Despite mounting legal costs, Mille Lacs County plans to appeal ruling in tribal case

Dan Whitcomb says he thinks he knows just how much Mille Lacs County's legal fight with the Mille Lacs Band of Ojibwe over its reservation boundaries has cost his large, extended family living in the county: about $20,000 over the past decade.

“That's generational wealth that didn't have to be taxed or spent, at least in my opinion,” said Whitcomb, a Mille Lacs County commissioner from the Princeton area, who was elected to the board last fall.

In late January, Whitcomb was the lone vote against the county appealing a recent federal judge's ruling in its lawsuit with the Mille Lacs Band.

Over the last six years, the county has spent more than $8 million in attorney’s fees on the case. With an appeal, those costs will grow.

Some lawmakers think the state should be on the hook for the county's legal costs, which Whitcomb said many people in his district oppose.

“One reason I got elected is that most people, the majority of the people in my townships, want this to stop,” he said. “I didn't hear anything from anybody saying they wanted to continue spending this money.”

Boundary dispute

The Mille Lacs Band of Ojibwe sued the county in 2017, after the county terminated its cooperative law enforcement agreement with the band. 

Although the lawsuit was over policing, the real issue at stake is whether the band's 61,000-acre reservation, established nearly two centuries ago by federal treaties, still exists. 

The county has long argued later treaties and acts of Congress dissolved the original reservation. It contends the band has only about 4,000 acres held in trust by the federal government.

But a year ago, U.S. District Court Judge Susan Richard Nelson affirmed the band's original reservation boundaries remain intact. On Jan. 10, she ruled the county had improperly restricted the band's law enforcement authority.

County officials say those decisions could have significant impacts for non-tribal members who live within those boundaries.

The reservation stretches around across the southern end of Mille Lacs Lake, including three townships and the communities of Onamia, Wahkon and Isle.

“It's a fairly sizable portion of the county, geographically speaking,” said County Administrator Dillon Hayes. “A lot of residents live in that area.”

County officials have concerns about law enforcement in those areas, Hayes said. He cited a 2021 Supreme Court decision, U.S. v. Cooley, which held that a tribal police officer has the authority to temporarily detain and search a non-Native American traveling on a public right-of-way running through a reservation.

“Ultimately, the majority of the board felt that was in the best interests of the residents, costs aside, to proceed with the appeal,” Hayes said.

‘Significant change’

In a statement, the county, Sheriff Kyle Burton and former County Attorney Joe Walsh, who resigned in February, said if the rulings stand, they will expand tribal jurisdiction in a variety of areas, including regulations, licensing and permitting.

In the statement Burton and Walsh argue the order allows tribal police to investigate activities of non-tribal members on land and in their homes within the reservation.

“This is a significant change for many residents and businesses that have, for over a century, been living with the shared understanding that their land was not an Indian reservation,” they stated.

But in January, the band's solicitor general, Caleb Dogeagle, told MPR News that not much will change for non-tribal members.

“There's not any additional risk or anything to fear from the Mille Lacs Band or our tribal police department,” he said. “We're here to protect everybody, regardless of their status as a band member or a non-member.”

For Whitcomb, it comes down to who supports the county in the dispute — and he says that’s no one. The federal government's position is the reservation still exists, and Gov. Tim Walz's administration has backed that.

“We don't have any allies in this fight,” Whitcomb said. “The state's not supporting us. The federal government's not supporting us. And now, they're losing support among citizens in this county.”

Financial toll

The legal costs are putting a financial strain on the county's budget — its annual tax levy went up 9.5 percent this year. Officials cited attorney's fees as one factor.

According to the U.S. Census Bureau, Mille Lacs County had about 26,800 residents in 2021 and a median household income of about $62,000, well below the state average.

Some Republican state lawmakers who represent the area have introduced bills that would require the state attorney general to reimburse Mille Lacs County $7.8 million for the legal fees. 

They say the higher costs are the result of Gov. Walz and Attorney General Keith Ellison reversing the state's longstanding position on the reservation question, and they say the county shouldn't have to bear the full cost.

“The crushing litigation costs that are being forced upon the property taxpayers of Mille Lacs County are unacceptable,” stated one of the bill’s authors, Rep. Isaac Schultz, R-Elmdale Township, in a news release.

The attorney general’s office said it did not have a comment on the proposal. Other bills introduced this session would reimburse Mille Lacs County from the state’s general fund.

Hayes said the county supports the efforts seeking reimbursement, because tribal matters are typically handled by larger bodies of government. And he said the federal decision could have implications well beyond Mille Lacs County’s borders.

Other impacts

Whitcomb said he believes some Mille Lacs County officials want to appeal the case all the way to the U.S. Supreme Court. 

He said he’s concerned that the ongoing lawsuit and higher property taxes will make it difficult for the county to hire and retain staff and attract businesses.

“This thing is spilling over into a lot of different areas, not just what's happening in the courts,” he said. “It affects our relationship with the tribe, it affects our relationships with our own citizens, and affects people that work for us.”