UNITED STATES DISTRICT COURT                             
                  DISTRICT OF MINNESOTA                                


Mille Lacs Band of Ojibwe, a       Case No. 17-cv-5155 (SRN/LIB)         
federally recognized Indian Tribe;                                       
Sara Rice, in her official capacity                                      
as the Mille Lacs Band Chief of                                          
Police; and Derrick Naumann, in   MEMORANDUM OPINION AND                 
his official capacity as Sergeant of        ORDER                        
the Mille Lacs Police Department,                                        

        Plaintiffs,                                                    

v.                                                                       

County of Mille Lacs, Minnesota;                                         
Joseph Walsh, individually and in his                                    
official capacity as County Attorney                                     
for Mille Lacs County; and Don Lorge,                                    
individually and in his official                                         
capacity as Sheriff of Mille Lacs                                        
County,                                                                  

        Defendants.                                                    


Charles N. Nauen, Arielle Wagner, and David J. Zoll, Lockridge Grindal Nauen PLLP, 
100 Washington Ave. S., Ste. 2200, Minneapolis, MN 55401; Beth Ann Baldwin, Marc 
D. Slonim, and Wyatt Golding, Ziontz Chestnut, 2101 Fourth Ave., Ste. 1230, Seattle, 
WA 98121, for Plaintiffs                                                 

Courtney E. Carter and Randy V. Thompson, Nolan, Thompson, Leighton & Tataryn, 
PLC, 5001 American Blvd. W., Ste. 595, Bloomington, MN 55437, for Defendant 
County of Mille Lacs, Minnesota                                          

Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 S. 8th St., 
Ste. 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh             

Stacy L. Bettison, Brett D. Kelley, Douglas A. Kelley, Steven E. Wolter, Kelley, Wolter 
& Scott, P.A., 431 S. 7 St., Ste. 2530, Minneapolis, MN 55415, for Defendant Don 
Lorge.                                                                   
SUSAN RICHARD NELSON, United States District Judge                        
   This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment 
on Standing, Ripeness, and Mootness [Doc. No. 146], Defendants Joseph Walsh and 
Donald Lorge’s Motion for Summary Judgment [Doc. No. 162], and Defendants County 

of Mille Lacs, Walsh, and Lorge’s Motion to Strike and for Sanctions [Doc. No. 182]. For 
the  reasons  set  forth  below,  Plaintiffs’  Motion  for  Summary  Judgment  on  Standing, 
Ripeness,  and  Mootness  is  GRANTED;  Defendants  Walsh  and  Lorge’s  Motion  for 
Summary Judgment is DENIED; and Defendants County of Mille Lacs, Walsh, and 
Lorge’s Motion to Strike and for Sanctions is DENIED.                     

I.   BACKGROUND                                                         
   This case involves important and complex issues regarding the boundaries of the 
Mille Lacs Indian Reservation and, consequently, the extent of the Mille Lacs Band’s 
sovereign law enforcement authority within those boundaries. The present motions before 
the Court, however, do not seek to resolve these issues at this time. Rather, the present 
motions address: (1) this Court’s subject matter jurisdiction; (2) threshold justiciability 

issues, including standing, ripeness, and mootness; and (3) certain defenses of immunity. 
Accordingly, the Court will limit its discussion of the facts to only those necessary to 
explain its rulings.                                                      
        A. The Parties and the Mille Lacs Indian Reservation            
   The  Plaintiffs  are  the  Mille  Lacs  Band  of  Ojibwe  (the  “Band”),  a  federally 

recognized Indian tribe; Sara Rice, the Chief of Police of the Band; and Derrick Naumann, 
a Sergeant in the Band’s Police Department (collectively, “Plaintiffs”). (Compl. [Doc. No. 
1]; see 

, 5464 (Jan. 30, 2020); Baldwin Decl. [Doc. No. 150] Ex. A at 7, 

Ex. B at 6, Ex. C at 6.) The Defendants are the County of Mille Lacs (the “County”); Joseph 
Walsh, the Mille Lacs County Attorney; and Don Lorge, the Mille Lacs County Sheriff 
(collectively, “Defendants”). (See Compl. [Doc. No. 1].) In March 2019, Magistrate Judge 
Brisbois substituted Lorge for Brent Lindgren, a former County Sheriff, after Lindgren left 
his position and Lorge became the new Sheriff. (Order on Stipulation [Doc. No. 63].) 
   Article 2 of the 1855 Treaty between the Minnesota Chippewa Tribe and the United 

States established the Mille Lacs Indian Reservation, which comprises about 61,000 acres 
of land. (

 (Feb. 22, 1855); Quist Decl. [Doc. No. 160] ¶ 3.) In Plaintiffs’ view, 
the  Reservation  established  by  the  1855  Treaty  has  never  been  diminished  or 
disestablished. (See generally Compl. [Doc. No. 1].) Within the Reservation, there are 
approximately 3,600 acres that the United States holds in trust for the benefit of the Band, 

the Minnesota Chippewa Tribe, or individual Band members. (Quist Decl. [Doc. No. 160] 
¶ 4.) The Band owns in fee simple about 6,000 acres of the Reservation, and individual 
Band members own in fee simple about 100 acres of the Reservation. (Id. ¶¶ 5-6.) In 
Defendants’ view, the Reservation established by the 1855 Treaty was diminished or 
disestablished  by  way  of  subsequent  federal  treaties,  statutes,  and  agreements.  (See 

generally County Answer [Doc. No. 17]; Walsh Answer [Doc. No. 18]; Lindgren Answer 
[Doc. No. 19].) Although the Court does not wade into this core issue today, it is important 
to recognize that this case rests on this boundary dispute.               
        B. The Opinion and Protocol                                     
   On June 21, 2016, the County terminated the 2008 law enforcement agreement 
(“2008 Agreement”) it had with the Band and County Sheriff. (Baldwin Decl. [Doc. No. 

150] Ex. H.) The 2008 Agreement allowed Band officers to exercise concurrent jurisdiction 
with the Mille Lacs County Sheriff’s Department to enforce Minnesota state law, as 
provided in 

. (Id.)                                   
   On July 18, 2016, County Attorney Walsh issued the “Mille Lacs County Attorney’s 
Office Opinion on the Mille Lacs Band’s Law Enforcement Authority.” (Baldwin Decl. 
[Doc. No. 150] Ex. I (hereafter, “Opinion”).) In general, the Opinion outlines Walsh’s 

views regarding the scope of the Band’s law enforcement authority after the termination of 
the 2008 Agreement. (Id.) The Opinion concludes, inter alia, that the Band’s “[i]nherent 
tribal jurisdiction is limited to ‘Indian Country,’” which “is limited to tribal trust lands.” 
(Id. at 14.) Moreover, the Opinion concludes that investigations conducted by Band officers 
outside Pine County are unlikely to be admissible in state court. (Id. at 8.) The Opinion 

explains that:                                                            
   As all investigations of state law violations must be completed by a peace 
   officer within his or her state law jurisdiction, either the Mille Lacs County 
   Sheriff’s  Office  or  the  police  department  of  a  municipality  must  take 
   possession of all evidence gathered regarding that investigation to ensure its 
   admissibility in state court.                                        
(Id. at 9.)                                                               
   The “Northern Mille Lacs County Protocol” further clarifies Walsh’s position on 
Band  officers’  sovereign  law  enforcement  authority  and  “is  intended  to  guide  law 
enforcement officers regarding the lawful authority of law enforcement officers” within 
the Reservation. (Baldwin Decl. [Doc. No. 150] Ex. J (hereafter, “Protocol”).) According 
to the Protocol, the Band’s “inherent tribal criminal authority doesn’t extend (1) outside of 

trust lands or (2) to non-members of the Mille Lacs Band.” (Id. (emphasis omitted).) The 
Protocol provides that Band officers “are peace officers of the State of Minnesota with state 
law enforcement jurisdiction within Pine County only.” (Id. (emphasis omitted).) Under 
the Protocol, in Mille Lacs County, Band officers have certain arrest powers, but “must 
turn over arrested persons without delay to a Mille Lacs County peace officer so an 
investigation admissible in state court may be conducted.” (Id. (emphasis omitted).)  

   Further,  the  Protocol  provides  that  Band  officers  “[m]ay  [n]ot  [l]awfully  … 
[c]onduct  investigations  regarding  violations  of  state  law  including  statements, 
investigative  stops,  traffic  stops,  and  gathering  evidence.”  (Id.  (emphasis  omitted).) 
Moreover,  the  Protocol  provides  that  Band  officers  “[m]ay  [n]ot  [l]awfully  … 
[i]mpersonate a state peace officer, obstruct justice, or engage in the unauthorized practice 

of a peace officer, primarily by interfering with investigations within Mille Lacs County.” 
(Id.) In a footnote, the Protocol clarifies that Band officers “may conduct investigations 
where they have tribal jurisdiction (e.g., civil/regulatory citations to Band members and 
investigations related to inherent tribal criminal authority).” (Id.) And the Protocol warns 
that “State Peace Officers [m]ay [n]ot [l]awfully … [a]uthorize or knowingly allow the 

unauthorized practice of a peace officer.” (Id.)                          
        C. Alleged Interference By Defendants with the Band’s Sovereign Law 
          Enforcement Authority In Response to the Opinion and Protocol 
   The record evidence makes clear that Walsh fully expected Band officers to comply 
with the Opinion and Protocol. The record is also replete with evidence that, pursuant to 

the Opinion and Protocol, County law enforcement officers repeatedly interfered with law 
enforcement measures undertaken by Band officers. In fact, Walsh testified that he never 
“suggested [compliance with the Protocol] was voluntary.” (Baldwin Decl. [Doc. No. 150] 
Ex. K, Walsh Dep. at 305.) In an email to the Band’s former Chief of Police Jared Rosati 
on July 25, 2016, Walsh stated he “trust[s] that [the Protocol] has been provided to all of 
your officers and that they have been directed to follow it.” (Id., Ex. M.) In an August 23, 

2016, email to Rosati, after quoting the Protocol, Walsh stated that a Band officer did not 
have  “inherent  tribal  criminal  authority”  to  investigate  a  non-Native  suspect  on  the 
Reservation. (Id., Ex. P at 5.) In an August 25, 2016, letter to Rosati, Walsh wrote that 
Band officers’ conduct in violation of the Opinion and Protocol “could … constitute 
obstruction of justice and the unauthorized practice of a law enforcement officer.” (Id., Ex. 

N at 2; see 

 Ex. K, Walsh Dep. at 297-98 (stating that Band officers’ violations of the 
Opinion and Protocol could constitute violations of state criminal law).)  
   There is no evidence in the record that compliance with the Opinion and Protocol 
was voluntary. In a September 20, 2016, letter to Band Police Officer Kintop, Walsh wrote 
that he “expect[s] all tribal police officers to follow the [Opinion and Protocol] for as long 

as [they are] in place.” (Id., Ex. O at 1.) He told Officer Kintop that “[i]f you wish for 
controlled substance offenders to be prosecuted in Minnesota District Court in the future, 
… please comply with the Opinion and Protocol as long as [they are] in effect to ensure 
that the investigations conducted will be admissible in state court.” (Id. at 2.) Kali Gardner, 
a former Assistant County Attorney under Walsh, testified that she understood that Walsh 
expected Band officers “to adhere to the prohibitions and the opinion in the [P]rotocol,” 

and that “other officers were advised that they could arrest tribal police officers if they” 
violated the Protocol. (Id., Ex. L, Gardner Dep. at 60.)                  
   After Walsh issued the Opinion and Protocol, then-Sheriff Lindgren “instructed 
[his] staff and deputies to follow the County Attorney’s Opinion and Protocol.” (Lindgren 
Decl. [Doc. No. 180] ¶ 3.) Indeed, Lindgren’s employees all received the Opinion and 
Protocol and, according to Lindgren, began to follow them. (Baldwin Decl. [Doc. No. 150] 

Ex. P at 2.) Further, the Sheriffs’ deputies monitored Band officers’ compliance with the 
Protocol and tracked violations. (See 

 Ex. U (email from County Sergeant Daniel Holada 
to Lindgren summarizing interactions with Band police over a weekend and listing alleged 
violations of the Protocol); Ex. V (email from Lindgren instructing Sheriff’s deputies to 
“continue to keep your direct supervisors apprised of day to day operations involving 

cooperation of Band Officers following County Attorney Opinion and Protocol”).) In a 
June 21, 2016, letter, Lindgren wrote that, when the 2008 Agreement was terminated, 
“previously dispatched calls for service to the … Band Police Department will be handled 
by the … County Sheriff’s Office.” (Id., Ex. W.)                          
   Lindgren made clear that the Opinion and Protocol would be enforced. In an August 

22, 2016, email, Lindgren told Band Chief of Police Rosati that the “Sheriff’s deputy in 
charge of the Sheriff’s office has the ultimate discretion to control any designated crime 
scene” and that Lindgren appreciated Rosati’s “willingness to undertake [a deputy’s] 
direction and control” on a particular evening. (Id., Ex. P at 6.) In an August 26, 2016, 
email,  Lindgren  directed  Sheriff’s  deputies  “to  complete  independent  investigations 
consistent with the … Opinion and Protocol” and advised that “Band Police are to notify 

[deputies] before any investigation takes place regarding evidence of criminal activity.” 
(Id., Ex. X.) Lindgren also stated that if Band officers are conducting a civil or regulatory 
stop of a Band member on trust lands, Band officers’ “role in any joint investigation is 
over” once the civil or regulatory stop is completed, “unless and until [Band officers] are 
given direction by [Sheriff’s deputies] to provide assistance.” (Id.) In a November 21, 2016, 
email, a Sheriff’s Captain told a Sheriff’s deputy that he must take a recorded statement 

from  a  Band  officer  “every  time  a  [B]and  officer  becomes  involved  in  a  criminal 
investigation and either handles evidence or collects information needed during a criminal 
investigation.” (Id., Ex. Y.)                                             
   Sheriff’s deputies at times took control of crime scenes from Band officers and 
repeated investigations that Band officers had completed. Ashley Burton, a former Band 

officer, described an encounter with a Sheriff’s deputy on August 24, 2016, after an arrest 
of a Band member. (A. Burton Decl. [Doc. No. 154] at ¶¶ 12-16.)1 She arrested a Band 


   1 Defendants move the Court to strike the declarations of Ashley Burton (formerly 
“Stavish”), Bradley Gadbois, and Scott Heidt, on the grounds that Plaintiffs violated Rules 
26(a)(1)(A)(i), 26(e)(1)(A), and 33(b) of the Federal Rules of Civil Procedure. Defendants 
seek to exclude consideration of these declarations on the grounds that the declarants’ 
identities were not disclosed in Plaintiffs’ Rule 26(a) disclosure or in any supplemental 
disclosure. Plaintiffs respond by noting that the identities of these declarants were in fact 
disclosed several times during discovery. (See Baldwin Decl. [Doc. No. 191] Exs. 1, 2; 
Kelley Decl. [Doc. No. 185] Ex. 2.) Moreover, Plaintiffs note that Defendants received 
notice of the incidents described in these declarations and the exhibits attached to the 
declarations in discovery.                                                
member on trust lands, found drugs and drug paraphernalia on the member, and planned to 
send  that  evidence  to  the  Band  Solicitor  General’s  office,  but  the  Sheriff’s  deputy 

demanded that she turn over the evidence, and she complied. (Id.) Moreover, on August 9, 
2016, Burton responded to a call involving a domestic dispute on trust lands. (Id. ¶¶ 8-11.) 
After Burton arrived on the scene, a Sheriff’s deputy arrived, informed Burton that she was 
a civilian, and requested a statement from her so that he could arrest the suspect. (Id.) 
Burton declined to give the deputy a statement, and the deputy allowed the suspect to leave. 
(Id.)                                                                     

   A current Band officer, Dusty Burton, stated in his declaration that, on September 
2, 2016, he was assisting Crow Wing County deputies with a vehicle pursuit that ended on 
trust lands. (D. Burton Decl. [Doc. No. 155] ¶¶ 8-10.) While at the scene, he began to 
interview a passenger in the suspect vehicle, who was providing information about the 
location of another person with a felony warrant. (Id.) In the middle of the interview, a 

Sheriff’s deputy arrived and directed the passenger away from Burton, leaving him unable 
to complete the investigation. (Id.) On November 20, 2016, after Burton responded to a 
call involving a recent death at a home on Band-owned fee land, a Sheriff’s deputy arrived 
on the scene and told Burton not to search anything and to leave the scene until Sheriff’s 
Office investigators arrived. (Id. ¶¶ 15-20.)                             




   The Court denies Defendants’ Motion to Strike. On a number of occasions, not only 
were the identities of these declarants disclosed to Defendants in discovery, evidence of 
these incidents was also disclosed.                                       
   A former Band officer, Scott Heidt, described a further incident on September 8, 
2016, when he and another Band officer were investigating a stabbing on trust lands. (Heidt 

Decl. [Doc. No. 159] ¶¶ 8-11.) During their investigation, they took a taped statement from 
a witness, but a Sheriff’s deputy asked the other Band officer to “hold off on taking the 
statement.” (Id.) Heidt allowed the other Band officer to finish taking his statement, and 
then the Sheriff’s deputy took his own taped statement. (Id.)             
   Plaintiff Sergeant Naumann testified about an incident that occurred during the 
revocation period2 when he and other Band officers initiated a traffic stop, located a 

Department of Corrections fugitive, removed noncompliant passengers from the vehicle, 
and found a firearm within the vehicle. (Baldwin Decl. [Doc. No. 150] Ex. Z, Naumann 
Dep. at 82.) While Band officers were searching the vehicle, a Sheriff’s deputy arrived and 
“was yelling at us telling us to stop searching the vehicle and basically getting in the way 
of my investigation, preventing me from conducting a thorough investigation.” (Id.) In a 

subsequent email on October 24, 2017 to then-Sheriff Lindgren, the Sheriff’s deputy 
involved stated that he “took control of the scene.” (Id., Ex. AA.)       
   Bradley Gadbois, a current Band investigator who worked as a Band officer in 2017, 
described an incident on September 29, 2017, when he investigated a car and suspect on 
the Reservation. (Gadbois Decl. [Doc. No. 158] ¶¶ 10-18.) After Gadbois searched the car 

and interviewed the driver, a Sheriff’s deputy arrived on the scene and conducted his own 


   2 The Court uses the term “revocation period” to refer to the period of time from the 
County’s termination of the 2008 Agreement until the time the Band, County, and Sheriff 
entered into the 2018 Agreement, discussed infra.                         
search and interview. (Id.) On another occasion, on November 3, 2017, Gadbois was 
investigating a parked vehicle containing a driver and a passenger, who was showing signs 

of an opioid overdose. (Id. ¶¶ 20-25.) After Gadbois administered Narcan to the passenger, 
which revived him, two Sheriff’s deputies arrived on the scene, and a methamphetamine 
pipe was found in the vehicle. (Id.) Gadbois wanted to conduct a drug investigation of the 
vehicle, but was prevented from doing so under the Protocol without the cooperation of the 
Sheriff’s deputies. (Id.) The deputies neither arrested the driver nor took custody of the 
vehicle. (Id.)                                                            

   James  West,  the  Band’s  Deputy  Police  Chief,  testified  that  “there  was  an 
interruption in [Band] officers’ investigations” and that “[w]hen [Band officers] show up 
on a scene, domestic or whatever it might be, they start talking to a victim or holding a 
suspect, and a sheriff’s deputy arrives and butt right in and take over the interview, or take 
possession of somebody that’s technically not under arrest.” (Baldwin Decl. [Doc. No. 150] 

Ex. BB, West Dep. at 47-48.) Moreover, Band Sergeant Naumann testified that Band 
officers “had to just stand by and let [Sheriff’s deputies] take over our scene.” (Id., Ex. Z, 
Naumann Dep. at 94.)                                                      
   At the Band’s Rule 30(b)(6) deposition, Michael Dieter, a Sergeant in the Band’s 
Police  Department,  testified  that  “[o]ften  times  county  deputies  would  try  to  take 

statements from officers as witnesses rather than just relying on our reports. They would 
often take multiple statements. If we took a statement from a witness, they might take a 
second statement from the same witness.” (Id., Ex. CC, Rule 30(b)(6) Band Dep. at 182-
83.) Former Assistant County Attorney Gardner testified that Band police “were treated as 
witnesses and not as law enforcement officers” and that Sheriff’s “deputies were instructed 
to take statements from” Band officers. (Id., Ex. L, Gardner Dep. at 42, 61-62.) 

        D. The Band’s Compliance with the Opinion and Protocol          
   Todd  Matha,  as  the  Band’s  Solicitor  General,  supervised  the  Band’s  police 
department. (Baldwin  Decl. [Doc. No. 150] Ex. DD, Matha Dep. at 205-09.) Matha 
disagreed with Walsh’s mandates, as set forth in the Opinion and Protocol, but Matha 
nonetheless directed Band officers to follow them, out of fear that Band officers would 
face criminal and civil penalties if they disobeyed them. (Baldwin Decl. [Doc. No. 150] 

Ex. DD, Matha Dep. at 205.) Matha also wanted to avoid disputes between the Band and 
the County that might serve to undermine law enforcement in the area. (Id. at 205-09.) 
Similarly, Band Chief of Police Rosati directed Band officers to follow the Opinion and 
Protocol in light of the potential imposition of criminal and civil penalties on them and to 
avoid endangering the prosecutions of any suspects that Band officers investigated. (Id., 

Ex. EE, Rosati Dep. at 92-93, 102, 116-17, 211.)                          
   After Rice became the Band’s Police Chief, she continued to ensure that Band 
officers followed the Protocol because she did not want to jeopardize the career of any 
Band officer and feared that Band officers would “go to jail.” (Id., Ex. GG, Rice Dep. at 
150-51.) Rice was especially concerned about the restrictions that the Protocol imposed on 

Band officers’ ability to use force: “What if we were to have to arrest somebody or 
something happened, or use of force issue, or even deadly force? That was my concern. So 
I just didn’t—we just made sure we abided by [the Protocol].” (Id. at 151.) Band Sergeant 
Craig Nguyen testified to a similar concern: “There are circumstances when it comes to 
officers’ personal safety when officers need to use a fire[arm], not to discharge it but to 
gain control of certain subjects involving crimes that are high violence in nature involving 

weapons, drugs, gangs, so on and so forth. [The Protocol] restrict[s] us not being able to 
do that.” (Id., Ex. HH, Nguyen Dep. at 46.)                               
   Rice testified that, although County Sheriff Lindgren told her informally that Band 
officers would not be arrested or prosecuted, she did not trust his assurances because he 
was committed to following the mandates of the Protocol. (Id., Ex. GG, Rice Dep. at 157, 
204-05.) Rice acknowledged that no one had yet been arrested but she believed that was so 

“[b]ecause we followed the [P]rotocol.” (Id. at 205.) Assistant County Attorney Gardner 
testified that County “officers were advised that they could arrest tribal police officers if 
they” violated the Protocol. (Id., Ex. L, Gardner Dep. at 60.) The Band’s Deputy Police 
Chief West testified that “[t]here was a lot of fear within the officers regarding getting 
arrested for impersonating officers” under the Protocol. (Id., Ex. BB, West Dep. at 37-38.) 

West confirmed that “[o]fficers followed the [P]rotocol.” (Id. at 42.)    
   According to Band Sergeant Naumann, “[the Protocol] caused [Band officers] to 
not be able to effectively do [their] jobs because guys were afraid to proactively patrol and 
initiate traffic stops.” (Id., Ex. Z, Naumann Dep. at 92.) Naumann elaborated that “your 
career is potentially in jeopardy if someone decides to prosecute you for doing your job 

that you’ve done for years, and we weren’t able to do our jobs.” (Id.) Accordingly, 
Naumann concluded that “[b]ased on the Northern Protocol trying to restrict our ability to 
do our job … the only thing that we felt safe without being charged with a crime or 
prosecuted for doing our jobs was arrest people on warrants.” (Id. at 84-86.) 
   In a December 2016 letter to the United States Attorney’s Office in Minnesota and 
the Department of Justice in D.C., Walsh wrote that “the Mille Lacs County Sheriff’s 

Office has taken on all state law enforcement services provided in the entirety of Mille 
Lacs County” and that a “tenuous status quo has been followed by the Mille Lacs County 
Sheriff’s Office and the Mille Lacs Band Police Department based on my Opinion and 
Protocol.” (Id., Ex. JJ; see 

 Ex. KK, Walsh Dep. at 378.) In his deposition, Walsh 
conceded that the letter was not in fact entirely accurate, notably failing to advise federal 
officials that the County Sheriff’s Office had taken on the role of investigating all violations 

of state law on trust lands and had assumed responsibility for responding to all calls and 
investigating all violations of state law on non-trust lands. (Baldwin Decl. [Doc. No. 150] 
Ex. KK, Walsh Dep. at 377-78.)                                            
        E. The Decline in Morale in the Mille Lacs Band Police Department and 
          the Resignations of Several Band Officers                     
   Band Solicitor General Matha testified that “[Band officers] took offense at … being 
relegated to essentially witnesses at a scene that had no more authority in relation to a 

criminal action than would often times just a bystander,” and that this contributed to “a 
decrease in morale and just this lack of understanding as to how it was that they were to 
perform their job.” (Baldwin Decl. [Doc. No. 150] Ex. DD, Matha Dep. at 201-02.) 
   According to Naumann, the Opinion “in not so many words [said Walsh] was going 
to  threaten  to  arrest  and  prosecute  our  officers  for  doing  our  jobs. It  was  insulting, 

demeaning, threatening …. [and] terrible.” (Id., Ex. Z, Naumann Dep. at 20.) He testified 
that  Band  officers  “were  deterred  from  protecting  our  community,”  “[could]n’t  do 
anything,” and were “[n]othing more than glorified security guards.” (Id. at 92, 98.) 
Moreover, he testified that during the revocation period “[w]e lost officers because of not 

having a cooperative agreement. We had officers leaving. Morale went down. It was pretty 
terrible for the most part. It was the worst two and a half years of law enforcement in my 
career.” (Id. at 101.) Rice testified that she was injured “[p]rofessionally because of the 
Northern Protocol” and that the Protocol “deterred [her] from doing [her] job completely.” 
(Id., Ex. GG, Rice Dep. at 11-12, 187.)                                   
   Former Band Officer Dusty Burton stated that the Sheriff’s deputies’ interference 

with  his  investigations  “undermined  [his]  credibility  as  a  police  officer  within  the 
community  and  negatively  affected  my  morale  and  that  of  my  fellow  Tribal  Police 
officers.” (D. Burton Decl. [Doc. No. 155] ¶ 21.) Similarly, Band Officer Gadbois noted 
that the Sheriff’s Office’s practice of repeating investigations completed by Band officers 
in front of criminal suspects “undermined the credibility, authority and morale” of Band 

officers. (Gadbois Decl. [Doc. No. 158] ¶ 19.)                            
   Several Band officers consequently resigned from their jobs. Heidt explained that 
“[o]ne of the reasons why I left the Tribal Police Department was because of the restrictions 
that the County Attorney’s Protocol placed on me as a licensed peace officer.” (Heidt Decl. 
[Doc.  No.  159]  ¶ 13.)  Similarly,  Ashley  Burton  stated  she  “left  the  Tribal  Police 

Department because of the restrictions that the County Attorney’s Northern Protocol placed 
on me as a licensed peace officer. I wanted to exercise my full authority as a Tribal Police 
Officer and serve the Mille Lacs Reservation communities to the fullest.” (A. Burton Decl. 
[Doc. No. 154] ¶ 25.) Gardner testified that “[s]everal [Band] officers left their department. 
I know of at least a handful that went to completely different agencies because they were 
not allowed to be police officers, and that’s what they wanted their career to be.” (Baldwin 

Decl. [Doc. No. 150] Ex. L, Gardner Dep. at 46-47.)                       
        F.  Lack of County Law Enforcement Response to Criminal Activity on 
          the Reservation                                               
   Band Chief of Police Rosati testified that, after Walsh issued the Opinion and 
Protocol, “life as a patrol cop ceased to exist. We didn’t feel we had the authority to go out 
and do our jobs, like make arrests. Like if we rolled up on a DWI, we wouldn’t be able to 
make that arrest. Our protocol was to have the county come deal with it.” (Baldwin Decl. 
[Doc. No. 150] Ex. EE, Rosati Dep. at 101.) Rosati explained that “[o]nce … the criminal 

element on the reservation found out that we no longer had authority, they knew it. And 
they would blatantly say it to our officers, ‘You can’t even arrest me.’” (Id. at 103; see 
Gadbois Decl. [Doc. No. 158] ¶¶ 26-29 (describing encounter on March 21, 2018, where 
suspect refused to comply with Band officer’s instruction because, according to suspect, 
Band officer was “not a cop”).)                                           

   Rosati further testified that the termination of the 2008 Agreement made it more 
difficult for Band officers to address drug crimes and overdoses: “[t]he people know when 
you’re not making arrests or doing what we normally did, that word traveled pretty quick, 
so it made it pretty difficult for my officers to continue our normal course of action, as far 
as combatting those overdoses.” (Baldwin Decl. [Doc. No. 150] Ex. EE, Rosati Dep. at 

197.) He testified that Band officers “[m]ade every effort to attempt or tried to follow the 
[P]rotocol,” which “limit[ed] their ability to investigate crime on non-trust land” and 
“limit[ed] their ability to investigate crime on trust lands.” (Id. at 211.) 

   Band Chief of Police Rice testified that:                            
   A majority [of Band police reports] are overdoses and drug involvement 
   where officers are actually making traffic stops on the reservation, deputy 
   shows up, blatant paraphernalia, blatant drugs right in front of everybody, 
   they are not arresting them because they are on the phone with the county 
   attorney’s office and they are saying don’t do anything, if [Band officers] 
   started that investigation, let it go. So they would long form that complaint, 
   let people walk away who had significant amounts of drugs on them. … [I]t 
   was all up to whether it was this deputy, that deputy. Some would get along 
   with us, and some wouldn’t.                                          
(Id., Ex. GG, Rice Dep. at 176.)                                          
   Band  Sergeant  Nguyen  testified  that  Band  officers  “driving around  and  being 
present” was no longer a deterrent to criminal activity because people “knew we didn’t 
have law enforcement authority when they saw a tribal cop.” (Id., Ex. HH, Nguyen Dep. 
at 76.) And that, in Ngyuen’s view, “increased the drug availability, and people from out 
of town, people who we did not know came and with them they brought drugs, and the 
gang activity also increased.” (Id.)                                      
   Similarly, former Assistant County Attorney Gardner testified that Band officers’ 
“credibility amongst the community deteriorated very quickly, because the community 
members knew that they, [Band] officers, were not allowed to do anything.” (Id., Ex. L, 
Gardner Dep. at 46.)                                                      
   According to Rosati, after the County terminated the 2008 Agreement, he did not 
believe the Sheriff’s deputies stationed “within [the Band] community knew the people 
like [Band officers] knew our people.” (Id., Ex. EE, Rosati Dep. at 123.) He noted that 
Band officers “actually understand the family trees within the community.” (Id. at 213.) 

Naumann testified that “statements [were] being taken from victims twice and from people 
that aren’t familiar with the community that don’t know the community, the community 
members, and the family structure.” (Id., Ex. Z, Naumann Dep. at 100.)    
   In the view of former Assistant County Attorney Gardner, Band officers’ knowledge 
of and connections in the Band community were “absolutely important and priceless” from 
a law enforcement perspective. (Id., Ex. L, Gardner Dep. at 23-24; cf id. at 27 (explaining 

that some Sheriff’s deputies had some knowledge of the Band community, but they had 
less knowledge than Band officers).) According to Band member Colin Cash, Band officers 
“know the Band community and they care about the community. They also know who 
belongs in the community and who is an outsider. … When Sheriff’s deputies took over 
for Band police, they did not know the people or the area. It became free [rein] for people 

using drugs and committing crimes. … The Sheriff’s deputies didn’t know the drug houses 
or the dealers. It was an open market for drugs.” (Cash Decl. [Doc. No. 156] ¶¶ 8-9, 11.) 
   Several witnesses noted a decline in police work after the revocation of the 2008 
Agreement. Rosati testified that Band officers engaged in very proactive policing before 
the 2008 Agreement was revoked, but he did not observe Sheriff’s deputies engaging in 

proactive policing after the revocation. (Baldwin Decl. [Doc. No. 150] Ex. EE, Rosati Dep. 
at 213.) Gardner testified that “deputies, when they were on the north end during the 
revocation, did not proactively patrol the reservation. Instead, they waited at the north end 
sheriff’s station for a call to come in.” (Id., Ex. L, Gardner Dep. at 69.) According to 
Naumann, the Protocol “caused us to not be able to effectively do our jobs because guys 
were afraid to proactively patrol and initiate traffic stops,” and Sheriff’s deputies “weren’t 

conducting proactive patrols.” (Id., Ex. Z, Naumann Dep. at 92, 101.) During the Band’s 
Rule 30(b)(6) deposition, Band Sergeant Dieter testified that the Protocol deterred patrol 
officers “from wanting to go out and be proactive under the idea if they were proactive and 
violated the Northern Protocol that they could be arrested for it.” (Id., Ex. CC, Rule 
30(b)(6) Band Dep. at 210-11.)                                            
   After the termination of the 2008 Agreement, the Sheriff’s Office hired additional 

deputies. (Flaherty Decl. [Doc. No. 178] Ex. 15, Mott Dep. at 16-17; Lindgren Decl. [Doc. 
No. 180] ¶ 10.) Rice testified that, although the Sheriff’s Office hired more deputies during 
the  revocation  period,  “there  was  nothing  being  done”  because  “tribal  police  were 
proactive” while Sheriff’s deputies were “all reactive.” (Baldwin Decl. [Doc. No. 150] Ex. 
GG, Rice Dep. at 180-81.) Rice elaborated that the Reservation became a “police free zone” 

when “people saw the traffic stops and nothing happened. There [weren’t] any search 
warrants being executed on the reservation. There was police presence, but they knew we 
were limited. You had deputies running around telling them we’re not cops.” (Id. at 182.) 
        G. Impact on Public Safety                                      
   Wade Lennox, a State Corrections Officer who works with felony offenders on the 

Reservation, testified regarding the impact of the Opinion and Protocol on public safety. 
(See Baldwin Decl. [Doc. No. 150] Ex. SS, Lennox Dep.) Lennox testified that he saw 
Band officers “out interacting with the community members. It was clear that part of their 
mission work was to be available, regardless of the need.” (Id. at 17.) However, Lennox 
observed several changes that he noted in an April 4, 2017, email to Rice:  

   I can share with you things have gotten significantly worse here. When I 
   started working here many of the drug deals had been driven behind closed 
   doors. Chemical use, although abundant, was not visible in the public eye. I 
   am here every week, many times twice weekly. In the last several months I 
   have witnessed numerous drug deals and use right out in the open. Needles 
   on the road side is not an uncommon observation. In the past, it would be a 
   very rare occasion I would not see Tribal Officers out and about monitoring 
   these obscure areas, I would see them on foot working together, checking out 
   the various parts of the reservation likely only known to locals. I do not see 
   the same type of law enforcement taking place anymore and it has resulted 
   in a much less safe area.                                            
(Baldwin Decl. [Doc. No. 150] Ex. TT.) Former Assistant County Attorney Gardner 
testified that Lennox’s observations in this email were accurate. (Id., Ex. L, Gardner Dep. 
at 67-68.)                                                                
   In an October 10, 2017, email to Walsh, Lennox wrote that “there simply is not the 
law enforcement presence on the Reservation there had been and that has dramatically 
impacted our probationary work” and that he “see[s] County [Sheriff’s deputies] patrolling, 
but not even remotely close to what was being done.” (Id., Ex. UU.) According to Lennox, 
after the termination of the 2008 Agreement, “[t]he general perception from the offenders 
we were working with at the time was [kind of] free rein.” (Id., Ex. SS, Lennox Dep. at 
15.) “[T]here was a general sense that [the Reservation] became almost a safe haven [for 
drug trafficking].” (Id. at 27-28.)                                       
   In  November  2017,  then  United  States  Secretary  of  the  Interior,  Ryan  Zinke, 
traveled to the Reservation. (Dieter Decl. [Doc No. 157] ¶ 7.) Because of the high levels 
of drug trafficking, use, and overdoses on the Reservation, the Office of Justice Services 
in the Bureau of Indian Affairs (“BIA”) “temporarily assigned BIA Special Agents to 

conduct saturation patrols  and work  with Band  police officers  to  help  address these 
problems.”  (Id.)  The  BIA  Special  Agents  and  Band  officers  carried  out  joint  drug 
investigations  in  2018.  (Id.  ¶ 9.)  Band  officers  notified  Sheriff’s  deputies  of  these 
investigations before they occurred. (Id. ¶ 10.)                          
        H. Special Law Enforcement Commissions (“SLECs”)                
   On January 8, 2016, under the Tribal Law and Order Act of 2010 (“TLOA”), 

 Stat. 2258, the United States agreed to assume concurrent federal 
criminal jurisdiction over the Band’s Indian country, effective January 1, 2017. (Baldwin 
Decl. [Doc. No. 150] Ex. LL.) On December 20, 2016, the BIA and the Band entered into 
a Deputation Agreement, allowing the BIA to issue SLECs to qualified Band officers. (Id., 
Ex. MM.) The Deputation Agreement allowed Band officers who held SLECs, such as 

Naumann, to enforce federal law within the Band’s Indian country. (Id.; see 

 Ex. NN 
(Band officers’ SLEC cards), Ex. Z, Naumann Dep. at 38.)                  
   Walsh acknowledged that his view was that Band officers holding SLECs could not 
exercise SLEC authority on non-trust lands within the 1855 Treaty boundaries. (Baldwin 
Decl. [Doc. No. 150] Ex. KK, Walsh Dep. at 384-85.) In an email to a Band officer, Walsh 

explained that, although the Protocol predated the issuance of the SLECs, the Protocol 
remained in force and should be followed to avoid any challenges to jurisdiction. (Id., Ex. 
OO at 2-3.)                                                               
        I.  The 2018 Agreement                                          
   In September 2018, the Band, County, and then County Sheriff Lindgren entered 
into a “Mutual Aid/Cooperative Agreement.” (Baldwin Decl. [Doc. No. 150] Ex. AAA.) 

Under  this  Agreement,  on  a  temporary  basis,  the  parties  agreed  that  the  Band  has 
concurrent jurisdiction with the Sheriff under 

: (1) over all persons on 
trust lands; (2) over all Band members within the boundaries of the 1855 Treaty; and (3) 
over any person committing or attempting to commit a crime in the presence of a Band 
officer within the boundaries of the 1855 Treaty. (Id. ¶ 4(a).) However, the Agreement 
provides that:                                                            

   This Agreement shall automatically terminate ninety (90) days after the final 
   resolution, including the exhaustion of all appeals and any proceedings on 
   remand, of the [present lawsuit]. The County and the Sheriff are entering into 
   this Agreement in reliance on the Court’s determination of the issues raised 
   in the lawsuit, including the existence and extent of Indian country in Mille 
   Lacs County, and have not insisted upon the inclusion of provisions in this 
   Agreement that would be essential to them in the absence of the lawsuit. 
(Id. ¶ 25(c).)                                                            
II.  PROCEDURAL HISTORY                                                 
   On November 17, 2017, the Band, Rice, and Naumann sued the County, Walsh, and 
Lindgren, seeking declaratory and injunctive relief, as well as costs and attorneys’ fees. 
(Compl. [Doc. No. 1] at 7-8.) First, Plaintiffs seek a declaration that, under federal law, the 
Band has:                                                                 
   inherent sovereign authority to establish a police department and to authorize 
   Band police officers to investigate violations of federal, state and tribal law 
   within the Mille Lacs Indian Reservation as established in [the 1855 Treaty], 
   and, in exercising such authority, to apprehend suspects (including Band and 
   non-Band members) and turn them over to jurisdictions with prosecutorial 
   authority.                                                           
(Id. at 7.)                                                               
   Second, Plaintiffs seek a declaration that:                          
   Pursuant  to  

(d),  

  and  2804,  the 
   Deputation Agreement between the Band and the [BIA], and the SLECs   
   issued to Band police officers by the [BIA], Band police officers have federal 
   authority to investigate violations of federal law within the Mille Lacs Indian 
   Reservation as established in [the 1855 Treaty], and, in exercising such 
   authority, to arrest suspects (including Band and non-Band members) for 
   violations of federal law.                                           
(Id.)                                                                     
   Finally, Plaintiffs seek to enjoin Defendants from taking any actions that interfere 
with Band officers’ authority, as determined by this Court. (Id. at 8.)   
   On April 27, 2020, Magistrate Judge Brisbois entered the Third Amended Pretrial 
Scheduling Order, which, inter alia, granted the parties leave to file early dispositive 
motions “only so far as are outlined in their Joint Motion for Leave to File Early Dispositive 
Motions.” (Third Am. Pretrial Scheduling Order [Doc. No. 138] at 6.) In their Joint Motion, 
the parties only sought leave to file the following dispositive motions: “(1) Plaintiffs’ 
motion for summary judgment that they have standing and that their claims are ripe and 
not moot; (2) the Defendant County Attorney and County Sheriff’s motion for summary 

judgment on their immunity defenses; and (3) the Defendant County Attorney’s motion for 
summary judgment that the Court lacks subject matter jurisdiction.” (Jt. Mot. [Doc. No. 
132] at 1-2.)                                                             
III.  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., 

 (8th Cir. 2016). Likewise, an issue 
of material fact 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., 

, 

, 

 (1986). The moving party bears the burden of establishing 
a lack of any genuine issue of material fact in dispute, Celotex Corp. v. Catrett, 

, 

, 

 (1986), and the Court must view the evidence 
and  any  reasonable  inferences  in  the  light  most  favorable  to  the  nonmoving  party. 
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 

, 

 (1986).                                                     
   Walsh and Lorge move for summary judgment alleging that this Court lacks subject 
matter jurisdiction over this matter or, alternatively, that they are nevertheless immune 
from suit. Plaintiffs move for summary judgment on three threshold issues of justiciability: 
standing, ripeness, and mootness.                                         

   The  Court  first  considers  Walsh’s  and  Lorge’s  challenge  to  subject  matter 
jurisdiction.                                                             
        B. Subject Matter Jurisdiction                                  
   Defendants Walsh and Lorge contend that there is no basis under federal law for the 
Court to exercise federal question subject matter jurisdiction over any of Plaintiffs’ claims 

of interference with the Band’s sovereign law enforcement authority. (Walsh and Lorge 
Mem. in Supp. of Mot. for Summ. J. (“Ind. Defs.’ Mem. Summ. J.”) [Doc. No. 164] at 14-
31.) Defendants further argue that Congress’s enactment of the TLOA precludes the Court 
from applying federal common law to the issues raised in this case.3 (Id. at 21-22.) In 
response, Plaintiffs contend that the Court may exercise federal question subject matter 
jurisdiction over each of its claims under federal common law, 

 and 

§ 1362, 

, and under certain treaties. (Pls.’ Mem. in Opp’n to Mot. for 
Summ. J. (“Pls.’ Opp’n Summ. J.”) [Doc. No. 173] at 12-24.)               
   Federal courts are “courts of limited jurisdiction” and only possess those powers 
authorized by the Constitution and by statute. Gunn v. Minton, 

 (2013) 
(internal quotations and citation omitted). Under 

, federal district courts 

“shall have original jurisdiction of all civil actions arising under the Constitution, laws, or 
treaties of the United States.” To determine whether a claim “arises under” federal law, 
federal courts apply the “well-pleaded complaint” rule. Great Lakes Gas Transmission Ltd. 
P’ship v. Essar Steel Minn. LLC, 

 (8th Cir. 2016). This rule “provides 
that federal jurisdiction exists only when a federal question is presented on the face of the 

plaintiff's properly pleaded complaint.” 

 (quoting Caterpillar Inc. v. Williams, 

 The parties debate whether the TLOA provides a private right of action. However, 
since the Plaintiffs have not plead any cause of action under the TLOA, the Court declines 
to address this issue.                                                    
386,  392 (1987)).  “Federal  question  jurisdiction  exists  if  the  well-pleaded  complaint 
establishes either that federal law creates the cause of action or that the plaintiff’s right to 

relief necessarily depends on resolution of a substantial question of federal law.” 

 
(quoting Williams v. Ragnone, 

 (8th Cir. 1998)).         
   It is well established that questions of federal common law can serve as a basis for 
the exercise of federal question subject matter jurisdiction under § 1331. Illinois v. City of 
Milwaukee, 

 (1972); see Nat’l Farmers Union Ins. Cos. v. Crow Tribe of 
Indians, 

 (1985). Indeed, in the context of federal Indian law, federal 

courts apply federal common law “as a necessary expedient when Congress has not spoken 
to a particular issue.” United States v. Lara, 

 (2004) (discussing County 
of  Oneida  v. Oneida  Indian  Nation  of  N.Y.,  

  (1985)) (internal 
quotations and citations omitted) (emphasis in original).                 
   Federal courts have often treated the scope of a tribe’s inherent sovereign authority 

as a matter of federal common law. See Lara, 

; Oliphant v. Suquamish 
Indian Tribe, 

 (1978); United States v. Terry, 

 
(8th Cir. 2005) (citing Strate v. A-1 Contrs., 

, 456 n.11 (1997); Duro v. Reina, 

 (1990)); see also Snow v. Quinault Indian Nation, 

 (9th Cir. 1983) (“Increasingly, the legal boundaries of tribal sovereignty are being 

defined  by  case  law.”);  1  Cohen’s  Handbook  of  Federal  Indian  Law  § 7.04  (2019) 
(“Federal  question  jurisdiction  …  extends  to  claims  based  on  federal  common  law, 
including  cases  involving  …  challenges  to  the  exercise  of  state  authority  in  Indian 
country.”); id. § 7.04 n.9 (collecting cases).                            
   Consistent with the above authority, the Ninth Circuit has specifically held that the 
scope of a tribe’s inherent sovereign law enforcement authority is a matter of federal 

common law. See Bishop Paiute Tribe v. Inyo Cnty., 

 (9th Cir. 
2017). In that case, the Bishop Paiute Tribe brought a declaratory judgment action against 
a county, a sheriff, and a district attorney, seeking, inter alia, a declaration that the Tribe 
had “the authority on its Reservation to stop, restrain, investigate violations of tribal, state 
and  federal  law,  detain,  and  transport  or  deliver a  non-Indian  violator  to  the proper 
authorities.” 

. The Ninth Circuit held that it had subject matter jurisdiction under 

§ 1331 because the Tribe “allege[d] that federal common law grants the Tribe the authority 
to ‘investigate violations of tribal, state, and federal law, detain, and transport or deliver a 
non-Indian violator to the proper authorities’” and that the “[t]he Defendants’ arrest and 
charging of [a tribal officer]” allegedly violated such federal common law. Id. at 1152. 
   Here,  Plaintiffs  similarly  allege  that  the  scope  of  the  Band’s  sovereign  law 

enforcement authority is defined by federal common law, hence raising a federal question 
sufficient to confer subject matter jurisdiction on this Court. Specifically, Plaintiffs allege 
that, “[a]s a matter of federal common law, the Band possesses inherent sovereign authority 
to establish a police force and to authorize Band police officers to investigate violations of 
federal, state and tribal law within the Reservation.” (Compl. [Doc. No. 1] ¶ H.) Plaintiffs 

further allege that, “[a]lso as a matter of federal common law, the Band possesses inherent 
sovereign authority to authorize its police officers to apprehend suspects and turn them 
over  to  jurisdictions  with  criminal  prosecutorial  authority.”  (Id.)  In  support  of  their 
allegations that Defendants have interfered with their sovereign law enforcement authority, 
Plaintiffs cite to the County Attorney’s threats of prosecution and arrest against Band 
officers as well as the County’s instructions to the Sheriff’s deputies not to arrest suspects 

apprehended by Band police officers. (See id. ¶¶ M-Q.) Accordingly, Plaintiffs have raised 
issues of federal common law on the face of their well-pleaded Complaint. As a result, they 
have adequately pleaded a federal question over which this Court has subject matter 
jurisdiction under § 1331.                                                
   Defendants rely primarily on the decision of the Eighth Circuit in Longie v. Spirit 
Lake Tribe, 

 (8th Cir. 2005), to support their claim that the issues raised in 

this case are matters of tribal and/or state law, not federal law. (Ind. Defs.’ Mem. Summ. 
J. at 19.) However, Longie is inapposite. It involved a disputed land transfer between a 
tribe and a member of that tribe. Longie, 

. The resolution of that dispute 
turned on whether there was a contract or other legal basis to force the tribe to effectuate 
the transfer under tribal law. 

 Unlike the disputed land transfer in Longie between the 

tribe and its member that raises issues under tribal law, the instant case raises issues of 
sovereign authority as between the Band and the County under federal common law. In 
fact, the Eighth Circuit made that very distinction in Longie when it described the United 
States Supreme Court’s decision in Nat’l Farmers Union Ins. Cos. as “finding jurisdiction 
under  section  1331  because  federal  common  law  establishes  the  limits  of  tribal 

sovereignty.” 

 at 590 (citing Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 

 (1985)).                                                
   Moreover, Walsh and Lorge’s argument that Congress has already acted in the area 
of tribal law enforcement authority by enacting the TLOA, thus precluding the Court from 
applying federal common law, is unavailing. While congressional legislation can displace 
federal common law under certain circumstances, “[t]he test for whether congressional 

legislation excludes the declaration of federal common law is simply whether the statute 
‘speak[s] directly to [the] question’ at issue.” Am. Elec. Power Co. v. Connecticut, 

, 423-24 (2011). Importantly, the TLOA does not speak to the scope of the Band’s 
sovereign law enforcement authority. Rather, it creates a federal program through which 
certain tribal officers may assist federal authorities in the enforcement of federal criminal 
law in Indian country. See 

. Accordingly, Congress has not displaced 

federal common law that serves to define the scope of a tribe’s sovereign law enforcement 
authority.                                                                
   Plaintiffs have raised issues of federal common law on the face of their well-pleaded 
Complaint, sufficient to confer federal question subject matter jurisdiction on this Court as 
to each of Plaintiffs’ claims.                                            

        C. Justiciability                                               
   Next,  the  Court  considers  Plaintiffs’  motion  for  summary  judgment  on  three 
threshold justiciability doctrines: standing, ripeness, and mootness. According to Plaintiffs, 
the record evidence establishes that they have standing and that their claims are ripe and 
not moot. The Court considers each of these issues in turn.               

               1.  Standing                                             
   Article III of the Constitution limits the jurisdiction of federal courts to certain 
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “One element of the case-or-
controversy requirement is that plaintiffs must establish that they have standing to sue.” 
Clapper  v.  Amnesty  Int’l U.S.A.,  

  (2013).  To  establish  Article  III 
standing,  a  plaintiff  must  show—as  an  “irreducible  constitutional  minimum”—the 

existence of three elements. Lujan v. Defenders of Wildlife, 

 (1992). First, 
there must be an “injury in fact.” 

 Second, “there must be a causal connection between 
the injury and the conduct complained of,” such that the injury is “fairly trace[able] to the 
challenged action of the defendant.” 

 Third, “it must be likely, as opposed to merely 
speculative, that the injury will be redressed by a favorable decision.” 

 (quotations 
and  citation  omitted).  Standing  “in  no  way  depends  on  the  merits  of  the  plaintiffs’ 

contention that particular conduct is illegal.” Warth v. Seldin, 

 (1975). 
   First, the Court considers whether Plaintiffs have suffered an injury in fact. Plaintiffs 
allege that they have suffered several related injuries in fact that establish standing: (1) 
interference with and infringement of the Band’s sovereign law enforcement authority; (2) 
resulting  injuries  to  Plaintiffs  Rice  and  Naumann’s  abilities  to  practice  their  chosen 

professions; (3) harm to morale causing several officers to resign; and (4) a resulting 
decline in effective law enforcement and public safety. (Pls.’ Mem. in Supp. of Mot. for 
Partial Summ. J. (“Pls.’ Mem. Summ. J.”) [Doc. No. 148] at 27-32.) Walsh and Lorge 
argue, to the contrary, that none of these injuries are sufficient to confer standing. (Walsh 
and Lorge Mem. in Opp’n to Mot. for Partial Summ. J. (“Ind. Defs.’ Opp’n Summ. J.”) 

[Doc. No. 176] at 29-45.)                                                 
   “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion 
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, 
not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 

 (2016) 
(quoting Lujan, 

). Importantly, courts have long recognized that tribes have 
legally protected rights in their sovereignty and, accordingly, that infringement of those 

rights confers standing. See Moe v. Confederated Salish & Kootenai Tribes of Flathead 
Reservation, 

, 468 n.7 (1976) (a tribe’s “discrete claim of injury” to “tribal 
self-government” can “confer standing” in a case involving a state’s imposition of taxes); 
Mashantucket Pequot Tribe v. Town of Ledyard, 

 (2d Cir. 2013) (“actual 
infringements on a tribe’s sovereignty constitute a concrete injury sufficient to confer 
standing”); Quapaw Tribe of Okla. v. Blue Tee Corp., 

 (N.D. 

Okla. 2009) (“Indian tribes, like states and other governmental entities, have standing to 
sue to protect sovereign or quasi-sovereign interests.”). Indeed,  a tribe has a legally 
protected interest in exercising its inherent sovereign law enforcement authority. Bishop 
Paiute Tribe v. Inyo County, 

 (9th Cir. 2017); see also Confederated 
Tribes & Bands of the Yakama Nation v. Yakima Cnty., 

 (9th Cir. 2020). 

In Bishop Paiute Tribe, for example, the Ninth Circuit found that a tribe has a legally 
protected interest in its “inherent sovereign authority to restrain, detain, and deliver to local 
authorities a non-Indian on tribal lands that is in violation of both tribal and state law.” 

. Consistent with this authority, the Court finds that the Band has a legally 
protected interest in exercising its inherent sovereign law enforcement authority.  

   As discussed earlier, the evidence in the record reveals numerous actual, concrete, 
and particularized incidents in which the Band’s police officers have been restricted from 
carrying out their law enforcement duties pursuant to the Opinion and Protocol. The 
County concedes as much but argues that it is justified in doing so and challenges the extent 
and scope of the Band’s sovereign law enforcement authority. The resolution of this issue 
is for another day. For purposes of Article III standing, however, those injuries in fact are 

actual, concrete, and particularized and therefore confer standing on the Band to challenge 
the County’s conduct.                                                     
   Second, the Court considers whether Plaintiffs’ injuries are fairly traceable to the 
challenged actions of Defendants in issuing and enforcing the Opinion and Protocol. 
“When government action or inaction is challenged by a party who is a target or object of 
that action, as in this case, ‘there is ordinarily little question that the action or inaction has 

caused him injury.’” Minn. Citizens Concerned for Life v. FEC, 

 (8th 
Cir. 1997) (quoting Lujan, 

).                           
   Plaintiffs argue that their injuries are fairly traceable to Defendants’ conduct for 
three reasons. First, they argue that the evidence of record is clear that compliance with the 
Opinion and Protocol, despite being titled as such, was mandatory. (Pls.’ Mem. Summ. J. 

at 32.) Second, Plaintiffs argue that Walsh clearly communicated to the Band police 
department that violations of the Opinion and Protocol could result in criminal and/or civil 
liability. (Id.) Finally, Plaintiffs note that Lindgren and his deputies repeatedly enforced 
the Opinion and Protocol. (Id.)                                           
   Walsh  and  Lorge  contend  that  Plaintiffs’  injuries  are  not  fairly  traceable  to 

Defendants’ actions for several reasons. First, they argue that the Opinion and Protocol did 
not actually restrict the Band’s law enforcement authority because the Band “chose to 
cooperate with” the Opinion and Protocol on the advice of its Solicitor General, Matha. 
(Ind. Defs.’ Opp’n Summ. J. at 33-34.) Second, they argue that Walsh never actually 
threatened a Band officer with prosecution and Lindgren never actually threatened a Band 
officer with arrest. (Id. at 34-35.)                                      

   The  Court  finds  that  Plaintiffs’  injuries  are  fairly  traceable  to  Defendants’ 
challenged conduct. The record is replete with evidence that County law enforcement and 
Band  officials  alike  understood  that  compliance  with  the  Opinion  and  Protocol  was 
mandatory. Walsh made clear that violations of the Opinion and Protocol could result in 
criminal and/or civil enforcement. (See, e.g., Baldwin Decl. [Doc. No. 150] Ex. N at 2.) 
And, as discussed earlier, Lindgren and his deputies enforced the Opinion and Protocol by 

actively interfering in the Band’s criminal investigations, even on trust lands. 
   The Court finds unavailing the Defendants’ argument that the Band’s decision to 
follow the Opinion and Protocol, on the advice of its Solicitor General, to avoid potential 
criminal and civil liability, is the actual and intervening cause of these injuries. That 
argument “wrongly equates injury ‘fairly traceable’ to the defendant with injury as to which 

the defendant’s actions are the very last step in the chain of causation.” Bennett v. Spear, 

 (1997). Indeed, “[a] plaintiff is not deprived of standing merely 
because he or she alleges a defendant’s actions were a contributing cause instead of the 
lone cause of the plaintiff’s injury.” City of Wyo. v. P&G, 

 
(D. Minn. 2016) (collecting cases).                                       

   Defendants’ arguments that they never actually threatened prosecution or arrest also 
miss the mark. First, Walsh made it clear that the Opinion and Protocol was to be enforced. 
Second, this lawsuit does not seek tort damages for prosecution or arrest under the Opinion 
and Protocol. Rather, it seeks a declaratory judgment that the Band’s sovereign authority 
has been infringed. The particularized injury that confers standing in this case is that very 
interference with the Band’s sovereign law enforcement authority. Accordingly, the Court 

finds that Plaintiffs’ injuries are “fairly traceable” to Defendants’ alleged unlawful conduct. 
   Finally, in order to confer standing, the Court must find that it will be likely that the 
injury will be redressed by a favorable decision.  In this case, the declaratory and injunctive 
relief sought is specifically designed to do just that—to recognize and restore the Band’s 
sovereign law enforcement authority.                                      
   Accordingly, the Court finds that Plaintiffs have met their burden of establishing 

standing to pursue these claims.                                          
               2.   Ripeness                                            
   Next, Plaintiffs seek summary judgment on the issue of ripeness. Whether a claim 
is ripe depends on “the fitness of the issues for judicial decision and the hardship to the 
parties of withholding court consideration.” Public Water Supply Dist. No. 10 v. City of 

Peculiar, 

 (8th Cir. 2003) (quoting Abbott Labs. v. Gardner, 

 (1967)). A plaintiff must satisfy both elements “at least to a minimal degree.” 

 
(citing Nebraska Pub. Power Dist. v. MidAmerican Energy Co., 

 (8th 
Cir. 2000)). Under the “fitness for judicial decision” prong of the analysis, whether a case 
is fit “depends on whether it would benefit from further factual development.” Id. at 573. 

A case “is more likely to be ripe if it poses a purely legal question and is not contingent on 
future possibilities.” Id. Under the hardship prong, the plaintiff must have “sustained or is 
immediately in danger of sustaining some direct injury as the result of the challenged” 
conduct. Id. (quoting O’Shea v. Littleton, 

 (1974)).     
   Plaintiffs contend that their claims are ripe because the mandates of the Opinion and 
Protocol, as enforced by the County and the Sheriff, have repeatedly infringed on their 

sovereign law enforcement authority. (Pls.’ Mem. Summ. J. at 35.) In response, Defendants 
argue that the Band has not in fact suffered a cognizable injury. (Ind. Defs.’ Opp’n Summ. 
J. at 46-51.)                                                             
   Plaintiffs satisfy both prongs of the ripeness analysis. This case is clearly fit for 
judicial decision. And under the “hardship prong,” Plaintiffs have presented a record with 
sufficient  evidence  that  they  have  sustained  a  direct  injury  to  their  sovereign  law 

enforcement authority as a result of the challenged conduct.              
               3.   Mootness                                            
   Finally, Plaintiffs move for summary judgment on the issue of mootness, contending 
that the 2018 Agreement, which temporarily granted the Band the same law enforcement 
powers that it possessed before the County revoked the 2008 Agreement, does not moot 

this case. A case can become moot by a party’s voluntary cessation of the challenged 
conduct if it is “absolutely clear that the allegedly wrongful behavior could not reasonably 
be expected to recur.” Wright v. RL Liquor, 

 (8th Cir. 2018) (quoting 
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

 (2000)). 
The party asserting that a case is moot bears a “heavy burden of persuading the court that 

the challenged conduct cannot reasonably be expected to start up again.” Friends of the 
Earth, 

 (internal quotations and citation omitted).        
   Defendants fail to meet this burden. If this case is dismissed, on mootness grounds, 
the 2018 Agreement will, by its very terms, terminate, and it is highly probable that the 
parties will continue to dispute the extent of the boundaries of the Reservation and the 
extent of the Band’s sovereign law enforcement authority. It is certainly not “absolutely 

clear that the allegedly wrongful behavior could not reasonably be expected to recur.” 
Friends of the Earth, 

 (citation omitted).                 
        D. Walsh and Lorge’s Defenses of Immunity                       
   Next, the Court considers Defendants Walsh’s and Lorge’s defenses of immunity 
from suit. Specifically, they argue: (1) that the Tenth Amendment bars this action because 
Plaintiffs unlawfully seek to control Walsh’s prosecutorial discretion; (2) that Younger 

abstention is appropriate and principles of federalism and comity preclude the Court from 
awarding injunctive relief; (3) that the Eleventh Amendment immunizes Walsh and Lorge 
from this suit; and (4) that absolute prosecutorial immunity insulates Walsh and Lorge from 
this suit. (See Ind. Defs.’ Mem. Summ. J. at 31-46.) The Court considers each of these 
arguments in turn.                                                        

               1.  Tenth Amendment and Prosecutorial Discretion         
   The gravamen of Defendants’ claims of immunity under the Tenth Amendment rest 
on their prosecutorial discretion. Walsh and Lorge argue that Plaintiffs seek to interfere 
with that discretion and that Plaintiffs improperly ask this Court to review their charging 
decisions.  (Ind.  Defs.’  Mem.  Summ.  J.  at  31-36.)  Plaintiffs  respond that  Defendants 

fundamentally misunderstand their claims. Plaintiffs argue that they do not seek to interfere 
with any charging decision. (Pls.’ Opp’n Summ. J. at 25.) Rather, they seek clarity as to 
their sovereign law enforcement authority and they ask for an order preventing Walsh and 
Lorge from interfering with that authority. (Id.)                         
   The Court is not aware of any authority, nor do Defendants cite any authority, for 
the  proposition  that  a  judicial  declaration  of  the  scope  of  a  tribe’s  sovereign  law 

enforcement authority or a judicial order prohibiting interference with that authority runs 
afoul of the Tenth Amendment.                                             
   It is well established that the Tenth Amendment does not foreclose federal courts 
from preventing state (or local) officials from infringing upon rights secured by federal 
law. See Prairie Band Potawatomi Nation v. Wagnon, 

 (10th Cir. 
2007); Mille Lacs Band of Chippewa Indians v. Minnesota, 

, 928 n.44 (8th 

Cir. 1997), aff’d, 

 (1999). For instance, when the Mille Lacs Band sought to 
prevent Minnesota officials from interfering with the Band’s treaty-based rights to hunt, 
fish, and gather, the Eighth Circuit rejected a Tenth Amendment defense because the “case 
[was] about state law infringing on rights guaranteed by federal law, and there is no 
question that federal courts have the power to order state officials to comply with federal 

law.” Mille Lacs Band, 

 n.44 (citations omitted). Accordingly, Walsh and 
Lorge’s defense of immunity based on their prosecutorial discretion under the Tenth 
Amendment fails.                                                          
               2.   Younger Abstention and Principles of Federalism and 
                    Comity                                              
   Walsh and Lorge urge the Court to dismiss them from this case under the Younger 
abstention doctrine, and they contend that the Court cannot issue an injunction under the 

principles of federalism articulated in Rizzo v. Goode, 

 (1976), and O’Shea v. 
Littleton, 

 (1974).                                           
   The Younger abstention doctrine arose out of principles of comity articulated by the 
United States Supreme Court in Younger v. Harris, 

 (1971). Under that 

doctrine, federal courts must “abstain from taking jurisdiction over federal constitutional 
claims that involve or call into question ongoing state proceedings.” Diamond “D” Const. 
Corp. v. McGowan, 

, 198 (2d Cir. 2002) (citing Younger, 

). 
Specifically,  the  Court  is  required  to  abstain  when:  “(1)  there  is  an  ongoing  state 
proceeding, (2) that implicates important state interests, and (3) that provides an adequate 
opportunity to raise any relevant federal questions.” Tony Alamo Christian Ministries v. 

Selig, 

 (8th Cir. 2012) (citing Plouffe v. Ligon, 

 
(8th Cir. 2010)). If these three conditions are satisfied, “principles of comity and federalism 
preclude federal actions seeking injunctive or declaratory relief.” 

   
   “Circumstances  fitting  within  the  Younger  doctrine  ...  are  ‘exceptional’;  they 
include  …  ‘state  criminal  prosecutions,’  ‘civil  enforcement  proceedings,’  and  ‘civil 

proceedings involving certain orders that are uniquely in furtherance of the state courts’ 
ability to perform their judicial functions.’” Sprint Communs., Inc. v. Jacobs, 

 (2013) (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 

 (1989)). Unless the case is deemed to be “exceptional,” however, the general rule 
applies—“the pendency of an action in [a] state court is no bar to proceedings concerning 

the same matter in the Federal court having jurisdiction.” Colo. River Water Conservation 
Dist. v. United States, 

 (1976) (quoting McClellan v. Carland, 

 (1910)).                                                         
   Defendants Walsh and Lorge argue that this Court must abstain from hearing this 
case under the Younger abstention doctrine. Specifically, they argue that the effect of 

injunctive relief in this case would be to improperly enjoin pending or threatened criminal 
prosecutions. (Ind. Defs.’ Mem. Summ. J. at 36-38.) Plaintiffs respond that there is no 
pending state court proceeding in which the Band’s sovereign law enforcement authority 
will be adjudicated, let alone one that qualifies as “exceptional” under Supreme Court 
precedent. They note that this Court has previously held that Younger abstention would be 
inappropriate in a case seeking a determination of the extent of the Band’s treaty rights 

relating to hunting, fishing, and gathering, even in the presence of pending criminal 
prosecutions. (Pls.’ Opp’n Summ. J. at 30 (citing Mille Lacs Band of Chippewa Indians v. 
Minn. Dep’t of Nat. Res., 

 (D. Minn. 1994))).      
   The Court agrees with the Plaintiffs. Younger abstention is simply not applicable in 
the  absence  of  both  a  state  and  federal  proceeding  considering  the  same  federal 

constitutional claims. Therefore, Defendants’ motion for summary judgment based on the 
Younger abstention doctrine is denied.                                    
   Next, Walsh and Lorge contend that federalism and comity principles under Rizzo 
v. Goode, 

 (1976), and O’Shea v. Littleton, 

 (1974), preclude the 
Court from granting injunctive relief in this case.                       

   In  Rizzo,  the  Supreme  Court  struck  down  an  injunction  revising  the  internal 
procedures of the Philadelphia police department based, in part, on principles of federalism. 

. The Court explained that “[w]here … the exercise of authority by state 
officials is attacked, federal courts must be constantly mindful of the special delicacy of 
the adjustment to be preserved between federal equitable power and State administration 
of its own law.” 

 (internal quotations and citations omitted). Further, the Court 

noted that such federalism concerns “have applicability where injunctive relief is sought 
…  against  those  in  charge  of  an  executive  branch  of  an  agency  of  state  or  local 
governments.” 

. In O’Shea, the Court struck down an injunction that sought to 
control and prevent specific events that might occur during state prosecutions, which, 
according  to  the  Court,  constituted  “an  ongoing  federal  audit  of  state  criminal 
proceedings.” 

.                                       

   Walsh and Lorge contend that an injunction in this case would run afoul of the 
principles of federalism and comity under Rizzo and O’Shea. They warn that the Court 
“could be forced to referee jurisdictional disputes between the Sheriff and tribal police” 
and “the injunction would require continuous supervision by the federal courts over the 
administration of state executive functions.” (Ind. Defs.’ Mem. Summ. J. at 36-38.) In 

response, Plaintiffs argue that this case does not raise federalism concerns under Rizzo and 
O’Shea because here, Plaintiffs seek only a declaration as to the scope of their sovereign 
law enforcement authority. (Pls.’ Opp’n Summ. J. at 31-35.) Nothing, they contend, in 
Rizzo or O’Shea bars such relief. (Id.)                                   
   The Court agrees that federalism principles under Rizzo and O’Shea do not preclude 

injunctive relief in this case. The Eighth Circuit has recognized that the federalism concerns 
in Rizzo only apply in “quite narrow circumstances.” Chambers v. Marsh, 

 (8th Cir. 1982), rev’d on other grounds, Marsh v. Chambers, 

 (1983). 
Unlike the injunction in Rizzo, Plaintiffs do not request an order “revising the internal 
procedures” of the County Attorney’s Office or Sheriff’s Office. Rather, Plaintiffs seek to 
enjoin interference with their sovereign law enforcement authority, a matter of federal law. 

Accordingly, although federal courts must be cognizant of federalism concerns under 
Rizzo, “they must, and do, retain power to enforce compliance with” federal law. Youakim 
v. Miller, 

 (7th Cir. 1977).                             
   Likewise, the federalism concerns articulated in O’Shea do not exist here. Unlike 
the plaintiffs in O’Shea, Plaintiffs do not seek an “ongoing federal audit” of any state 
proceedings. See 

. Rather, they ask this Court to define the extent of their 

sovereign  law  enforcement  authority  and enjoin  any  interference  with  that  authority.  
O’Shea has no applicability to this case.                                 
   Accordingly, to the extent that Defendants move for summary judgment based on 
principles of federalism and comity articulated in Rizzo and O’Shea, the motion is denied. 
               3.   Eleventh Amendment Immunity                         

   Next, Walsh and Lorge argue that the Eleventh Amendment renders them immune 
from Plaintiffs’ “official capacity” claims. Under the Eleventh Amendment, however, 
“only States and arms of the State possess immunity from suits authorized by federal law.” 
N.  Ins.  Co.  v.  Chatham  Cnty.,  

  (2006).  The  Supreme  Court  has 
consistently declined to extend Eleventh Amendment immunity to counties, even when 

“such entities exercise a ‘slice of state power.’” 

 at 193-94 (quoting Lake Country 
Estates,  Inc.  v.  Tahoe  Regional  Planning  Agency,  

  (1979));  see 
Greenwood v. Ross, 

 (8th Cir. 1985) (“It is settled that a suit against a 
county, a municipality, or other lesser governmental unit is not regarded as a suit against a 
state within the meaning of the Eleventh Amendment.” (quoting Gilliam v. City of Omaha, 

 (8th Cir. 1975))).                                    

   Whether an agency qualifies as an “arm of the state” under the Eleventh Amendment 
is a question of federal law that requires an analysis of the “provisions of state law that 
define the agency’s character.” Thomas v. St. Louis Bd. of Police Comm’rs, 

 (8th Cir. 2006) (quoting Regents of the Univ. of Cal. v. Doe, 

, 429 n.5 
(1997)). Specifically, courts must analyze “the agency’s degree of autonomy and control 
over its own affairs and, more importantly, whether a money judgment against the agency 

will be paid with state funds.” 

                                       
   Applying  the  analytical  framework  in  Thomas,  the  Court  finds  that  Eleventh 
Amendment immunity does not shield Walsh and Lorge from liability here, because they 
are not “arms of the state.” First, under Minnesota law, the County Attorney and Sheriff 
have wide autonomy and control over their affairs, wholly apart from the state. See Thomas, 

. For example, the County Attorney and the Sheriff are not subject to state 
control in the execution of their statutory  duties. 

 (establishing 
County  Attorney’s  duties);  

  § 387.03  (establishing  Sheriff’s  powers  and  duties). 
Moreover, the County Attorney and Sheriff are both elected positions. Id. § 382.01. And 
as elected county officials, the County Attorney and Sheriff can be removed through a 

petition containing the signatures of at least 25 percent of the number of people who voted 
in the last election for the county office that is the subject of the petition. Id. §§ 351.15-23; 
see id. § 351.14, subd. 5. Also, the County Board, not the state, sets and pays the salary of 
the County Attorney. Id. § 388.18, subd. 2, 5; id. § 388.22 subd. 1, 2. Likewise, the County 
Board sets the Sheriff’s salary. Id. § 387.20, subd. 2(a). Accordingly, the County Attorney 
and the Sheriff have significant autonomy and control over their affairs apart from the state. 

   Second,  and  “more  importantly,”  Thomas,  

,  Minnesota  law 
provides that a money judgment against Walsh and Lorge would be paid with county, not 
state, funds. Specifically, Minnesota law provides that “[w]hen a judgment is recovered 
against … a county officer, in an action … against the officer officially … the judgment 
shall be paid from funds in the [county] treasury,” and if such funds are unavailable in the 
county treasury, “the unpaid amount of the judgment shall be levied and collected as other 

county charges.” 

. Thus, although Plaintiffs do not seek a money 
judgment in this case, a money judgment against Walsh and Lorge would be paid by the 
county.                                                                   
   Walsh and Lorge note that several of their duties and powers arise from Minnesota 
state statutes, such as Walsh’s duty to enforce state water laws and Lorge’s power to pursue 

and apprehend persons suspected of criminal activity. (See Ind. Defs.’ Mem. Summ. J. at 
41.) However, this demonstrates that Walsh and Lorge exercise, at most, “slices of state 
power” but does not establish that they are acting as “arms of the state” under the Eighth 
Circuit’s framework in Thomas.                                            
   Accordingly, the Eleventh Amendment does not bar Plaintiffs’ “official capacity” 

claims against Walsh and Lorge.                                           
               4.   Absolute Prosecutorial Immunity                     
   Next, Walsh and Lorge seek dismissal from this case on the ground of absolute 
prosecutorial immunity. Absolute prosecutorial immunity protects prosecutors from suits 
for  damages  “arising  out  of  their  official  duties  in  initiating  and  pursuing  criminal 
prosecutions.” Saterdalen v. Spencer, 

 (8th Cir. 2013) (quoting Williams 

v. Hartje, 

 (8th Cir. 1987)). However, absolute prosecutorial immunity 
does not extend to “[a] prosecutor’s administrative duties and those investigatory functions 
that do not relate to an advocate’s preparation for the initiation of a prosecution or for 
judicial proceedings.” Stockley v. Joyce, 

 (8th Cir. 2020) (quoting 
Buckley v. Fitzsimmons, 

 (1993)). Specifically, “prosecutors are not 
entitled to absolute immunity for their actions in giving legal advice to the police,” because 

providing advice to the police is “not a function ‘closely associated with the judicial 
process.’” Buckley v. Fitzsimmons, 

 (1993) (quoting Burns v. Reed, 

 (1991)).                                                    
    According to Walsh, the conduct at issue in this case—his “alleged, threatened 
prosecution of” Plaintiffs—relates to his prosecutorial function, and thus he should be 

immune  from  suit.  (Ind.  Defs.’  Mem.  Summ.  J.  at  43-44.)  If  Walsh  is  entitled  to 
prosecutorial immunity, Defendants argue that Lorge is likewise entitled to immunity for 
following Walsh’s “legal advice.” (Id. at 46.) In response, Plaintiffs contend that Walsh’s 
and Lorge’s conduct at issue in this case does not fall within the scope of prosecutorial 
immunity and that, in any event, prosecutorial immunity cannot shield Walsh and Lorge 

because Plaintiffs do not seek money damages. (Pls.’ Opp’n Summ. J. at 44-47.) 
   As a threshold matter, although prosecutors enjoy absolute prosecutorial immunity 
from damages liability in certain circumstances, absolute prosecutorial immunity does not 
extend to actions for declaratory and injunctive relief. See Supreme Court v. Consumers 
Union of United States, 

 (1980) (“Prosecutors enjoy absolute immunity 
from damages liability, but they are natural targets for § 1983 injunctive suits” (citation 

omitted)); Heartland Acad. Cmty. Church v. Waddle, 

, 531 (8th Cir. 2005) 
(citing  and  quoting  Consumers  Union  for  the  proposition  that  “prosecutors,  as  state 
enforcement officers, are ‘natural targets for § 1983 injunctive suits’”); Bishop Paiute 
Tribe v. Inyo Cnty., No. 1:15-cv-00367-DAD-JLT, 

, at *21 
(E.D. Cal. Jan. 10, 2018) (holding that absolute prosecutorial immunity defense was 
unavailable in suit arising under federal common law and seeking only injunctive and 

declaratory relief).                                                      
   District Courts within the Eighth Circuit have also held that absolute prosecutorial 
immunity does not apply in an action for declaratory and injunctive relief. See, e.g., Richter 
v. Smith, No. C16-4098-LTS, 

, at *21 (N.D. Iowa Dec. 21, 
2018) (“absolute immunity bars recovery of money damages only”); Kurtenbach v. S.D. 

AG, 

, at *7 (D.S.D. Mar. 29, 2018) (“Immunities, i.e., 
absolute, prosecutorial or qualified immunity are not a bar to plaintiffs action for injunctive 
and declaratory relief under Section 1983.” (internal quotations and citations omitted)); 
Oglala Sioux Tribe v. Hunnik, 

 (D.S.D. 2014) (holding that 
State’s Attorney was “not entitled to prosecutorial immunity for prospective injunctive or 

declaratory relief” where plaintiff did not seek money damages); Hayden v. Nev. Cnty., No. 
08-4050, 

, at *11 (W.D. Ark. Mar. 6, 2009) (“absolute 
immunity does not protect a prosecutor from claims for injunctive relief”). Here, Plaintiffs 
do  not  seek  money  damages—they  seek  only  declaratory  and  injunctive  relief. 
Accordingly, Walsh and Lorge are not entitled to dismissal from this suit on the ground of 
absolute prosecutorial immunity.                                          

               5.   Walsh and Lorge’s Remaining Arguments               
   Walsh and Lorge raise several other arguments. First, they seek dismissal of the 
“official  capacity”  claims  asserted  against  them  on  the  ground  that  such  claims  are 
redundant. Second, they seek dismissal of the “individual capacity” claims asserted against 
them on the grounds that (1) equitable relief cannot be obtained against government 
officials in their individual capacities and (2) Plaintiffs have failed to state “individual 

capacity” claims against Walsh and Lorge because their allegations all involve official 
conduct. Third, they request a ruling that qualified immunity bars Plaintiffs from seeking 
costs and attorney’s fees from Walsh and Lorge in their individual capacities and that there 
is no statutory basis to award Plaintiffs costs and attorney’s fees against Walsh and Lorge 
in their individual capacities. (See Ind. Defs.’ Mem. Summ. J. at 46-55.) 

   The Court declines to consider these arguments at this time. The Third Amended 
Scheduling Order did not authorize Walsh and Lorge to seek summary judgment on these 
issues through an early dispositive motion. (Third Am. Pretrial Scheduling Order [Doc. 
No. 138] at 6; see Jt. Mot. [Doc. No. 132] at 1-2.) Walsh and Lorge may raise these 
arguments again, if and when it is appropriate to do so.                  

IV.  CONCLUSION                                                         
   Based on the foregoing, and the entire file and proceedings herein, IT IS HEREBY 
ORDERED that:                                                             
   1.  Plaintiffs’ Motion for Summary Judgment on Standing, Ripeness, and Mootness 
     [Doc. No. 146] is GRANTED;                                         

   2.  Defendants Walsh and Lorge’s Motion for Summary Judgment [Doc. No. 162] 
     is DENIED;                                                         
   3.  Defendants County of Mille Lacs, Walsh, and Lorge’s Motion to Strike and for 
     Sanctions [Doc. No. 182] is DENIED.                                
IT IS SO ORDERED.                                                         


Dated: December 21, 2020             s/Susan Richard Nelson               
                                   SUSAN RICHARD NELSON                 
                                   United States District Judge         

              UNITED STATES DISTRICT COURT                             
                  DISTRICT OF MINNESOTA                                


Mille Lacs Band of Ojibwe, a       Case No. 17-cv-5155 (SRN/LIB)         
federally recognized Indian Tribe;                                       
Sara Rice, in her official capacity                                      
as the Mille Lacs Band Chief of                                          
Police; and Derrick Naumann, in   MEMORANDUM OPINION AND                 
his official capacity as Sergeant of        ORDER                        
the Mille Lacs Police Department,                                        

        Plaintiffs,                                                    

v.                                                                       

County of Mille Lacs, Minnesota;                                         
Joseph Walsh, individually and in his                                    
official capacity as County Attorney                                     
for Mille Lacs County; and Don Lorge,                                    
individually and in his official                                         
capacity as Sheriff of Mille Lacs                                        
County,                                                                  

        Defendants.                                                    


Charles N. Nauen, Arielle Wagner, and David J. Zoll, Lockridge Grindal Nauen PLLP, 
100 Washington Ave. S., Ste. 2200, Minneapolis, MN 55401; Beth Ann Baldwin, Marc 
D. Slonim, and Wyatt Golding, Ziontz Chestnut, 2101 Fourth Ave., Ste. 1230, Seattle, 
WA 98121, for Plaintiffs                                                 

Courtney E. Carter and Randy V. Thompson, Nolan, Thompson, Leighton & Tataryn, 
PLC, 5001 American Blvd. W., Ste. 595, Bloomington, MN 55437, for Defendant 
County of Mille Lacs, Minnesota                                          

Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 S. 8th St., 
Ste. 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh             

Stacy L. Bettison, Brett D. Kelley, Douglas A. Kelley, Steven E. Wolter, Kelley, Wolter 
& Scott, P.A., 431 S. 7 St., Ste. 2530, Minneapolis, MN 55415, for Defendant Don 
Lorge.                                                                   
SUSAN RICHARD NELSON, United States District Judge                        
   This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment 
on Standing, Ripeness, and Mootness [Doc. No. 146], Defendants Joseph Walsh and 
Donald Lorge’s Motion for Summary Judgment [Doc. No. 162], and Defendants County 

of Mille Lacs, Walsh, and Lorge’s Motion to Strike and for Sanctions [Doc. No. 182]. For 
the  reasons  set  forth  below,  Plaintiffs’  Motion  for  Summary  Judgment  on  Standing, 
Ripeness,  and  Mootness  is  GRANTED;  Defendants  Walsh  and  Lorge’s  Motion  for 
Summary Judgment is DENIED; and Defendants County of Mille Lacs, Walsh, and 
Lorge’s Motion to Strike and for Sanctions is DENIED.                     

I.   BACKGROUND                                                         
   This case involves important and complex issues regarding the boundaries of the 
Mille Lacs Indian Reservation and, consequently, the extent of the Mille Lacs Band’s 
sovereign law enforcement authority within those boundaries. The present motions before 
the Court, however, do not seek to resolve these issues at this time. Rather, the present 
motions address: (1) this Court’s subject matter jurisdiction; (2) threshold justiciability 

issues, including standing, ripeness, and mootness; and (3) certain defenses of immunity. 
Accordingly, the Court will limit its discussion of the facts to only those necessary to 
explain its rulings.                                                      
        A. The Parties and the Mille Lacs Indian Reservation            
   The  Plaintiffs  are  the  Mille  Lacs  Band  of  Ojibwe  (the  “Band”),  a  federally 

recognized Indian tribe; Sara Rice, the Chief of Police of the Band; and Derrick Naumann, 
a Sergeant in the Band’s Police Department (collectively, “Plaintiffs”). (Compl. [Doc. No. 
1]; see 

, 5464 (Jan. 30, 2020); Baldwin Decl. [Doc. No. 150] Ex. A at 7, 

Ex. B at 6, Ex. C at 6.) The Defendants are the County of Mille Lacs (the “County”); Joseph 
Walsh, the Mille Lacs County Attorney; and Don Lorge, the Mille Lacs County Sheriff 
(collectively, “Defendants”). (See Compl. [Doc. No. 1].) In March 2019, Magistrate Judge 
Brisbois substituted Lorge for Brent Lindgren, a former County Sheriff, after Lindgren left 
his position and Lorge became the new Sheriff. (Order on Stipulation [Doc. No. 63].) 
   Article 2 of the 1855 Treaty between the Minnesota Chippewa Tribe and the United 

States established the Mille Lacs Indian Reservation, which comprises about 61,000 acres 
of land. (

 (Feb. 22, 1855); Quist Decl. [Doc. No. 160] ¶ 3.) In Plaintiffs’ view, 
the  Reservation  established  by  the  1855  Treaty  has  never  been  diminished  or 
disestablished. (See generally Compl. [Doc. No. 1].) Within the Reservation, there are 
approximately 3,600 acres that the United States holds in trust for the benefit of the Band, 

the Minnesota Chippewa Tribe, or individual Band members. (Quist Decl. [Doc. No. 160] 
¶ 4.) The Band owns in fee simple about 6,000 acres of the Reservation, and individual 
Band members own in fee simple about 100 acres of the Reservation. (Id. ¶¶ 5-6.) In 
Defendants’ view, the Reservation established by the 1855 Treaty was diminished or 
disestablished  by  way  of  subsequent  federal  treaties,  statutes,  and  agreements.  (See 

generally County Answer [Doc. No. 17]; Walsh Answer [Doc. No. 18]; Lindgren Answer 
[Doc. No. 19].) Although the Court does not wade into this core issue today, it is important 
to recognize that this case rests on this boundary dispute.               
        B. The Opinion and Protocol                                     
   On June 21, 2016, the County terminated the 2008 law enforcement agreement 
(“2008 Agreement”) it had with the Band and County Sheriff. (Baldwin Decl. [Doc. No. 

150] Ex. H.) The 2008 Agreement allowed Band officers to exercise concurrent jurisdiction 
with the Mille Lacs County Sheriff’s Department to enforce Minnesota state law, as 
provided in 

. (Id.)                                   
   On July 18, 2016, County Attorney Walsh issued the “Mille Lacs County Attorney’s 
Office Opinion on the Mille Lacs Band’s Law Enforcement Authority.” (Baldwin Decl. 
[Doc. No. 150] Ex. I (hereafter, “Opinion”).) In general, the Opinion outlines Walsh’s 

views regarding the scope of the Band’s law enforcement authority after the termination of 
the 2008 Agreement. (Id.) The Opinion concludes, inter alia, that the Band’s “[i]nherent 
tribal jurisdiction is limited to ‘Indian Country,’” which “is limited to tribal trust lands.” 
(Id. at 14.) Moreover, the Opinion concludes that investigations conducted by Band officers 
outside Pine County are unlikely to be admissible in state court. (Id. at 8.) The Opinion 

explains that:                                                            
   As all investigations of state law violations must be completed by a peace 
   officer within his or her state law jurisdiction, either the Mille Lacs County 
   Sheriff’s  Office  or  the  police  department  of  a  municipality  must  take 
   possession of all evidence gathered regarding that investigation to ensure its 
   admissibility in state court.                                        
(Id. at 9.)                                                               
   The “Northern Mille Lacs County Protocol” further clarifies Walsh’s position on 
Band  officers’  sovereign  law  enforcement  authority  and  “is  intended  to  guide  law 
enforcement officers regarding the lawful authority of law enforcement officers” within 
the Reservation. (Baldwin Decl. [Doc. No. 150] Ex. J (hereafter, “Protocol”).) According 
to the Protocol, the Band’s “inherent tribal criminal authority doesn’t extend (1) outside of 

trust lands or (2) to non-members of the Mille Lacs Band.” (Id. (emphasis omitted).) The 
Protocol provides that Band officers “are peace officers of the State of Minnesota with state 
law enforcement jurisdiction within Pine County only.” (Id. (emphasis omitted).) Under 
the Protocol, in Mille Lacs County, Band officers have certain arrest powers, but “must 
turn over arrested persons without delay to a Mille Lacs County peace officer so an 
investigation admissible in state court may be conducted.” (Id. (emphasis omitted).)  

   Further,  the  Protocol  provides  that  Band  officers  “[m]ay  [n]ot  [l]awfully  … 
[c]onduct  investigations  regarding  violations  of  state  law  including  statements, 
investigative  stops,  traffic  stops,  and  gathering  evidence.”  (Id.  (emphasis  omitted).) 
Moreover,  the  Protocol  provides  that  Band  officers  “[m]ay  [n]ot  [l]awfully  … 
[i]mpersonate a state peace officer, obstruct justice, or engage in the unauthorized practice 

of a peace officer, primarily by interfering with investigations within Mille Lacs County.” 
(Id.) In a footnote, the Protocol clarifies that Band officers “may conduct investigations 
where they have tribal jurisdiction (e.g., civil/regulatory citations to Band members and 
investigations related to inherent tribal criminal authority).” (Id.) And the Protocol warns 
that “State Peace Officers [m]ay [n]ot [l]awfully … [a]uthorize or knowingly allow the 

unauthorized practice of a peace officer.” (Id.)                          
        C. Alleged Interference By Defendants with the Band’s Sovereign Law 
          Enforcement Authority In Response to the Opinion and Protocol 
   The record evidence makes clear that Walsh fully expected Band officers to comply 
with the Opinion and Protocol. The record is also replete with evidence that, pursuant to 

the Opinion and Protocol, County law enforcement officers repeatedly interfered with law 
enforcement measures undertaken by Band officers. In fact, Walsh testified that he never 
“suggested [compliance with the Protocol] was voluntary.” (Baldwin Decl. [Doc. No. 150] 
Ex. K, Walsh Dep. at 305.) In an email to the Band’s former Chief of Police Jared Rosati 
on July 25, 2016, Walsh stated he “trust[s] that [the Protocol] has been provided to all of 
your officers and that they have been directed to follow it.” (Id., Ex. M.) In an August 23, 

2016, email to Rosati, after quoting the Protocol, Walsh stated that a Band officer did not 
have  “inherent  tribal  criminal  authority”  to  investigate  a  non-Native  suspect  on  the 
Reservation. (Id., Ex. P at 5.) In an August 25, 2016, letter to Rosati, Walsh wrote that 
Band officers’ conduct in violation of the Opinion and Protocol “could … constitute 
obstruction of justice and the unauthorized practice of a law enforcement officer.” (Id., Ex. 

N at 2; see 

 Ex. K, Walsh Dep. at 297-98 (stating that Band officers’ violations of the 
Opinion and Protocol could constitute violations of state criminal law).)  
   There is no evidence in the record that compliance with the Opinion and Protocol 
was voluntary. In a September 20, 2016, letter to Band Police Officer Kintop, Walsh wrote 
that he “expect[s] all tribal police officers to follow the [Opinion and Protocol] for as long 

as [they are] in place.” (Id., Ex. O at 1.) He told Officer Kintop that “[i]f you wish for 
controlled substance offenders to be prosecuted in Minnesota District Court in the future, 
… please comply with the Opinion and Protocol as long as [they are] in effect to ensure 
that the investigations conducted will be admissible in state court.” (Id. at 2.) Kali Gardner, 
a former Assistant County Attorney under Walsh, testified that she understood that Walsh 
expected Band officers “to adhere to the prohibitions and the opinion in the [P]rotocol,” 

and that “other officers were advised that they could arrest tribal police officers if they” 
violated the Protocol. (Id., Ex. L, Gardner Dep. at 60.)                  
   After Walsh issued the Opinion and Protocol, then-Sheriff Lindgren “instructed 
[his] staff and deputies to follow the County Attorney’s Opinion and Protocol.” (Lindgren 
Decl. [Doc. No. 180] ¶ 3.) Indeed, Lindgren’s employees all received the Opinion and 
Protocol and, according to Lindgren, began to follow them. (Baldwin Decl. [Doc. No. 150] 

Ex. P at 2.) Further, the Sheriffs’ deputies monitored Band officers’ compliance with the 
Protocol and tracked violations. (See 

 Ex. U (email from County Sergeant Daniel Holada 
to Lindgren summarizing interactions with Band police over a weekend and listing alleged 
violations of the Protocol); Ex. V (email from Lindgren instructing Sheriff’s deputies to 
“continue to keep your direct supervisors apprised of day to day operations involving 

cooperation of Band Officers following County Attorney Opinion and Protocol”).) In a 
June 21, 2016, letter, Lindgren wrote that, when the 2008 Agreement was terminated, 
“previously dispatched calls for service to the … Band Police Department will be handled 
by the … County Sheriff’s Office.” (Id., Ex. W.)                          
   Lindgren made clear that the Opinion and Protocol would be enforced. In an August 

22, 2016, email, Lindgren told Band Chief of Police Rosati that the “Sheriff’s deputy in 
charge of the Sheriff’s office has the ultimate discretion to control any designated crime 
scene” and that Lindgren appreciated Rosati’s “willingness to undertake [a deputy’s] 
direction and control” on a particular evening. (Id., Ex. P at 6.) In an August 26, 2016, 
email,  Lindgren  directed  Sheriff’s  deputies  “to  complete  independent  investigations 
consistent with the … Opinion and Protocol” and advised that “Band Police are to notify 

[deputies] before any investigation takes place regarding evidence of criminal activity.” 
(Id., Ex. X.) Lindgren also stated that if Band officers are conducting a civil or regulatory 
stop of a Band member on trust lands, Band officers’ “role in any joint investigation is 
over” once the civil or regulatory stop is completed, “unless and until [Band officers] are 
given direction by [Sheriff’s deputies] to provide assistance.” (Id.) In a November 21, 2016, 
email, a Sheriff’s Captain told a Sheriff’s deputy that he must take a recorded statement 

from  a  Band  officer  “every  time  a  [B]and  officer  becomes  involved  in  a  criminal 
investigation and either handles evidence or collects information needed during a criminal 
investigation.” (Id., Ex. Y.)                                             
   Sheriff’s deputies at times took control of crime scenes from Band officers and 
repeated investigations that Band officers had completed. Ashley Burton, a former Band 

officer, described an encounter with a Sheriff’s deputy on August 24, 2016, after an arrest 
of a Band member. (A. Burton Decl. [Doc. No. 154] at ¶¶ 12-16.)1 She arrested a Band 


   1 Defendants move the Court to strike the declarations of Ashley Burton (formerly 
“Stavish”), Bradley Gadbois, and Scott Heidt, on the grounds that Plaintiffs violated Rules 
26(a)(1)(A)(i), 26(e)(1)(A), and 33(b) of the Federal Rules of Civil Procedure. Defendants 
seek to exclude consideration of these declarations on the grounds that the declarants’ 
identities were not disclosed in Plaintiffs’ Rule 26(a) disclosure or in any supplemental 
disclosure. Plaintiffs respond by noting that the identities of these declarants were in fact 
disclosed several times during discovery. (See Baldwin Decl. [Doc. No. 191] Exs. 1, 2; 
Kelley Decl. [Doc. No. 185] Ex. 2.) Moreover, Plaintiffs note that Defendants received 
notice of the incidents described in these declarations and the exhibits attached to the 
declarations in discovery.                                                
member on trust lands, found drugs and drug paraphernalia on the member, and planned to 
send  that  evidence  to  the  Band  Solicitor  General’s  office,  but  the  Sheriff’s  deputy 

demanded that she turn over the evidence, and she complied. (Id.) Moreover, on August 9, 
2016, Burton responded to a call involving a domestic dispute on trust lands. (Id. ¶¶ 8-11.) 
After Burton arrived on the scene, a Sheriff’s deputy arrived, informed Burton that she was 
a civilian, and requested a statement from her so that he could arrest the suspect. (Id.) 
Burton declined to give the deputy a statement, and the deputy allowed the suspect to leave. 
(Id.)                                                                     

   A current Band officer, Dusty Burton, stated in his declaration that, on September 
2, 2016, he was assisting Crow Wing County deputies with a vehicle pursuit that ended on 
trust lands. (D. Burton Decl. [Doc. No. 155] ¶¶ 8-10.) While at the scene, he began to 
interview a passenger in the suspect vehicle, who was providing information about the 
location of another person with a felony warrant. (Id.) In the middle of the interview, a 

Sheriff’s deputy arrived and directed the passenger away from Burton, leaving him unable 
to complete the investigation. (Id.) On November 20, 2016, after Burton responded to a 
call involving a recent death at a home on Band-owned fee land, a Sheriff’s deputy arrived 
on the scene and told Burton not to search anything and to leave the scene until Sheriff’s 
Office investigators arrived. (Id. ¶¶ 15-20.)                             




   The Court denies Defendants’ Motion to Strike. On a number of occasions, not only 
were the identities of these declarants disclosed to Defendants in discovery, evidence of 
these incidents was also disclosed.                                       
   A former Band officer, Scott Heidt, described a further incident on September 8, 
2016, when he and another Band officer were investigating a stabbing on trust lands. (Heidt 

Decl. [Doc. No. 159] ¶¶ 8-11.) During their investigation, they took a taped statement from 
a witness, but a Sheriff’s deputy asked the other Band officer to “hold off on taking the 
statement.” (Id.) Heidt allowed the other Band officer to finish taking his statement, and 
then the Sheriff’s deputy took his own taped statement. (Id.)             
   Plaintiff Sergeant Naumann testified about an incident that occurred during the 
revocation period2 when he and other Band officers initiated a traffic stop, located a 

Department of Corrections fugitive, removed noncompliant passengers from the vehicle, 
and found a firearm within the vehicle. (Baldwin Decl. [Doc. No. 150] Ex. Z, Naumann 
Dep. at 82.) While Band officers were searching the vehicle, a Sheriff’s deputy arrived and 
“was yelling at us telling us to stop searching the vehicle and basically getting in the way 
of my investigation, preventing me from conducting a thorough investigation.” (Id.) In a 

subsequent email on October 24, 2017 to then-Sheriff Lindgren, the Sheriff’s deputy 
involved stated that he “took control of the scene.” (Id., Ex. AA.)       
   Bradley Gadbois, a current Band investigator who worked as a Band officer in 2017, 
described an incident on September 29, 2017, when he investigated a car and suspect on 
the Reservation. (Gadbois Decl. [Doc. No. 158] ¶¶ 10-18.) After Gadbois searched the car 

and interviewed the driver, a Sheriff’s deputy arrived on the scene and conducted his own 


   2 The Court uses the term “revocation period” to refer to the period of time from the 
County’s termination of the 2008 Agreement until the time the Band, County, and Sheriff 
entered into the 2018 Agreement, discussed infra.                         
search and interview. (Id.) On another occasion, on November 3, 2017, Gadbois was 
investigating a parked vehicle containing a driver and a passenger, who was showing signs 

of an opioid overdose. (Id. ¶¶ 20-25.) After Gadbois administered Narcan to the passenger, 
which revived him, two Sheriff’s deputies arrived on the scene, and a methamphetamine 
pipe was found in the vehicle. (Id.) Gadbois wanted to conduct a drug investigation of the 
vehicle, but was prevented from doing so under the Protocol without the cooperation of the 
Sheriff’s deputies. (Id.) The deputies neither arrested the driver nor took custody of the 
vehicle. (Id.)                                                            

   James  West,  the  Band’s  Deputy  Police  Chief,  testified  that  “there  was  an 
interruption in [Band] officers’ investigations” and that “[w]hen [Band officers] show up 
on a scene, domestic or whatever it might be, they start talking to a victim or holding a 
suspect, and a sheriff’s deputy arrives and butt right in and take over the interview, or take 
possession of somebody that’s technically not under arrest.” (Baldwin Decl. [Doc. No. 150] 

Ex. BB, West Dep. at 47-48.) Moreover, Band Sergeant Naumann testified that Band 
officers “had to just stand by and let [Sheriff’s deputies] take over our scene.” (Id., Ex. Z, 
Naumann Dep. at 94.)                                                      
   At the Band’s Rule 30(b)(6) deposition, Michael Dieter, a Sergeant in the Band’s 
Police  Department,  testified  that  “[o]ften  times  county  deputies  would  try  to  take 

statements from officers as witnesses rather than just relying on our reports. They would 
often take multiple statements. If we took a statement from a witness, they might take a 
second statement from the same witness.” (Id., Ex. CC, Rule 30(b)(6) Band Dep. at 182-
83.) Former Assistant County Attorney Gardner testified that Band police “were treated as 
witnesses and not as law enforcement officers” and that Sheriff’s “deputies were instructed 
to take statements from” Band officers. (Id., Ex. L, Gardner Dep. at 42, 61-62.) 

        D. The Band’s Compliance with the Opinion and Protocol          
   Todd  Matha,  as  the  Band’s  Solicitor  General,  supervised  the  Band’s  police 
department. (Baldwin  Decl. [Doc. No. 150] Ex. DD, Matha Dep. at 205-09.) Matha 
disagreed with Walsh’s mandates, as set forth in the Opinion and Protocol, but Matha 
nonetheless directed Band officers to follow them, out of fear that Band officers would 
face criminal and civil penalties if they disobeyed them. (Baldwin Decl. [Doc. No. 150] 

Ex. DD, Matha Dep. at 205.) Matha also wanted to avoid disputes between the Band and 
the County that might serve to undermine law enforcement in the area. (Id. at 205-09.) 
Similarly, Band Chief of Police Rosati directed Band officers to follow the Opinion and 
Protocol in light of the potential imposition of criminal and civil penalties on them and to 
avoid endangering the prosecutions of any suspects that Band officers investigated. (Id., 

Ex. EE, Rosati Dep. at 92-93, 102, 116-17, 211.)                          
   After Rice became the Band’s Police Chief, she continued to ensure that Band 
officers followed the Protocol because she did not want to jeopardize the career of any 
Band officer and feared that Band officers would “go to jail.” (Id., Ex. GG, Rice Dep. at 
150-51.) Rice was especially concerned about the restrictions that the Protocol imposed on 

Band officers’ ability to use force: “What if we were to have to arrest somebody or 
something happened, or use of force issue, or even deadly force? That was my concern. So 
I just didn’t—we just made sure we abided by [the Protocol].” (Id. at 151.) Band Sergeant 
Craig Nguyen testified to a similar concern: “There are circumstances when it comes to 
officers’ personal safety when officers need to use a fire[arm], not to discharge it but to 
gain control of certain subjects involving crimes that are high violence in nature involving 

weapons, drugs, gangs, so on and so forth. [The Protocol] restrict[s] us not being able to 
do that.” (Id., Ex. HH, Nguyen Dep. at 46.)                               
   Rice testified that, although County Sheriff Lindgren told her informally that Band 
officers would not be arrested or prosecuted, she did not trust his assurances because he 
was committed to following the mandates of the Protocol. (Id., Ex. GG, Rice Dep. at 157, 
204-05.) Rice acknowledged that no one had yet been arrested but she believed that was so 

“[b]ecause we followed the [P]rotocol.” (Id. at 205.) Assistant County Attorney Gardner 
testified that County “officers were advised that they could arrest tribal police officers if 
they” violated the Protocol. (Id., Ex. L, Gardner Dep. at 60.) The Band’s Deputy Police 
Chief West testified that “[t]here was a lot of fear within the officers regarding getting 
arrested for impersonating officers” under the Protocol. (Id., Ex. BB, West Dep. at 37-38.) 

West confirmed that “[o]fficers followed the [P]rotocol.” (Id. at 42.)    
   According to Band Sergeant Naumann, “[the Protocol] caused [Band officers] to 
not be able to effectively do [their] jobs because guys were afraid to proactively patrol and 
initiate traffic stops.” (Id., Ex. Z, Naumann Dep. at 92.) Naumann elaborated that “your 
career is potentially in jeopardy if someone decides to prosecute you for doing your job 

that you’ve done for years, and we weren’t able to do our jobs.” (Id.) Accordingly, 
Naumann concluded that “[b]ased on the Northern Protocol trying to restrict our ability to 
do our job … the only thing that we felt safe without being charged with a crime or 
prosecuted for doing our jobs was arrest people on warrants.” (Id. at 84-86.) 
   In a December 2016 letter to the United States Attorney’s Office in Minnesota and 
the Department of Justice in D.C., Walsh wrote that “the Mille Lacs County Sheriff’s 

Office has taken on all state law enforcement services provided in the entirety of Mille 
Lacs County” and that a “tenuous status quo has been followed by the Mille Lacs County 
Sheriff’s Office and the Mille Lacs Band Police Department based on my Opinion and 
Protocol.” (Id., Ex. JJ; see 

 Ex. KK, Walsh Dep. at 378.) In his deposition, Walsh 
conceded that the letter was not in fact entirely accurate, notably failing to advise federal 
officials that the County Sheriff’s Office had taken on the role of investigating all violations 

of state law on trust lands and had assumed responsibility for responding to all calls and 
investigating all violations of state law on non-trust lands. (Baldwin Decl. [Doc. No. 150] 
Ex. KK, Walsh Dep. at 377-78.)                                            
        E. The Decline in Morale in the Mille Lacs Band Police Department and 
          the Resignations of Several Band Officers                     
   Band Solicitor General Matha testified that “[Band officers] took offense at … being 
relegated to essentially witnesses at a scene that had no more authority in relation to a 

criminal action than would often times just a bystander,” and that this contributed to “a 
decrease in morale and just this lack of understanding as to how it was that they were to 
perform their job.” (Baldwin Decl. [Doc. No. 150] Ex. DD, Matha Dep. at 201-02.) 
   According to Naumann, the Opinion “in not so many words [said Walsh] was going 
to  threaten  to  arrest  and  prosecute  our  officers  for  doing  our  jobs. It  was  insulting, 

demeaning, threatening …. [and] terrible.” (Id., Ex. Z, Naumann Dep. at 20.) He testified 
that  Band  officers  “were  deterred  from  protecting  our  community,”  “[could]n’t  do 
anything,” and were “[n]othing more than glorified security guards.” (Id. at 92, 98.) 
Moreover, he testified that during the revocation period “[w]e lost officers because of not 

having a cooperative agreement. We had officers leaving. Morale went down. It was pretty 
terrible for the most part. It was the worst two and a half years of law enforcement in my 
career.” (Id. at 101.) Rice testified that she was injured “[p]rofessionally because of the 
Northern Protocol” and that the Protocol “deterred [her] from doing [her] job completely.” 
(Id., Ex. GG, Rice Dep. at 11-12, 187.)                                   
   Former Band Officer Dusty Burton stated that the Sheriff’s deputies’ interference 

with  his  investigations  “undermined  [his]  credibility  as  a  police  officer  within  the 
community  and  negatively  affected  my  morale  and  that  of  my  fellow  Tribal  Police 
officers.” (D. Burton Decl. [Doc. No. 155] ¶ 21.) Similarly, Band Officer Gadbois noted 
that the Sheriff’s Office’s practice of repeating investigations completed by Band officers 
in front of criminal suspects “undermined the credibility, authority and morale” of Band 

officers. (Gadbois Decl. [Doc. No. 158] ¶ 19.)                            
   Several Band officers consequently resigned from their jobs. Heidt explained that 
“[o]ne of the reasons why I left the Tribal Police Department was because of the restrictions 
that the County Attorney’s Protocol placed on me as a licensed peace officer.” (Heidt Decl. 
[Doc.  No.  159]  ¶ 13.)  Similarly,  Ashley  Burton  stated  she  “left  the  Tribal  Police 

Department because of the restrictions that the County Attorney’s Northern Protocol placed 
on me as a licensed peace officer. I wanted to exercise my full authority as a Tribal Police 
Officer and serve the Mille Lacs Reservation communities to the fullest.” (A. Burton Decl. 
[Doc. No. 154] ¶ 25.) Gardner testified that “[s]everal [Band] officers left their department. 
I know of at least a handful that went to completely different agencies because they were 
not allowed to be police officers, and that’s what they wanted their career to be.” (Baldwin 

Decl. [Doc. No. 150] Ex. L, Gardner Dep. at 46-47.)                       
        F.  Lack of County Law Enforcement Response to Criminal Activity on 
          the Reservation                                               
   Band Chief of Police Rosati testified that, after Walsh issued the Opinion and 
Protocol, “life as a patrol cop ceased to exist. We didn’t feel we had the authority to go out 
and do our jobs, like make arrests. Like if we rolled up on a DWI, we wouldn’t be able to 
make that arrest. Our protocol was to have the county come deal with it.” (Baldwin Decl. 
[Doc. No. 150] Ex. EE, Rosati Dep. at 101.) Rosati explained that “[o]nce … the criminal 

element on the reservation found out that we no longer had authority, they knew it. And 
they would blatantly say it to our officers, ‘You can’t even arrest me.’” (Id. at 103; see 
Gadbois Decl. [Doc. No. 158] ¶¶ 26-29 (describing encounter on March 21, 2018, where 
suspect refused to comply with Band officer’s instruction because, according to suspect, 
Band officer was “not a cop”).)                                           

   Rosati further testified that the termination of the 2008 Agreement made it more 
difficult for Band officers to address drug crimes and overdoses: “[t]he people know when 
you’re not making arrests or doing what we normally did, that word traveled pretty quick, 
so it made it pretty difficult for my officers to continue our normal course of action, as far 
as combatting those overdoses.” (Baldwin Decl. [Doc. No. 150] Ex. EE, Rosati Dep. at 

197.) He testified that Band officers “[m]ade every effort to attempt or tried to follow the 
[P]rotocol,” which “limit[ed] their ability to investigate crime on non-trust land” and 
“limit[ed] their ability to investigate crime on trust lands.” (Id. at 211.) 

   Band Chief of Police Rice testified that:                            
   A majority [of Band police reports] are overdoses and drug involvement 
   where officers are actually making traffic stops on the reservation, deputy 
   shows up, blatant paraphernalia, blatant drugs right in front of everybody, 
   they are not arresting them because they are on the phone with the county 
   attorney’s office and they are saying don’t do anything, if [Band officers] 
   started that investigation, let it go. So they would long form that complaint, 
   let people walk away who had significant amounts of drugs on them. … [I]t 
   was all up to whether it was this deputy, that deputy. Some would get along 
   with us, and some wouldn’t.                                          
(Id., Ex. GG, Rice Dep. at 176.)                                          
   Band  Sergeant  Nguyen  testified  that  Band  officers  “driving around  and  being 
present” was no longer a deterrent to criminal activity because people “knew we didn’t 
have law enforcement authority when they saw a tribal cop.” (Id., Ex. HH, Nguyen Dep. 
at 76.) And that, in Ngyuen’s view, “increased the drug availability, and people from out 
of town, people who we did not know came and with them they brought drugs, and the 
gang activity also increased.” (Id.)                                      
   Similarly, former Assistant County Attorney Gardner testified that Band officers’ 
“credibility amongst the community deteriorated very quickly, because the community 
members knew that they, [Band] officers, were not allowed to do anything.” (Id., Ex. L, 
Gardner Dep. at 46.)                                                      
   According to Rosati, after the County terminated the 2008 Agreement, he did not 
believe the Sheriff’s deputies stationed “within [the Band] community knew the people 
like [Band officers] knew our people.” (Id., Ex. EE, Rosati Dep. at 123.) He noted that 
Band officers “actually understand the family trees within the community.” (Id. at 213.) 

Naumann testified that “statements [were] being taken from victims twice and from people 
that aren’t familiar with the community that don’t know the community, the community 
members, and the family structure.” (Id., Ex. Z, Naumann Dep. at 100.)    
   In the view of former Assistant County Attorney Gardner, Band officers’ knowledge 
of and connections in the Band community were “absolutely important and priceless” from 
a law enforcement perspective. (Id., Ex. L, Gardner Dep. at 23-24; cf id. at 27 (explaining 

that some Sheriff’s deputies had some knowledge of the Band community, but they had 
less knowledge than Band officers).) According to Band member Colin Cash, Band officers 
“know the Band community and they care about the community. They also know who 
belongs in the community and who is an outsider. … When Sheriff’s deputies took over 
for Band police, they did not know the people or the area. It became free [rein] for people 

using drugs and committing crimes. … The Sheriff’s deputies didn’t know the drug houses 
or the dealers. It was an open market for drugs.” (Cash Decl. [Doc. No. 156] ¶¶ 8-9, 11.) 
   Several witnesses noted a decline in police work after the revocation of the 2008 
Agreement. Rosati testified that Band officers engaged in very proactive policing before 
the 2008 Agreement was revoked, but he did not observe Sheriff’s deputies engaging in 

proactive policing after the revocation. (Baldwin Decl. [Doc. No. 150] Ex. EE, Rosati Dep. 
at 213.) Gardner testified that “deputies, when they were on the north end during the 
revocation, did not proactively patrol the reservation. Instead, they waited at the north end 
sheriff’s station for a call to come in.” (Id., Ex. L, Gardner Dep. at 69.) According to 
Naumann, the Protocol “caused us to not be able to effectively do our jobs because guys 
were afraid to proactively patrol and initiate traffic stops,” and Sheriff’s deputies “weren’t 

conducting proactive patrols.” (Id., Ex. Z, Naumann Dep. at 92, 101.) During the Band’s 
Rule 30(b)(6) deposition, Band Sergeant Dieter testified that the Protocol deterred patrol 
officers “from wanting to go out and be proactive under the idea if they were proactive and 
violated the Northern Protocol that they could be arrested for it.” (Id., Ex. CC, Rule 
30(b)(6) Band Dep. at 210-11.)                                            
   After the termination of the 2008 Agreement, the Sheriff’s Office hired additional 

deputies. (Flaherty Decl. [Doc. No. 178] Ex. 15, Mott Dep. at 16-17; Lindgren Decl. [Doc. 
No. 180] ¶ 10.) Rice testified that, although the Sheriff’s Office hired more deputies during 
the  revocation  period,  “there  was  nothing  being  done”  because  “tribal  police  were 
proactive” while Sheriff’s deputies were “all reactive.” (Baldwin Decl. [Doc. No. 150] Ex. 
GG, Rice Dep. at 180-81.) Rice elaborated that the Reservation became a “police free zone” 

when “people saw the traffic stops and nothing happened. There [weren’t] any search 
warrants being executed on the reservation. There was police presence, but they knew we 
were limited. You had deputies running around telling them we’re not cops.” (Id. at 182.) 
        G. Impact on Public Safety                                      
   Wade Lennox, a State Corrections Officer who works with felony offenders on the 

Reservation, testified regarding the impact of the Opinion and Protocol on public safety. 
(See Baldwin Decl. [Doc. No. 150] Ex. SS, Lennox Dep.) Lennox testified that he saw 
Band officers “out interacting with the community members. It was clear that part of their 
mission work was to be available, regardless of the need.” (Id. at 17.) However, Lennox 
observed several changes that he noted in an April 4, 2017, email to Rice:  

   I can share with you things have gotten significantly worse here. When I 
   started working here many of the drug deals had been driven behind closed 
   doors. Chemical use, although abundant, was not visible in the public eye. I 
   am here every week, many times twice weekly. In the last several months I 
   have witnessed numerous drug deals and use right out in the open. Needles 
   on the road side is not an uncommon observation. In the past, it would be a 
   very rare occasion I would not see Tribal Officers out and about monitoring 
   these obscure areas, I would see them on foot working together, checking out 
   the various parts of the reservation likely only known to locals. I do not see 
   the same type of law enforcement taking place anymore and it has resulted 
   in a much less safe area.                                            
(Baldwin Decl. [Doc. No. 150] Ex. TT.) Former Assistant County Attorney Gardner 
testified that Lennox’s observations in this email were accurate. (Id., Ex. L, Gardner Dep. 
at 67-68.)                                                                
   In an October 10, 2017, email to Walsh, Lennox wrote that “there simply is not the 
law enforcement presence on the Reservation there had been and that has dramatically 
impacted our probationary work” and that he “see[s] County [Sheriff’s deputies] patrolling, 
but not even remotely close to what was being done.” (Id., Ex. UU.) According to Lennox, 
after the termination of the 2008 Agreement, “[t]he general perception from the offenders 
we were working with at the time was [kind of] free rein.” (Id., Ex. SS, Lennox Dep. at 
15.) “[T]here was a general sense that [the Reservation] became almost a safe haven [for 
drug trafficking].” (Id. at 27-28.)                                       
   In  November  2017,  then  United  States  Secretary  of  the  Interior,  Ryan  Zinke, 
traveled to the Reservation. (Dieter Decl. [Doc No. 157] ¶ 7.) Because of the high levels 
of drug trafficking, use, and overdoses on the Reservation, the Office of Justice Services 
in the Bureau of Indian Affairs (“BIA”) “temporarily assigned BIA Special Agents to 

conduct saturation patrols  and work  with Band  police officers  to  help  address these 
problems.”  (Id.)  The  BIA  Special  Agents  and  Band  officers  carried  out  joint  drug 
investigations  in  2018.  (Id.  ¶ 9.)  Band  officers  notified  Sheriff’s  deputies  of  these 
investigations before they occurred. (Id. ¶ 10.)                          
        H. Special Law Enforcement Commissions (“SLECs”)                
   On January 8, 2016, under the Tribal Law and Order Act of 2010 (“TLOA”), 

 Stat. 2258, the United States agreed to assume concurrent federal 
criminal jurisdiction over the Band’s Indian country, effective January 1, 2017. (Baldwin 
Decl. [Doc. No. 150] Ex. LL.) On December 20, 2016, the BIA and the Band entered into 
a Deputation Agreement, allowing the BIA to issue SLECs to qualified Band officers. (Id., 
Ex. MM.) The Deputation Agreement allowed Band officers who held SLECs, such as 

Naumann, to enforce federal law within the Band’s Indian country. (Id.; see 

 Ex. NN 
(Band officers’ SLEC cards), Ex. Z, Naumann Dep. at 38.)                  
   Walsh acknowledged that his view was that Band officers holding SLECs could not 
exercise SLEC authority on non-trust lands within the 1855 Treaty boundaries. (Baldwin 
Decl. [Doc. No. 150] Ex. KK, Walsh Dep. at 384-85.) In an email to a Band officer, Walsh 

explained that, although the Protocol predated the issuance of the SLECs, the Protocol 
remained in force and should be followed to avoid any challenges to jurisdiction. (Id., Ex. 
OO at 2-3.)                                                               
        I.  The 2018 Agreement                                          
   In September 2018, the Band, County, and then County Sheriff Lindgren entered 
into a “Mutual Aid/Cooperative Agreement.” (Baldwin Decl. [Doc. No. 150] Ex. AAA.) 

Under  this  Agreement,  on  a  temporary  basis,  the  parties  agreed  that  the  Band  has 
concurrent jurisdiction with the Sheriff under 

: (1) over all persons on 
trust lands; (2) over all Band members within the boundaries of the 1855 Treaty; and (3) 
over any person committing or attempting to commit a crime in the presence of a Band 
officer within the boundaries of the 1855 Treaty. (Id. ¶ 4(a).) However, the Agreement 
provides that:                                                            

   This Agreement shall automatically terminate ninety (90) days after the final 
   resolution, including the exhaustion of all appeals and any proceedings on 
   remand, of the [present lawsuit]. The County and the Sheriff are entering into 
   this Agreement in reliance on the Court’s determination of the issues raised 
   in the lawsuit, including the existence and extent of Indian country in Mille 
   Lacs County, and have not insisted upon the inclusion of provisions in this 
   Agreement that would be essential to them in the absence of the lawsuit. 
(Id. ¶ 25(c).)                                                            
II.  PROCEDURAL HISTORY                                                 
   On November 17, 2017, the Band, Rice, and Naumann sued the County, Walsh, and 
Lindgren, seeking declaratory and injunctive relief, as well as costs and attorneys’ fees. 
(Compl. [Doc. No. 1] at 7-8.) First, Plaintiffs seek a declaration that, under federal law, the 
Band has:                                                                 
   inherent sovereign authority to establish a police department and to authorize 
   Band police officers to investigate violations of federal, state and tribal law 
   within the Mille Lacs Indian Reservation as established in [the 1855 Treaty], 
   and, in exercising such authority, to apprehend suspects (including Band and 
   non-Band members) and turn them over to jurisdictions with prosecutorial 
   authority.                                                           
(Id. at 7.)                                                               
   Second, Plaintiffs seek a declaration that:                          
   Pursuant  to  

(d),  

  and  2804,  the 
   Deputation Agreement between the Band and the [BIA], and the SLECs   
   issued to Band police officers by the [BIA], Band police officers have federal 
   authority to investigate violations of federal law within the Mille Lacs Indian 
   Reservation as established in [the 1855 Treaty], and, in exercising such 
   authority, to arrest suspects (including Band and non-Band members) for 
   violations of federal law.                                           
(Id.)                                                                     
   Finally, Plaintiffs seek to enjoin Defendants from taking any actions that interfere 
with Band officers’ authority, as determined by this Court. (Id. at 8.)   
   On April 27, 2020, Magistrate Judge Brisbois entered the Third Amended Pretrial 
Scheduling Order, which, inter alia, granted the parties leave to file early dispositive 
motions “only so far as are outlined in their Joint Motion for Leave to File Early Dispositive 
Motions.” (Third Am. Pretrial Scheduling Order [Doc. No. 138] at 6.) In their Joint Motion, 
the parties only sought leave to file the following dispositive motions: “(1) Plaintiffs’ 
motion for summary judgment that they have standing and that their claims are ripe and 
not moot; (2) the Defendant County Attorney and County Sheriff’s motion for summary 

judgment on their immunity defenses; and (3) the Defendant County Attorney’s motion for 
summary judgment that the Court lacks subject matter jurisdiction.” (Jt. Mot. [Doc. No. 
132] at 1-2.)                                                             
III.  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., 

 (8th Cir. 2016). Likewise, an issue 
of material fact 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., 

, 

, 

 (1986). The moving party bears the burden of establishing 
a lack of any genuine issue of material fact in dispute, Celotex Corp. v. Catrett, 

, 

, 

 (1986), and the Court must view the evidence 
and  any  reasonable  inferences  in  the  light  most  favorable  to  the  nonmoving  party. 
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 

, 

 (1986).                                                     
   Walsh and Lorge move for summary judgment alleging that this Court lacks subject 
matter jurisdiction over this matter or, alternatively, that they are nevertheless immune 
from suit. Plaintiffs move for summary judgment on three threshold issues of justiciability: 
standing, ripeness, and mootness.                                         

   The  Court  first  considers  Walsh’s  and  Lorge’s  challenge  to  subject  matter 
jurisdiction.                                                             
        B. Subject Matter Jurisdiction                                  
   Defendants Walsh and Lorge contend that there is no basis under federal law for the 
Court to exercise federal question subject matter jurisdiction over any of Plaintiffs’ claims 

of interference with the Band’s sovereign law enforcement authority. (Walsh and Lorge 
Mem. in Supp. of Mot. for Summ. J. (“Ind. Defs.’ Mem. Summ. J.”) [Doc. No. 164] at 14-
31.) Defendants further argue that Congress’s enactment of the TLOA precludes the Court 
from applying federal common law to the issues raised in this case.3 (Id. at 21-22.) In 
response, Plaintiffs contend that the Court may exercise federal question subject matter 
jurisdiction over each of its claims under federal common law, 

 and 

§ 1362, 

, and under certain treaties. (Pls.’ Mem. in Opp’n to Mot. for 
Summ. J. (“Pls.’ Opp’n Summ. J.”) [Doc. No. 173] at 12-24.)               
   Federal courts are “courts of limited jurisdiction” and only possess those powers 
authorized by the Constitution and by statute. Gunn v. Minton, 

 (2013) 
(internal quotations and citation omitted). Under 

, federal district courts 

“shall have original jurisdiction of all civil actions arising under the Constitution, laws, or 
treaties of the United States.” To determine whether a claim “arises under” federal law, 
federal courts apply the “well-pleaded complaint” rule. Great Lakes Gas Transmission Ltd. 
P’ship v. Essar Steel Minn. LLC, 

 (8th Cir. 2016). This rule “provides 
that federal jurisdiction exists only when a federal question is presented on the face of the 

plaintiff's properly pleaded complaint.” 

 (quoting Caterpillar Inc. v. Williams, 

 The parties debate whether the TLOA provides a private right of action. However, 
since the Plaintiffs have not plead any cause of action under the TLOA, the Court declines 
to address this issue.                                                    
386,  392 (1987)).  “Federal  question  jurisdiction  exists  if  the  well-pleaded  complaint 
establishes either that federal law creates the cause of action or that the plaintiff’s right to 

relief necessarily depends on resolution of a substantial question of federal law.” 

 
(quoting Williams v. Ragnone, 

 (8th Cir. 1998)).         
   It is well established that questions of federal common law can serve as a basis for 
the exercise of federal question subject matter jurisdiction under § 1331. Illinois v. City of 
Milwaukee, 

 (1972); see Nat’l Farmers Union Ins. Cos. v. Crow Tribe of 
Indians, 

 (1985). Indeed, in the context of federal Indian law, federal 

courts apply federal common law “as a necessary expedient when Congress has not spoken 
to a particular issue.” United States v. Lara, 

 (2004) (discussing County 
of  Oneida  v. Oneida  Indian  Nation  of  N.Y.,  

  (1985)) (internal 
quotations and citations omitted) (emphasis in original).                 
   Federal courts have often treated the scope of a tribe’s inherent sovereign authority 

as a matter of federal common law. See Lara, 

; Oliphant v. Suquamish 
Indian Tribe, 

 (1978); United States v. Terry, 

 
(8th Cir. 2005) (citing Strate v. A-1 Contrs., 

, 456 n.11 (1997); Duro v. Reina, 

 (1990)); see also Snow v. Quinault Indian Nation, 

 (9th Cir. 1983) (“Increasingly, the legal boundaries of tribal sovereignty are being 

defined  by  case  law.”);  1  Cohen’s  Handbook  of  Federal  Indian  Law  § 7.04  (2019) 
(“Federal  question  jurisdiction  …  extends  to  claims  based  on  federal  common  law, 
including  cases  involving  …  challenges  to  the  exercise  of  state  authority  in  Indian 
country.”); id. § 7.04 n.9 (collecting cases).                            
   Consistent with the above authority, the Ninth Circuit has specifically held that the 
scope of a tribe’s inherent sovereign law enforcement authority is a matter of federal 

common law. See Bishop Paiute Tribe v. Inyo Cnty., 

 (9th Cir. 
2017). In that case, the Bishop Paiute Tribe brought a declaratory judgment action against 
a county, a sheriff, and a district attorney, seeking, inter alia, a declaration that the Tribe 
had “the authority on its Reservation to stop, restrain, investigate violations of tribal, state 
and  federal  law,  detain,  and  transport  or  deliver a  non-Indian  violator  to  the proper 
authorities.” 

. The Ninth Circuit held that it had subject matter jurisdiction under 

§ 1331 because the Tribe “allege[d] that federal common law grants the Tribe the authority 
to ‘investigate violations of tribal, state, and federal law, detain, and transport or deliver a 
non-Indian violator to the proper authorities’” and that the “[t]he Defendants’ arrest and 
charging of [a tribal officer]” allegedly violated such federal common law. Id. at 1152. 
   Here,  Plaintiffs  similarly  allege  that  the  scope  of  the  Band’s  sovereign  law 

enforcement authority is defined by federal common law, hence raising a federal question 
sufficient to confer subject matter jurisdiction on this Court. Specifically, Plaintiffs allege 
that, “[a]s a matter of federal common law, the Band possesses inherent sovereign authority 
to establish a police force and to authorize Band police officers to investigate violations of 
federal, state and tribal law within the Reservation.” (Compl. [Doc. No. 1] ¶ H.) Plaintiffs 

further allege that, “[a]lso as a matter of federal common law, the Band possesses inherent 
sovereign authority to authorize its police officers to apprehend suspects and turn them 
over  to  jurisdictions  with  criminal  prosecutorial  authority.”  (Id.)  In  support  of  their 
allegations that Defendants have interfered with their sovereign law enforcement authority, 
Plaintiffs cite to the County Attorney’s threats of prosecution and arrest against Band 
officers as well as the County’s instructions to the Sheriff’s deputies not to arrest suspects 

apprehended by Band police officers. (See id. ¶¶ M-Q.) Accordingly, Plaintiffs have raised 
issues of federal common law on the face of their well-pleaded Complaint. As a result, they 
have adequately pleaded a federal question over which this Court has subject matter 
jurisdiction under § 1331.                                                
   Defendants rely primarily on the decision of the Eighth Circuit in Longie v. Spirit 
Lake Tribe, 

 (8th Cir. 2005), to support their claim that the issues raised in 

this case are matters of tribal and/or state law, not federal law. (Ind. Defs.’ Mem. Summ. 
J. at 19.) However, Longie is inapposite. It involved a disputed land transfer between a 
tribe and a member of that tribe. Longie, 

. The resolution of that dispute 
turned on whether there was a contract or other legal basis to force the tribe to effectuate 
the transfer under tribal law. 

 Unlike the disputed land transfer in Longie between the 

tribe and its member that raises issues under tribal law, the instant case raises issues of 
sovereign authority as between the Band and the County under federal common law. In 
fact, the Eighth Circuit made that very distinction in Longie when it described the United 
States Supreme Court’s decision in Nat’l Farmers Union Ins. Cos. as “finding jurisdiction 
under  section  1331  because  federal  common  law  establishes  the  limits  of  tribal 

sovereignty.” 

 at 590 (citing Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 

 (1985)).                                                
   Moreover, Walsh and Lorge’s argument that Congress has already acted in the area 
of tribal law enforcement authority by enacting the TLOA, thus precluding the Court from 
applying federal common law, is unavailing. While congressional legislation can displace 
federal common law under certain circumstances, “[t]he test for whether congressional 

legislation excludes the declaration of federal common law is simply whether the statute 
‘speak[s] directly to [the] question’ at issue.” Am. Elec. Power Co. v. Connecticut, 

, 423-24 (2011). Importantly, the TLOA does not speak to the scope of the Band’s 
sovereign law enforcement authority. Rather, it creates a federal program through which 
certain tribal officers may assist federal authorities in the enforcement of federal criminal 
law in Indian country. See 

. Accordingly, Congress has not displaced 

federal common law that serves to define the scope of a tribe’s sovereign law enforcement 
authority.                                                                
   Plaintiffs have raised issues of federal common law on the face of their well-pleaded 
Complaint, sufficient to confer federal question subject matter jurisdiction on this Court as 
to each of Plaintiffs’ claims.                                            

        C. Justiciability                                               
   Next,  the  Court  considers  Plaintiffs’  motion  for  summary  judgment  on  three 
threshold justiciability doctrines: standing, ripeness, and mootness. According to Plaintiffs, 
the record evidence establishes that they have standing and that their claims are ripe and 
not moot. The Court considers each of these issues in turn.               

               1.  Standing                                             
   Article III of the Constitution limits the jurisdiction of federal courts to certain 
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “One element of the case-or-
controversy requirement is that plaintiffs must establish that they have standing to sue.” 
Clapper  v.  Amnesty  Int’l U.S.A.,  

  (2013).  To  establish  Article  III 
standing,  a  plaintiff  must  show—as  an  “irreducible  constitutional  minimum”—the 

existence of three elements. Lujan v. Defenders of Wildlife, 

 (1992). First, 
there must be an “injury in fact.” 

 Second, “there must be a causal connection between 
the injury and the conduct complained of,” such that the injury is “fairly trace[able] to the 
challenged action of the defendant.” 

 Third, “it must be likely, as opposed to merely 
speculative, that the injury will be redressed by a favorable decision.” 

 (quotations 
and  citation  omitted).  Standing  “in  no  way  depends  on  the  merits  of  the  plaintiffs’ 

contention that particular conduct is illegal.” Warth v. Seldin, 

 (1975). 
   First, the Court considers whether Plaintiffs have suffered an injury in fact. Plaintiffs 
allege that they have suffered several related injuries in fact that establish standing: (1) 
interference with and infringement of the Band’s sovereign law enforcement authority; (2) 
resulting  injuries  to  Plaintiffs  Rice  and  Naumann’s  abilities  to  practice  their  chosen 

professions; (3) harm to morale causing several officers to resign; and (4) a resulting 
decline in effective law enforcement and public safety. (Pls.’ Mem. in Supp. of Mot. for 
Partial Summ. J. (“Pls.’ Mem. Summ. J.”) [Doc. No. 148] at 27-32.) Walsh and Lorge 
argue, to the contrary, that none of these injuries are sufficient to confer standing. (Walsh 
and Lorge Mem. in Opp’n to Mot. for Partial Summ. J. (“Ind. Defs.’ Opp’n Summ. J.”) 

[Doc. No. 176] at 29-45.)                                                 
   “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion 
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, 
not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 

 (2016) 
(quoting Lujan, 

). Importantly, courts have long recognized that tribes have 
legally protected rights in their sovereignty and, accordingly, that infringement of those 

rights confers standing. See Moe v. Confederated Salish & Kootenai Tribes of Flathead 
Reservation, 

, 468 n.7 (1976) (a tribe’s “discrete claim of injury” to “tribal 
self-government” can “confer standing” in a case involving a state’s imposition of taxes); 
Mashantucket Pequot Tribe v. Town of Ledyard, 

 (2d Cir. 2013) (“actual 
infringements on a tribe’s sovereignty constitute a concrete injury sufficient to confer 
standing”); Quapaw Tribe of Okla. v. Blue Tee Corp., 

 (N.D. 

Okla. 2009) (“Indian tribes, like states and other governmental entities, have standing to 
sue to protect sovereign or quasi-sovereign interests.”). Indeed,  a tribe has a legally 
protected interest in exercising its inherent sovereign law enforcement authority. Bishop 
Paiute Tribe v. Inyo County, 

 (9th Cir. 2017); see also Confederated 
Tribes & Bands of the Yakama Nation v. Yakima Cnty., 

 (9th Cir. 2020). 

In Bishop Paiute Tribe, for example, the Ninth Circuit found that a tribe has a legally 
protected interest in its “inherent sovereign authority to restrain, detain, and deliver to local 
authorities a non-Indian on tribal lands that is in violation of both tribal and state law.” 

. Consistent with this authority, the Court finds that the Band has a legally 
protected interest in exercising its inherent sovereign law enforcement authority.  

   As discussed earlier, the evidence in the record reveals numerous actual, concrete, 
and particularized incidents in which the Band’s police officers have been restricted from 
carrying out their law enforcement duties pursuant to the Opinion and Protocol. The 
County concedes as much but argues that it is justified in doing so and challenges the extent 
and scope of the Band’s sovereign law enforcement authority. The resolution of this issue 
is for another day. For purposes of Article III standing, however, those injuries in fact are 

actual, concrete, and particularized and therefore confer standing on the Band to challenge 
the County’s conduct.                                                     
   Second, the Court considers whether Plaintiffs’ injuries are fairly traceable to the 
challenged actions of Defendants in issuing and enforcing the Opinion and Protocol. 
“When government action or inaction is challenged by a party who is a target or object of 
that action, as in this case, ‘there is ordinarily little question that the action or inaction has 

caused him injury.’” Minn. Citizens Concerned for Life v. FEC, 

 (8th 
Cir. 1997) (quoting Lujan, 

).                           
   Plaintiffs argue that their injuries are fairly traceable to Defendants’ conduct for 
three reasons. First, they argue that the evidence of record is clear that compliance with the 
Opinion and Protocol, despite being titled as such, was mandatory. (Pls.’ Mem. Summ. J. 

at 32.) Second, Plaintiffs argue that Walsh clearly communicated to the Band police 
department that violations of the Opinion and Protocol could result in criminal and/or civil 
liability. (Id.) Finally, Plaintiffs note that Lindgren and his deputies repeatedly enforced 
the Opinion and Protocol. (Id.)                                           
   Walsh  and  Lorge  contend  that  Plaintiffs’  injuries  are  not  fairly  traceable  to 

Defendants’ actions for several reasons. First, they argue that the Opinion and Protocol did 
not actually restrict the Band’s law enforcement authority because the Band “chose to 
cooperate with” the Opinion and Protocol on the advice of its Solicitor General, Matha. 
(Ind. Defs.’ Opp’n Summ. J. at 33-34.) Second, they argue that Walsh never actually 
threatened a Band officer with prosecution and Lindgren never actually threatened a Band 
officer with arrest. (Id. at 34-35.)                                      

   The  Court  finds  that  Plaintiffs’  injuries  are  fairly  traceable  to  Defendants’ 
challenged conduct. The record is replete with evidence that County law enforcement and 
Band  officials  alike  understood  that  compliance  with  the  Opinion  and  Protocol  was 
mandatory. Walsh made clear that violations of the Opinion and Protocol could result in 
criminal and/or civil enforcement. (See, e.g., Baldwin Decl. [Doc. No. 150] Ex. N at 2.) 
And, as discussed earlier, Lindgren and his deputies enforced the Opinion and Protocol by 

actively interfering in the Band’s criminal investigations, even on trust lands. 
   The Court finds unavailing the Defendants’ argument that the Band’s decision to 
follow the Opinion and Protocol, on the advice of its Solicitor General, to avoid potential 
criminal and civil liability, is the actual and intervening cause of these injuries. That 
argument “wrongly equates injury ‘fairly traceable’ to the defendant with injury as to which 

the defendant’s actions are the very last step in the chain of causation.” Bennett v. Spear, 

 (1997). Indeed, “[a] plaintiff is not deprived of standing merely 
because he or she alleges a defendant’s actions were a contributing cause instead of the 
lone cause of the plaintiff’s injury.” City of Wyo. v. P&G, 

 
(D. Minn. 2016) (collecting cases).                                       

   Defendants’ arguments that they never actually threatened prosecution or arrest also 
miss the mark. First, Walsh made it clear that the Opinion and Protocol was to be enforced. 
Second, this lawsuit does not seek tort damages for prosecution or arrest under the Opinion 
and Protocol. Rather, it seeks a declaratory judgment that the Band’s sovereign authority 
has been infringed. The particularized injury that confers standing in this case is that very 
interference with the Band’s sovereign law enforcement authority. Accordingly, the Court 

finds that Plaintiffs’ injuries are “fairly traceable” to Defendants’ alleged unlawful conduct. 
   Finally, in order to confer standing, the Court must find that it will be likely that the 
injury will be redressed by a favorable decision.  In this case, the declaratory and injunctive 
relief sought is specifically designed to do just that—to recognize and restore the Band’s 
sovereign law enforcement authority.                                      
   Accordingly, the Court finds that Plaintiffs have met their burden of establishing 

standing to pursue these claims.                                          
               2.   Ripeness                                            
   Next, Plaintiffs seek summary judgment on the issue of ripeness. Whether a claim 
is ripe depends on “the fitness of the issues for judicial decision and the hardship to the 
parties of withholding court consideration.” Public Water Supply Dist. No. 10 v. City of 

Peculiar, 

 (8th Cir. 2003) (quoting Abbott Labs. v. Gardner, 

 (1967)). A plaintiff must satisfy both elements “at least to a minimal degree.” 

 
(citing Nebraska Pub. Power Dist. v. MidAmerican Energy Co., 

 (8th 
Cir. 2000)). Under the “fitness for judicial decision” prong of the analysis, whether a case 
is fit “depends on whether it would benefit from further factual development.” Id. at 573. 

A case “is more likely to be ripe if it poses a purely legal question and is not contingent on 
future possibilities.” Id. Under the hardship prong, the plaintiff must have “sustained or is 
immediately in danger of sustaining some direct injury as the result of the challenged” 
conduct. Id. (quoting O’Shea v. Littleton, 

 (1974)).     
   Plaintiffs contend that their claims are ripe because the mandates of the Opinion and 
Protocol, as enforced by the County and the Sheriff, have repeatedly infringed on their 

sovereign law enforcement authority. (Pls.’ Mem. Summ. J. at 35.) In response, Defendants 
argue that the Band has not in fact suffered a cognizable injury. (Ind. Defs.’ Opp’n Summ. 
J. at 46-51.)                                                             
   Plaintiffs satisfy both prongs of the ripeness analysis. This case is clearly fit for 
judicial decision. And under the “hardship prong,” Plaintiffs have presented a record with 
sufficient  evidence  that  they  have  sustained  a  direct  injury  to  their  sovereign  law 

enforcement authority as a result of the challenged conduct.              
               3.   Mootness                                            
   Finally, Plaintiffs move for summary judgment on the issue of mootness, contending 
that the 2018 Agreement, which temporarily granted the Band the same law enforcement 
powers that it possessed before the County revoked the 2008 Agreement, does not moot 

this case. A case can become moot by a party’s voluntary cessation of the challenged 
conduct if it is “absolutely clear that the allegedly wrongful behavior could not reasonably 
be expected to recur.” Wright v. RL Liquor, 

 (8th Cir. 2018) (quoting 
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

 (2000)). 
The party asserting that a case is moot bears a “heavy burden of persuading the court that 

the challenged conduct cannot reasonably be expected to start up again.” Friends of the 
Earth, 

 (internal quotations and citation omitted).        
   Defendants fail to meet this burden. If this case is dismissed, on mootness grounds, 
the 2018 Agreement will, by its very terms, terminate, and it is highly probable that the 
parties will continue to dispute the extent of the boundaries of the Reservation and the 
extent of the Band’s sovereign law enforcement authority. It is certainly not “absolutely 

clear that the allegedly wrongful behavior could not reasonably be expected to recur.” 
Friends of the Earth, 

 (citation omitted).                 
        D. Walsh and Lorge’s Defenses of Immunity                       
   Next, the Court considers Defendants Walsh’s and Lorge’s defenses of immunity 
from suit. Specifically, they argue: (1) that the Tenth Amendment bars this action because 
Plaintiffs unlawfully seek to control Walsh’s prosecutorial discretion; (2) that Younger 

abstention is appropriate and principles of federalism and comity preclude the Court from 
awarding injunctive relief; (3) that the Eleventh Amendment immunizes Walsh and Lorge 
from this suit; and (4) that absolute prosecutorial immunity insulates Walsh and Lorge from 
this suit. (See Ind. Defs.’ Mem. Summ. J. at 31-46.) The Court considers each of these 
arguments in turn.                                                        

               1.  Tenth Amendment and Prosecutorial Discretion         
   The gravamen of Defendants’ claims of immunity under the Tenth Amendment rest 
on their prosecutorial discretion. Walsh and Lorge argue that Plaintiffs seek to interfere 
with that discretion and that Plaintiffs improperly ask this Court to review their charging 
decisions.  (Ind.  Defs.’  Mem.  Summ.  J.  at  31-36.)  Plaintiffs  respond that  Defendants 

fundamentally misunderstand their claims. Plaintiffs argue that they do not seek to interfere 
with any charging decision. (Pls.’ Opp’n Summ. J. at 25.) Rather, they seek clarity as to 
their sovereign law enforcement authority and they ask for an order preventing Walsh and 
Lorge from interfering with that authority. (Id.)                         
   The Court is not aware of any authority, nor do Defendants cite any authority, for 
the  proposition  that  a  judicial  declaration  of  the  scope  of  a  tribe’s  sovereign  law 

enforcement authority or a judicial order prohibiting interference with that authority runs 
afoul of the Tenth Amendment.                                             
   It is well established that the Tenth Amendment does not foreclose federal courts 
from preventing state (or local) officials from infringing upon rights secured by federal 
law. See Prairie Band Potawatomi Nation v. Wagnon, 

 (10th Cir. 
2007); Mille Lacs Band of Chippewa Indians v. Minnesota, 

, 928 n.44 (8th 

Cir. 1997), aff’d, 

 (1999). For instance, when the Mille Lacs Band sought to 
prevent Minnesota officials from interfering with the Band’s treaty-based rights to hunt, 
fish, and gather, the Eighth Circuit rejected a Tenth Amendment defense because the “case 
[was] about state law infringing on rights guaranteed by federal law, and there is no 
question that federal courts have the power to order state officials to comply with federal 

law.” Mille Lacs Band, 

 n.44 (citations omitted). Accordingly, Walsh and 
Lorge’s defense of immunity based on their prosecutorial discretion under the Tenth 
Amendment fails.                                                          
               2.   Younger Abstention and Principles of Federalism and 
                    Comity                                              
   Walsh and Lorge urge the Court to dismiss them from this case under the Younger 
abstention doctrine, and they contend that the Court cannot issue an injunction under the 

principles of federalism articulated in Rizzo v. Goode, 

 (1976), and O’Shea v. 
Littleton, 

 (1974).                                           
   The Younger abstention doctrine arose out of principles of comity articulated by the 
United States Supreme Court in Younger v. Harris, 

 (1971). Under that 

doctrine, federal courts must “abstain from taking jurisdiction over federal constitutional 
claims that involve or call into question ongoing state proceedings.” Diamond “D” Const. 
Corp. v. McGowan, 

, 198 (2d Cir. 2002) (citing Younger, 

). 
Specifically,  the  Court  is  required  to  abstain  when:  “(1)  there  is  an  ongoing  state 
proceeding, (2) that implicates important state interests, and (3) that provides an adequate 
opportunity to raise any relevant federal questions.” Tony Alamo Christian Ministries v. 

Selig, 

 (8th Cir. 2012) (citing Plouffe v. Ligon, 

 
(8th Cir. 2010)). If these three conditions are satisfied, “principles of comity and federalism 
preclude federal actions seeking injunctive or declaratory relief.” 

   
   “Circumstances  fitting  within  the  Younger  doctrine  ...  are  ‘exceptional’;  they 
include  …  ‘state  criminal  prosecutions,’  ‘civil  enforcement  proceedings,’  and  ‘civil 

proceedings involving certain orders that are uniquely in furtherance of the state courts’ 
ability to perform their judicial functions.’” Sprint Communs., Inc. v. Jacobs, 

 (2013) (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 

 (1989)). Unless the case is deemed to be “exceptional,” however, the general rule 
applies—“the pendency of an action in [a] state court is no bar to proceedings concerning 

the same matter in the Federal court having jurisdiction.” Colo. River Water Conservation 
Dist. v. United States, 

 (1976) (quoting McClellan v. Carland, 

 (1910)).                                                         
   Defendants Walsh and Lorge argue that this Court must abstain from hearing this 
case under the Younger abstention doctrine. Specifically, they argue that the effect of 

injunctive relief in this case would be to improperly enjoin pending or threatened criminal 
prosecutions. (Ind. Defs.’ Mem. Summ. J. at 36-38.) Plaintiffs respond that there is no 
pending state court proceeding in which the Band’s sovereign law enforcement authority 
will be adjudicated, let alone one that qualifies as “exceptional” under Supreme Court 
precedent. They note that this Court has previously held that Younger abstention would be 
inappropriate in a case seeking a determination of the extent of the Band’s treaty rights 

relating to hunting, fishing, and gathering, even in the presence of pending criminal 
prosecutions. (Pls.’ Opp’n Summ. J. at 30 (citing Mille Lacs Band of Chippewa Indians v. 
Minn. Dep’t of Nat. Res., 

 (D. Minn. 1994))).      
   The Court agrees with the Plaintiffs. Younger abstention is simply not applicable in 
the  absence  of  both  a  state  and  federal  proceeding  considering  the  same  federal 

constitutional claims. Therefore, Defendants’ motion for summary judgment based on the 
Younger abstention doctrine is denied.                                    
   Next, Walsh and Lorge contend that federalism and comity principles under Rizzo 
v. Goode, 

 (1976), and O’Shea v. Littleton, 

 (1974), preclude the 
Court from granting injunctive relief in this case.                       

   In  Rizzo,  the  Supreme  Court  struck  down  an  injunction  revising  the  internal 
procedures of the Philadelphia police department based, in part, on principles of federalism. 

. The Court explained that “[w]here … the exercise of authority by state 
officials is attacked, federal courts must be constantly mindful of the special delicacy of 
the adjustment to be preserved between federal equitable power and State administration 
of its own law.” 

 (internal quotations and citations omitted). Further, the Court 

noted that such federalism concerns “have applicability where injunctive relief is sought 
…  against  those  in  charge  of  an  executive  branch  of  an  agency  of  state  or  local 
governments.” 

. In O’Shea, the Court struck down an injunction that sought to 
control and prevent specific events that might occur during state prosecutions, which, 
according  to  the  Court,  constituted  “an  ongoing  federal  audit  of  state  criminal 
proceedings.” 

.                                       

   Walsh and Lorge contend that an injunction in this case would run afoul of the 
principles of federalism and comity under Rizzo and O’Shea. They warn that the Court 
“could be forced to referee jurisdictional disputes between the Sheriff and tribal police” 
and “the injunction would require continuous supervision by the federal courts over the 
administration of state executive functions.” (Ind. Defs.’ Mem. Summ. J. at 36-38.) In 

response, Plaintiffs argue that this case does not raise federalism concerns under Rizzo and 
O’Shea because here, Plaintiffs seek only a declaration as to the scope of their sovereign 
law enforcement authority. (Pls.’ Opp’n Summ. J. at 31-35.) Nothing, they contend, in 
Rizzo or O’Shea bars such relief. (Id.)                                   
   The Court agrees that federalism principles under Rizzo and O’Shea do not preclude 

injunctive relief in this case. The Eighth Circuit has recognized that the federalism concerns 
in Rizzo only apply in “quite narrow circumstances.” Chambers v. Marsh, 

 (8th Cir. 1982), rev’d on other grounds, Marsh v. Chambers, 

 (1983). 
Unlike the injunction in Rizzo, Plaintiffs do not request an order “revising the internal 
procedures” of the County Attorney’s Office or Sheriff’s Office. Rather, Plaintiffs seek to 
enjoin interference with their sovereign law enforcement authority, a matter of federal law. 

Accordingly, although federal courts must be cognizant of federalism concerns under 
Rizzo, “they must, and do, retain power to enforce compliance with” federal law. Youakim 
v. Miller, 

 (7th Cir. 1977).                             
   Likewise, the federalism concerns articulated in O’Shea do not exist here. Unlike 
the plaintiffs in O’Shea, Plaintiffs do not seek an “ongoing federal audit” of any state 
proceedings. See 

. Rather, they ask this Court to define the extent of their 

sovereign  law  enforcement  authority  and enjoin  any  interference  with  that  authority.  
O’Shea has no applicability to this case.                                 
   Accordingly, to the extent that Defendants move for summary judgment based on 
principles of federalism and comity articulated in Rizzo and O’Shea, the motion is denied. 
               3.   Eleventh Amendment Immunity                         

   Next, Walsh and Lorge argue that the Eleventh Amendment renders them immune 
from Plaintiffs’ “official capacity” claims. Under the Eleventh Amendment, however, 
“only States and arms of the State possess immunity from suits authorized by federal law.” 
N.  Ins.  Co.  v.  Chatham  Cnty.,  

  (2006).  The  Supreme  Court  has 
consistently declined to extend Eleventh Amendment immunity to counties, even when 

“such entities exercise a ‘slice of state power.’” 

 at 193-94 (quoting Lake Country 
Estates,  Inc.  v.  Tahoe  Regional  Planning  Agency,  

  (1979));  see 
Greenwood v. Ross, 

 (8th Cir. 1985) (“It is settled that a suit against a 
county, a municipality, or other lesser governmental unit is not regarded as a suit against a 
state within the meaning of the Eleventh Amendment.” (quoting Gilliam v. City of Omaha, 

 (8th Cir. 1975))).                                    

   Whether an agency qualifies as an “arm of the state” under the Eleventh Amendment 
is a question of federal law that requires an analysis of the “provisions of state law that 
define the agency’s character.” Thomas v. St. Louis Bd. of Police Comm’rs, 

 (8th Cir. 2006) (quoting Regents of the Univ. of Cal. v. Doe, 

, 429 n.5 
(1997)). Specifically, courts must analyze “the agency’s degree of autonomy and control 
over its own affairs and, more importantly, whether a money judgment against the agency 

will be paid with state funds.” 

                                       
   Applying  the  analytical  framework  in  Thomas,  the  Court  finds  that  Eleventh 
Amendment immunity does not shield Walsh and Lorge from liability here, because they 
are not “arms of the state.” First, under Minnesota law, the County Attorney and Sheriff 
have wide autonomy and control over their affairs, wholly apart from the state. See Thomas, 

. For example, the County Attorney and the Sheriff are not subject to state 
control in the execution of their statutory  duties. 

 (establishing 
County  Attorney’s  duties);  

  § 387.03  (establishing  Sheriff’s  powers  and  duties). 
Moreover, the County Attorney and Sheriff are both elected positions. Id. § 382.01. And 
as elected county officials, the County Attorney and Sheriff can be removed through a 

petition containing the signatures of at least 25 percent of the number of people who voted 
in the last election for the county office that is the subject of the petition. Id. §§ 351.15-23; 
see id. § 351.14, subd. 5. Also, the County Board, not the state, sets and pays the salary of 
the County Attorney. Id. § 388.18, subd. 2, 5; id. § 388.22 subd. 1, 2. Likewise, the County 
Board sets the Sheriff’s salary. Id. § 387.20, subd. 2(a). Accordingly, the County Attorney 
and the Sheriff have significant autonomy and control over their affairs apart from the state. 

   Second,  and  “more  importantly,”  Thomas,  

,  Minnesota  law 
provides that a money judgment against Walsh and Lorge would be paid with county, not 
state, funds. Specifically, Minnesota law provides that “[w]hen a judgment is recovered 
against … a county officer, in an action … against the officer officially … the judgment 
shall be paid from funds in the [county] treasury,” and if such funds are unavailable in the 
county treasury, “the unpaid amount of the judgment shall be levied and collected as other 

county charges.” 

. Thus, although Plaintiffs do not seek a money 
judgment in this case, a money judgment against Walsh and Lorge would be paid by the 
county.                                                                   
   Walsh and Lorge note that several of their duties and powers arise from Minnesota 
state statutes, such as Walsh’s duty to enforce state water laws and Lorge’s power to pursue 

and apprehend persons suspected of criminal activity. (See Ind. Defs.’ Mem. Summ. J. at 
41.) However, this demonstrates that Walsh and Lorge exercise, at most, “slices of state 
power” but does not establish that they are acting as “arms of the state” under the Eighth 
Circuit’s framework in Thomas.                                            
   Accordingly, the Eleventh Amendment does not bar Plaintiffs’ “official capacity” 

claims against Walsh and Lorge.                                           
               4.   Absolute Prosecutorial Immunity                     
   Next, Walsh and Lorge seek dismissal from this case on the ground of absolute 
prosecutorial immunity. Absolute prosecutorial immunity protects prosecutors from suits 
for  damages  “arising  out  of  their  official  duties  in  initiating  and  pursuing  criminal 
prosecutions.” Saterdalen v. Spencer, 

 (8th Cir. 2013) (quoting Williams 

v. Hartje, 

 (8th Cir. 1987)). However, absolute prosecutorial immunity 
does not extend to “[a] prosecutor’s administrative duties and those investigatory functions 
that do not relate to an advocate’s preparation for the initiation of a prosecution or for 
judicial proceedings.” Stockley v. Joyce, 

 (8th Cir. 2020) (quoting 
Buckley v. Fitzsimmons, 

 (1993)). Specifically, “prosecutors are not 
entitled to absolute immunity for their actions in giving legal advice to the police,” because 

providing advice to the police is “not a function ‘closely associated with the judicial 
process.’” Buckley v. Fitzsimmons, 

 (1993) (quoting Burns v. Reed, 

 (1991)).                                                    
    According to Walsh, the conduct at issue in this case—his “alleged, threatened 
prosecution of” Plaintiffs—relates to his prosecutorial function, and thus he should be 

immune  from  suit.  (Ind.  Defs.’  Mem.  Summ.  J.  at  43-44.)  If  Walsh  is  entitled  to 
prosecutorial immunity, Defendants argue that Lorge is likewise entitled to immunity for 
following Walsh’s “legal advice.” (Id. at 46.) In response, Plaintiffs contend that Walsh’s 
and Lorge’s conduct at issue in this case does not fall within the scope of prosecutorial 
immunity and that, in any event, prosecutorial immunity cannot shield Walsh and Lorge 

because Plaintiffs do not seek money damages. (Pls.’ Opp’n Summ. J. at 44-47.) 
   As a threshold matter, although prosecutors enjoy absolute prosecutorial immunity 
from damages liability in certain circumstances, absolute prosecutorial immunity does not 
extend to actions for declaratory and injunctive relief. See Supreme Court v. Consumers 
Union of United States, 

 (1980) (“Prosecutors enjoy absolute immunity 
from damages liability, but they are natural targets for § 1983 injunctive suits” (citation 

omitted)); Heartland Acad. Cmty. Church v. Waddle, 

, 531 (8th Cir. 2005) 
(citing  and  quoting  Consumers  Union  for  the  proposition  that  “prosecutors,  as  state 
enforcement officers, are ‘natural targets for § 1983 injunctive suits’”); Bishop Paiute 
Tribe v. Inyo Cnty., No. 1:15-cv-00367-DAD-JLT, 

, at *21 
(E.D. Cal. Jan. 10, 2018) (holding that absolute prosecutorial immunity defense was 
unavailable in suit arising under federal common law and seeking only injunctive and 

declaratory relief).                                                      
   District Courts within the Eighth Circuit have also held that absolute prosecutorial 
immunity does not apply in an action for declaratory and injunctive relief. See, e.g., Richter 
v. Smith, No. C16-4098-LTS, 

, at *21 (N.D. Iowa Dec. 21, 
2018) (“absolute immunity bars recovery of money damages only”); Kurtenbach v. S.D. 

AG, 

, at *7 (D.S.D. Mar. 29, 2018) (“Immunities, i.e., 
absolute, prosecutorial or qualified immunity are not a bar to plaintiffs action for injunctive 
and declaratory relief under Section 1983.” (internal quotations and citations omitted)); 
Oglala Sioux Tribe v. Hunnik, 

 (D.S.D. 2014) (holding that 
State’s Attorney was “not entitled to prosecutorial immunity for prospective injunctive or 

declaratory relief” where plaintiff did not seek money damages); Hayden v. Nev. Cnty., No. 
08-4050, 

, at *11 (W.D. Ark. Mar. 6, 2009) (“absolute 
immunity does not protect a prosecutor from claims for injunctive relief”). Here, Plaintiffs 
do  not  seek  money  damages—they  seek  only  declaratory  and  injunctive  relief. 
Accordingly, Walsh and Lorge are not entitled to dismissal from this suit on the ground of 
absolute prosecutorial immunity.                                          

               5.   Walsh and Lorge’s Remaining Arguments               
   Walsh and Lorge raise several other arguments. First, they seek dismissal of the 
“official  capacity”  claims  asserted  against  them  on  the  ground  that  such  claims  are 
redundant. Second, they seek dismissal of the “individual capacity” claims asserted against 
them on the grounds that (1) equitable relief cannot be obtained against government 
officials in their individual capacities and (2) Plaintiffs have failed to state “individual 

capacity” claims against Walsh and Lorge because their allegations all involve official 
conduct. Third, they request a ruling that qualified immunity bars Plaintiffs from seeking 
costs and attorney’s fees from Walsh and Lorge in their individual capacities and that there 
is no statutory basis to award Plaintiffs costs and attorney’s fees against Walsh and Lorge 
in their individual capacities. (See Ind. Defs.’ Mem. Summ. J. at 46-55.) 

   The Court declines to consider these arguments at this time. The Third Amended 
Scheduling Order did not authorize Walsh and Lorge to seek summary judgment on these 
issues through an early dispositive motion. (Third Am. Pretrial Scheduling Order [Doc. 
No. 138] at 6; see Jt. Mot. [Doc. No. 132] at 1-2.) Walsh and Lorge may raise these 
arguments again, if and when it is appropriate to do so.                  

IV.  CONCLUSION                                                         
   Based on the foregoing, and the entire file and proceedings herein, IT IS HEREBY 
ORDERED that:                                                             
   1.  Plaintiffs’ Motion for Summary Judgment on Standing, Ripeness, and Mootness 
     [Doc. No. 146] is GRANTED;                                         

   2.  Defendants Walsh and Lorge’s Motion for Summary Judgment [Doc. No. 162] 
     is DENIED;                                                         
   3.  Defendants County of Mille Lacs, Walsh, and Lorge’s Motion to Strike and for 
     Sanctions [Doc. No. 182] is DENIED.                                
IT IS SO ORDERED.                                                         


Dated: December 21, 2020             s/Susan Richard Nelson               
                                   SUSAN RICHARD NELSON                 
                                   United States District Judge