LOUIS MERRILL, Employee/Appellant, v. MILLE LACS BAND FAMILY SERVS., and BERKLEY RISK ADMIN. CO., LLC, Employer-Insurer/Respondents, and SPECIAL COMP. FUND.

OCTOBER 15, 2020

JURISDICTION - SUBJECT MATTER.  The compensation judge correctly concluded that the employer, the Mille Lacs Band of Ojibwe, was immune from liability for Minnesota workers’ compensation benefits pursuant to Tibbetts v. Leech Lake Reservation Bus. Comm., 397 N.W.2d 883 (Minn. 1986).

JURISDICTION - SUBJECT MATTER.  The doctrine of preemption does not defeat an Indian tribe’s sovereign immunity against a Minnesota Workers’ Compensation Act claim, so long as the tribe has not waived that immunity for claims in workers’ compensation.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. David A. Stofferahn, Judge
  3. Sean M. Quinn, Judge

Compensation Judge:  Kathleen Behounek

Attorneys: Joshua E. Borken, Law Office of Joshua Borken, St. Paul, Minnesota, for the Appellant. Barbara E. Cole, Joseph F. Halloran, The Jacobson Group, St. Paul, Minnesota, for the Respondents.




The employee appeals from a compensation judge’s order dismissing his claim petition on the basis that jurisdiction over a federally recognized Indian tribe is lacking for purposes of the Minnesota Workers’ Compensation Act.  We affirm.


The employee, Louis Merrill, is an enrolled member of the Mille Lacs Band of Ojibwe (the Mille Lacs Band).  The Mille Lacs Band is a federally recognized sovereign Indian tribe.  On February 19, 2019, the employee was working for the Mille Lacs Band Family Services (a department of the Mille Lacs Band) when he slipped on ice on a mat in the entryway of the work premises.  The employee experienced low back and neck pain, which he attributed to twisting while preventing himself from falling.  Conservative treatment for the employee’s pain symptoms was undertaken, primarily consisting of physical therapy.  The employee filed a claim in the workers’ compensation system of the Mille Lacs Band.  The employer admitted the injury and paid benefits, including temporary total disability (TTD) benefits.

On September 4, 2019, Stephen Barron, M.D., issued an independent medical examination (IME) report outlining the results of his examination of the employee on behalf of the Mille Lacs Band.  Dr. Barron opined that the employee’s February 19, 2019, work injury was temporary and had resolved as of May 19, 2019.  Dr. Barron also opined that the employee did not suffer any permanent partial disability, have any restrictions, or need any further medical care due to the February 19, 2019, work injury.  In reliance on the opinion of Dr. Barron, the employer discontinued TTD benefits to the employee.  The employee did not appeal the discontinuance, later maintaining that he could not find an attorney admitted to practice before the tribal court.

On October 24, 2019, the employee’s counsel filed a claim petition with the Minnesota Department of Labor and Industry seeking benefits for the employee under the Minnesota Workers’ Compensation Act.[1]  An amended claim petition was filed with the Minnesota Office of Administrative Hearings (OAH) on November 12, 2019.  In November 2019, the Mille Lacs Band filed with OAH a motion to dismiss the claim petition with prejudice, on the basis that jurisdiction was lacking.  On February 12, 2020, the motion came on for hearing before Compensation Judge Kathleen Behounek.  No witness testimony was taken.  By order issued March 2, 2020, the judge dismissed the claim petition for lack of jurisdiction, citing Tibbetts v. Leech Lake Reservation Bus. Comm., 397 N.W.2d 883 (Minn. 1986).  The employee appeals.


On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).


The employee contends that the manner in which the Mille Lacs Band workers’ compensation system operates effectively waives immunity from claims under the Minnesota Workers’ Compensation Act.  In the alternative, the employee contends that Minnesota law preempts the Mille Lacs Band sovereign status, through the State’s interest in providing workers’ compensation benefits.  The Mille Lacs Band asserts that here there is no express or implied waiver of immunity.  Mille Lacs Band also asserts it is not subject to the Minnesota Workers’ Compensation Act.  We agree with the Mille Lacs Band; and affirm the Compensation Judge based on the analysis below.

Sovereign Immunity

The injury in this case occurred on the property of the Mille Lacs Band, to an employee of the Mille Lacs Band.  Under such circumstances, the doctrine of sovereign immunity generally leaves a state with “no power in Indian country unless Congress has manifested its intent to the contrary….”[2]  No suit, including a claim for workers’ compensation benefits, can be brought unless “Congress has authorized the suit or the tribe has waived its immunity.”[3]

Whether Congress authorized application of the Minnesota Workers’ Compensation Act against a federally recognized sovereign Indian tribe was explicitly determined in Tibbetts.  The Minnesota Supreme Court analyzed the application of Public Law 280 (codified as 18 U.S.C. § 1162 and 28 U.S.C. § 1360) and 40 U.S.C. § 290 and concluded that neither statute abrogated the tribe’s sovereign immunity from the Minnesota Workers’ Compensation Act.[4]

Here, the employee contends that by having an insufficient number of attorneys eligible to appear in tribal court, the Mille Lacs Band has impliedly waived immunity.  In Santa Clara Pueblo v. Martinez, the U.S. Supreme Court described the standard for waiving immunity, stating: “It is settled that a waiver of sovereign immunity ‘cannot be implied, but must be unequivocally expressed.’”[5]

As noted by the Mille Lacs Band at the hearing on the motion to dismiss, “Having sovereign immunity from suit it [the Mille Lacs Band] is not subject to the jurisdiction of this Court unless there has been a waiver by Congress or by the Band itself.  And there’s been no showing of either.  In fact, it hasn’t occurred.”[6]  There is no express waiver of sovereign immunity in the case before us, and therefore, we are not persuaded by the employee’s position.[7]


The employee argues that Minnesota’s strong interest in ensuring that citizens receive compensation for injuries outweighs the Mille Lacs Band’s interest in maintaining its sovereign privileges, and that it is therefore appropriate for Minnesota to assert jurisdiction in this matter.  Our conclusions as to the existence of the Mille Lacs Band's sovereign immunity and the absence of a waiver of that immunity render the employee’s argument moot.[8]

There is no recourse for workers’ compensation benefits under the Minnesota system for the employee as the Mille Lacs Band is immune from this type of suit.  Given the law and facts of this case, the order dismissing the employee’s claim petition is affirmed.

[1] Minn. Stat. Chap. 176.

[2] Swenson v. Nickaboine, 793 N.W.2d 738, 743, 71 W.C.D. 69, 75-76 (Minn. 2011) (citing McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 170-71 (1973)).

[3] Kiowa Tribe v. Mfg. Tech., Inc., 523 U.S. 751, 754 (1998).

[4] Tibbetts, 397 N.W.2d at 887-88.

[5] 436 U.S. 49, 58-59 (1978) (quoting United States v. Testan, 424 U. S. 392, 399 (1976), (quoting United States v. King, 395 U. S. 1, 4 (1969))).

[6] T. 6.

[7] The employee also asserts that, as a tribal member, he has the right to waive immunity on behalf of the Mille Lacs Band.  No caselaw is cited in support of this proposition, and it is contrary to the fundamental principles of sovereign immunity.  See Santa Clara Pueblo v. Martinez, 436 U.S. at 59 (“… the provisions of § 1303 can hardly be read as a general waiver of the tribe's sovereign immunity.”) (emphasis added); Tibbetts v. Leech Lake Reservation Bus. Comm., 397 N.W.2d 883, at 886 (“Absent waiver by the Tribe ….”) (emphasis added).  A tribe may waive immunity by voluntarily intervening in a court proceeding to advance an interest, but that situation is inapplicable here.  See United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981).

[8] Tibbetts, 397 N.W.2d at 887-888.