
Likewise, the Supreme Court’s decision in United States v. Minnesota did not
resolve whether the Nelson Act disestablished the reservation. 270 U.S. 181 (1926). There,
the Court reiterated its holding that the Nelson Act “adjusted and composed” the
controversy regarding the Band’s rights to its reservation under the Treaties of 1863 and
1864. Because the Nelson Act’s compromise recognized valid entries made prior to the
Act, the Court concluded that the United States could not recover reservation swampland
patented to Minnesota in 1871. Id. at 198. Contrary to the County’s interpretation, this
holding did not require the Court to find that the swampland was not reservation land as of
1871, and it certainly did not require the Court to examine whether the Nelson Act
disestablished the reservation in 1889.
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In sum, the Court finds that the Nelson Act and Nelson Act Agreement do not
reflect clear Congressional intent to disestablish or diminish the Mille Lacs Reservation.
The documents are unambiguous, and their import was to allot reservation lands, open the
reservation to sale and settlement, and apply the proceeds of such sales for the benefit of
Minnesota’s Chippewa. These purposes are consistent with the continued existence of the
reservation. And, importantly, the Nelson Act expressly permitted the Band to take
allotments at Mille Lacs rather than White Earth, undermining the implication that the Act
was intended to terminate the reservation. When viewed in the historical context of the
Nelson Act and Agreement, the conclusion that Congress did not clearly intend to
disestablish the Mille Lacs Reservation becomes plain. Although the Band was
subsequently deprived of many of the benefits of the Act, including by the Congressional
resolutions discussed below, the Chippewa Commission represented that the Band would
strengthen its position at Mille Lacs—not forfeit it—by assenting to the Act. The historical
record suggests the Band so understood the Act. The Court agrees with that understanding,
and finds that the Nelson Act and Agreement did not disestablish or diminish the
reservation.
5.
Post-Nelson Act Congressional Resolutions
The County argues that several additional acts disestablished the Mille Lacs
Reservation—namely, the 1893 and 1898 Resolutions and the 1902 Act. The Court
considers each in turn.
In the 1893 Resolution, Congress confirmed “all bona fide pre-emption or
homestead filings or entries allowed for lands within the Mille Lac Indian Reservation”
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made between the Interior Department’s 1891 Walters decision, which held that the
reservation’s lands were open to entry under the general land laws, and the 1892 Mille Lac
Lands decision, which resulted in the cancellation of all homestead and preemption entries
made after the Nelson Act. J. Res. 5, 53rd Cong., 28 Stat. 576 (1893). The Court finds that
this resolution does not reflect a clear intent to disestablish the Mille Lacs Reservation. The
1893 Resolution simply permitted disposal of reservation land under the general land laws,
rather than under the Nelson Act. Merely opening reservation lands to sale and settlement
to non-Indians does not necessarily result in disestablishment. See McGirt v. Oklahoma,
140 S. Ct. 2452, 2464 (2020) (“[T]his Court has explained repeatedly that Congress does
not disestablish a reservation simply by allowing the transfer of individual plots, whether
to Native Americans or others.”); see also City of New Town v. United States, 454 F.2d
121, 125 (8th Cir. 1972) (“The opening of an Indian reservation for settlement by
homesteading is not inconsistent with its continued existence as a reservation.”).
And to the extent the resolution is ambiguous, its legislative history confirms that
Congress’s purpose was to protect the reliance interests of those settlers who made entries
following the Walters decision—entries that covered 31,659 of the reservation’s 61,000
acres—rather than to disestablish the reservation. See H.R. Rep. No. 53-149, at 1 (1893)
(“The object of the pending bill is to confirm the entries . . . made in good faith under the
[Walters] ruling . . . , and between that date and the time when said ruling was
reversed . . . . The occupants of these lands made their entries and paid their money under
the general land laws and in accordance with the ruling of the Secretary of the Interior. The
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subsequent reversal of that ruling by the same Secretary ought not to deprive them of their
equitable right to these lands.”).
In 1898, Congress passed a second resolution, following mistaken reports that the
Band did not desire to take allotments at Mille Lacs. See supra Section I.F.3. The 1898
Resolution provided:
That all public lands formerly within the Mille Lac Indian
Reservation . . . be, and the same are hereby, declared to be subject to entry
by any bona fide qualified settler under the public land laws of the United
States; and all preemption filings heretofore made . . . and all homestead
entries or applications to make entry under the homestead laws, shall be
received and treated in all respects as if made upon any of the public lands
of the United States subject to preemption or homestead entry: Provided,
That [certain land at Mille Lacs] be . . . perpetually reserved as a burial place
for the Mille Lac Indians . . . .
J. Res. 40, 55th Cong., 30 Stat. 745 (1898). Although the 1898 Resolution reflects the
assumption that the Mille Lacs Reservation was “public land[]” (and Congress therefore
declared the lands open to entry), the resolution did not itself purport to return the
reservation’s lands to the public domain. 23 Cf. Hagen v. Utah, 510 U.S. 399, 412 (1994)
(finding disestablishment where the statute provided that “all the unallotted lands within
said reservation shall be restored to the public domain” (emphasis omitted)). And merely
The County makes much of the fact that the title of the 1893 Resolution and the
text of the 1898 Resolution refer to the “former” Mille Lacs Reservation. That Congress
subsequently refers to a reservation as a “former” reservation does not necessarily mean
that a prior statute was intended to disestablish the reservation. See McGirt, 140 S. Ct. at
2472–73 (finding no disestablishment despite Congressional references to a “former”
reservation); Solem v. Bartlett, 465 U.S. 463, 479 (1984) (same). Indeed, that Congress
believed in 1898 that the reservation had already been disestablished would undermine the
claim that Congress intended to disestablish the reservation via the 1898 Resolution—that
is, that Congress intended to do what it believed had already been done.
23
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opening reservation lands to settlement does not result in disestablishment. See McGirt,
140 S. Ct. at 2464; City of New Town, 454 F.2d at 125. Rather, as the Supreme Court held
in Mille Lac Band, the resolution was merely an assertion of power over land believed to
be “the absolute property of the government” due to a “misapprehension of the true relation
of the government to the lands.” United States v. Mille Lac Band of Chippewa Indians, 229
U.S. 498, 510 (1913). The Court finds that the resolution does not reflect a clear
Congressional intent to disestablish the Mille Lacs Reservation.
Finally, the Court turns to the 1902 Act. The Act provided for “payment to the
Indians occupying the Mille Lac Indian Reservation . . . , to pay said Indians for
improvements made by them . . . upon lands occupied by them on said Mille Lac Indian
Reservation . . . upon condition of said Indians removing from said Mille Lac
Reservation.” Act of May 27, 1902, 32 Stat. 245, 268. The Act’s provisos permitted Band
members who purchased land on the reservation to remain, and permitted members to take
allotments at any other reservation in Minnesota that was subject to allotment. Id.
The Court finds that there is no textual basis for the contention that the Act
disestablished the Mille Lacs Reservation. Congress referred to the reservation as “the
Mille Lac Indian Reservation,” and offered a payment for improvements on the reservation
to Band members who chose to leave for another reservation. The arrangement was
voluntary. It reflects no intention, let alone a clear intention, to disestablish the reservation.
Crucially, when the Band agreed to the Act, its written agreement expressly provided:
It is understood that nothing in this agreement shall be construed to deprive
the said Mille Lacs Indians of any benefits to which they may be entitled
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under existing treaties or agreements not inconsistent with the provisions of
this agreement, or the [Act of 1902]. 24
(Carter Decl., Ex. 61, at 25.) The Act and subsequent agreement, therefore, furnish no
textual basis for a finding of disestablishment.
Nor does the Act’s context indicate that Congress intended to disestablish the
reservation. By the time Congress began to consider the Act, the Band had been largely
dispossessed of the Mille Lacs Reservation, and no land remained for the allotments
permitted under the Nelson Act. See supra Sections I.F.1–6. In negotiating with Inspector
McLaughlin and Agent Michelet, the Band repeated its understanding that the Nelson Act
preserved its reservation, and expressed its desire to remain there. (See Slonim Decl., Ex.
134, at 56, 73 (“[Senator Rice] pointed to the different directions defining our reservation
and said that it would come to pass that this land would be allotted to us.”).) And
McLaughlin and Michelet expressly assured the Band that the Act contemplated only their
removal, that it would not result in the forfeiture of the Band’s “back claims” under the
The County also emphasizes that the agreement referred to the reservation as a
“former” reservation. But if Congress’s use of the word “former” offers little evidence of
Congressional intent to disestablish a reservation, see supra note 23, use of the word in an
agreement penned by federal negotiators bears virtually no weight. See Washington v.
Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675–76, modified sub
nom. Washington v. United States, 444 U.S. 816 (1979) (“[I]t is the intention of the parties,
and not solely that of the superior side, that must control any attempt to interpret the
treaties. When Indians are involved, this Court has long given special meaning to this rule.
It has held that the United States, as the party with the presumptively superior negotiating
skills and superior knowledge of the language in which the treaty is recorded, has a
responsibility to avoid taking advantage of the other side. ‘[T]he treaty must therefore be
construed, not according to the technical meaning of its words to learned lawyers, but in
the sense in which they would naturally be understood by the Indians.’” (quoting Jones v.
Meehan, 175 U.S. 1, 11 (1899)) (second alteration in original)).
24
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Nelson Act, and that they would lose “no rights by moving.” (Id. at 67-71.) Finally,
although the demographic record is complicated, it suggests that hundreds of Band
members did not take advantage of the Act. See supra Section I.F.5.
6.
Summary
By the Treaty of 1855, the Band was promised a “permanent home[]” at Lake Mille
Lacs. Following the Band’s defense of the United States during the uprisings of 1862, the
Band received special treatment in the Treaties of 1863 and 1864: While other bands were
required to leave their reservations and be consolidated near Leech Lake, the treaties’
Article 12 proviso permitted the Mille Lacs Band to remain on their reservation during
their good behavior. The treaties, read as a whole—and particularly when viewed in their
historical context—do not clearly reflect Congressional intent to disestablish the
reservation. Nor does the Treaty of 1867, which pertained only to the White Earth and
Leech Lake Reservations. By the Nelson Act, Congress “consented to recognize the
contention of the Indians” that their reservation persisted, but as part of the Act’s
compromise, Congress permitted prior entries to proceed to patent. United States v. Mille
Lac Band of Chippewa Indians, 229 U.S. 498, 507 (1913). The Act also provided for the
sale of reservation pine and agricultural land, the proceeds to be held in trust for the
Chippewa; but it expressly permitted the Mille Lacs to take allotments on the reservation.
Again, the statutory scheme and the Band’s agreement to it, viewed as a whole and
especially when viewed in context, do not reflect the clear intention required for this Court
to find disestablishment. Nor do the Resolutions of 1893 and 1898 (which merely permitted
disposal of reservation lands in violation of the Nelson Act), or the 1902 Act (which
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preserved the Band’s rights under prior treaties), reflect the clear intention required for this
Court to find disestablishment.
Over the course of more than 160 years, Congress has never clearly expressed an
intention to disestablish or diminish the Mille Lacs Reservation. The Court therefore
affirms what the Band has maintained for the better part of two centuries—the Mille Lacs
Reservation’s boundaries remain as they were under Article 2 of the Treaty of 1855.
III.
CONCLUSION
Accordingly, for all the foregoing reasons, and based on the submissions and the
entire file and proceedings herein, IT IS HEREBY ORDERED that Plaintiffs’ Motion for
Partial Summary Judgment [Doc. No. 223] is GRANTED, and Defendants’ Cross-Motion
for Partial Summary Judgment [Doc. No. 239] is DENIED.
IT IS SO ORDERED.
Dated: March 4, 2022
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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