Mille Lacs Band of Ojibwe v. County of Mille Lacs, Minnesota

Background

The Mille Lacs Band of Ojibwe is a federally recognized Indian tribe. The Band’s lawsuit concerns whether the 1855 Mille Lacs Indian Reservation remains intact and the extent of the Band police department’s authority to conduct law-enforcement activities within the reservation, including activities involving non-Band members. The County contends that the 1855 reservation was disestablished and that Indian country in the County is limited to land held in trust for the Band, the Minnesota Chippewa Tribe, or Band members.

The County revoked a cooperative law-enforcement agreement with the Band in 2016. The County then issued a protocol and statements warning that Band police officers could face criminal consequences if they conducted law-enforcement activities outside trust lands or involving non-Band members. The Band alleges that these actions interfered with and deterred its police officers from exercising authority that the Band possessed under federal law, tribal law, a federal deputation agreement, and federal commissions issued to the officers.

Discovery dispute

During discovery, the defendants sought a 2013 report prepared after an investigation into the conduct and oversight of members of the Band’s police department. The subpoena to Ballard Spahr and hearing officer Wallace G. Hilke also requested interview records, documents reviewed during the investigation, and invoices for the law firm’s services. The outside law firm objected, asserting attorney-client privilege and work-product protection. The plaintiffs separately identified the report as privileged in their document-production responses.

The defendants moved to compel the plaintiffs to produce the report and to enforce the third-party subpoena. The plaintiffs moved for a protective order and to quash the subpoena, meaning to cancel it.

Court’s analysis

Federal Rule of Civil Procedure 26(b)(1) generally permits discovery of nonprivileged information relevant to a party’s claims or defenses. The party seeking discovery must first make a threshold showing that the requested information is relevant to the subject matter of the case.

The court identified the controlling issues in the lawsuit as the geographic limits of the reservation and the legal scope of the Band’s sovereign law-enforcement authority within those limits. It concluded that the conduct investigated in the 2013 report could not resolve either issue. Whether Congress had disestablished or diminished the reservation depends on statutory language, historical context, and the population that settled the land. The scope of law-enforcement authority likewise requires legal analysis concerning federal, state, and tribal law, rather than an examination of the officers’ earlier conduct.

The court also rejected the defendants’ argument that the report was relevant to standing. Standing is the requirement that a plaintiff show a concrete injury, a connection between that injury and the defendant’s conduct, and a likelihood that a favorable decision would address the injury. The court determined that the alleged injury was interference beginning in 2016 with the Band’s exercise of its law-enforcement authority—not the effectiveness of the Band’s police department or the cause of earlier law-enforcement problems. The report therefore was not relevant to standing.

The court further stated that the defendants could not rely on the report to establish a justification defense to the issues presented. It also explained that an injunction is a remedy, not a separate claim, and that the request for injunctive relief did not make the earlier report relevant.

Disposition

Judge Leo I. Brisbois denied Defendants’ Motion to Compel Against Plaintiffs and to Enforce Third-Party Subpoena. He granted Plaintiffs’ Motion for Protective Order and to Quash Defendant’s Third-Party Subpoena. The order resolved the discovery motions; it did not decide the underlying dispute about the reservation’s boundaries or the Band police officers’ legal authority.