Ojibwe Tribe Fights for Jurisdiction Over Pipeline Case

Law360 By Victoria McKenzie (September 9, 2021, 4:11 PM EDT) -- An Ojibwe tribe has asked a federal judge to reject Minnesota's "meritless" resistance to an Enbridge Pipeline-related lawsuit in tribal court, saying the state is trying to dodge tribal court jurisdiction.

In a letter filed in Minnesota federal court on Wednesday, the White Earth Band of Ojibwe told U.S. District Judge Wilhelmina Wright that there was no need to reconsider her decision from last week to dismiss the state Department of Natural Resources' complaint based on tribal sovereign immunity.

The White Earth Band sued Minnesota's DNR in tribal court in August for "unilaterally taking 5 billion gallons of water and giving it to Enbridge Line 3," the tribe's attorney and member of the White Earth Band, Frank Bibeau, told Law360 on Wednesday.

The complaint is notable as it is the first enforcement action under a 2018 White Earth Band law establishing the inherent rights of wild rice, the tribe's main treaty food, which grows in water. Manoomin, the Ojibwe word for wild rice, is lead plaintiff in the case.

After the White Earth Band Tribal Court rejected the DNR's motion to dismiss the suit, agency officials turned to the federal court system hoping to secure an injunction, arguing that the tribal court lacks jurisdiction because the DNR is protected by sovereign immunity. Judge Wright dismissed the case last week for lack of subject matter jurisdiction, citing the tribe's own sovereign immunity and declining to offer an "improper advisory opinion" as to the White Earth Band court's jurisdiction.

Unhappy with the judgment, the DNR sent a letter to Judge Wright over Memorial Day weekend hoping to get her to reconsider the decision.

According to the letter, the court acted hastily before hearing arguments on the tribe's sovereign immunity, which does not extend to the tribal judge, who was named in his official capacity. The agency cited a series of Eighth Circuit decisions that it said grant federal courts the authority to ''review tribal court jurisdiction and enjoin tribal court proceedings."

On Wednesday, White Earth Band member and co-counsel Joe Plumer argued that the DNR's arguments were "erroneous" and based on a misreading of case law.

The U.S. Supreme Court has found that a federal court should not intervene "until after the tribal court has had a full opportunity to determine its own jurisdiction," Plumer explained. "The tribal court exhaustion doctrine is not optional."

As to the DNR's other assertions, tribal sovereign immunity is a "threshold jurisdictional matter" and therefore subject to dismissal on the court's own motion, according to Plumer.

Furthermore, as the circuit court recognized in a 2019 decision involving oil and gas companies who were sued in tribal court,

sovereign immunity "extends to tribal officials who act within the scope of the tribe's lawful authority," Plumer said, adding that exceptions only apply to officials acting contrary to federal law, which the DNR did not allege in this case.

The tribal court has set an evidentiary hearing on Sept. 20 on the White Earth Band's motion for an injunction, which seeks to nullify the DNR water permit.

"We need to have our rights recognized," Bibeau said. "We need to be able to enforce our laws — we can't have people just arbitrarily taking 5 billion gallons of water."

Counsel for the state did not immediately reply to requests for comment.

Minnesota is represented by Colin Patrick O'Donovan and Oliver J. Larson of the state Attorney General's Office.

The tribes are represented by Frank W. Bibeau of the White Earth Band and Joseph Plumer of Plumer Law Office.

The case is Minnesota Department of Natural Resources et al. v. The White Earth Band of Ojibwe et al., case number 0:21-cv-01869, in the U.S. District Court for the District of Minnesota. (Complaint)

--Editing by Steven Edelstone.

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