Indian Law Section draws key players for panel, honors assistant U.S. attorney

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 Photo 1: William Gregory,  Prosecutor for the Little River Band of Indians, teases Jeff Davis, an assistant U.S. attorney in the Western District of Michigan office, during his remarks before the section gave Davis its Tecumseh Award.

Photo 2: Panel members for the discussion of Michigan v. Bay Mills include, left to right, Riyaz Kanji, Kanji & Katzen PLLC, Ann Arbor; attorney Kathryn “Candy” Tierney, Bay Mills Indian Community; and Louis Reinwasser, Michigan Attorney General Environment, Natural Resource and Agricultural Division.

 LEGAL NEWS PHOTOS BY CYNTHIA PRICE

 

By Cynthia Price
Legal News

 

When the State Bar of Michigan met in Grand Rapids last month, its American Indian Law Section was privileged to have attorneys for both sides in the well-known case Michigan v. Bay Mills Indian Community.

The very intricate case eventually made its way to the Supreme Court of the United States (SCOTUS), where the justices’ decision in May created at least some degree of certainty about federal jurisdiction and sovereign immunity for tribes.

The section’s panel featured the attorney who handled the case for the state, Louis Reinwasser, and the attorney for the Bay Mills community, introduced by moderator Doug McIntire as “the great Candy Tierney.”

Also on the panel was an attorney from Kanji and Katzen in Ann Arbor, Riyaz Kanji, who had submitted amicus briefs in Bay Mills and other American Indian cases.

The federally-recognized Bay Mills Indian Community started up a small casino in Vanderbilt on land that it had purchased with funds from a congressionally established trust, which Bay Mills considered therefore to be Indian land. The State of Michigan sued to close the casino, since it disputed that the land should be considered Indian land (and federal authorities later ruled it was not); state gaming laws, as well as the Tribal-State compact, preclude opening a casino on non-Indian land.

The U.S. District Court agreed with the State of Michigan, ordering a preliminary injunction, but the Sixth Circuit Court of Appeals ruled that the district court lacked jurisdiction on some of the claims and that others were barred by Bay Mills Indian Community’s sovereign immunity.

The Indian Gaming Regulatory Act (IGRA) is the federal statute that covers such pursuits.

Interestingly, the question under consideration was generated by the same circumstances that gave rise to Michigan wanting to prohibit the casino: the status of the land in Vanderbilt.

As then-Solicitor General John Bursch stated in his argument before SCOTUS, the State would have had no problem with the casino if it had been on undisputed tribal land. The questions under consideration at SCOTUS were: “Does a federal court have jurisdiction over activity that violates the IGRA, but takes place outside of Indian lands? In such a case, does tribal sovereign immunity prevent a state from suing in federal court?”

Though neither of the attorneys on the panel was responsible for oral argument at SCOTUS, Reinwasser started out the discussion by saying, “It’s simple: she won, I lost,” and after a pause for the laughter of the 30 or so attending added, “But there’s lots of grey area in between.”

The Supreme Court justices did, indeed, decide that the law prevented states from suing on non-Indian land. “Congress has not abrogated tribal sovereign immunity from a State’s suit to enjoin gaming off a reservation or other Indian lands,” said Justice Elena Kagan in the majority opinion.

Many in Indian Country have perceived the ruling as supporting a strong policy on sovereign immunity. Tierney said, “At the time the cert petition was filed, it was based on the circuit split [a Tenth Circuit decision held differently], but by the time cert was granted it became a continued assertion that IGRA?did abrogate sovereign immunity, and broadened to a wholesale attack on the tribal immunity doctrine. We did not see that coming.”

What followed was a lively discussion along two lines: first, an assessment of the feasibility of some of the SCOTUS suggestions for how the casino could have been stopped, including an analysis of Ex Parte Young; and second, a broader discussion of the case law on the subject of tribal sovereign immunity.

Throughout, the attorneys politely disagreed with each other, using humor to ease conflict. When Kanji’s turn came, he started out by saying, “It’s terrific to have both the lawyers frame the issues and do so so civilly.”

Kanji was asked to give his opinion on what the Bay Mills decision would mean for the future. “It’s no secret that there was a great deal of concern about the case going in. Justice Kagan enunciated some principles of Indian Law, one of them being that Congress must be express in its intent to take away any of the powers given by previous law.”

He felt that the decision, however, left open some avenues for states to curtail Native American freedoms, including civil or criminal suits against tribal officials.

All three agreed that there remains uncertainty, and Tierney said humorously, “Considering all the issues, Lou and I probably have long term commitments from here on out.”

After the panel, the section presented its Tecumseh Award to Jeffrey Davis, an assistant U.S. Attorney in the Western District office.

Since 1995, Davis has served as the liaison between that office and the 11 federally recognized tribes within the Western District, helping to keep them safe in the context of jurisdictional barriers imposed by the large number and variety of federal laws governing such issues as criminal jurisdiction. During that time period he has prosecuted violent crimes in those communities as well, but he says, “By far, my most satisfying work has been through my liaison role.” 

As William Gregory, the Little Traverse Band’s Prosecutor, said in his introduction, Davis has fulfilled all of these roles with grace and humor, as well as humility.

Davis and his wife of 37 years grew up on the Turtle Mountain Reservation in North Dakota, and many of their family members remain on the reservation. “I always keeps this understanding at arm’s length, because... anything I do in Indian Country may very well affect me and my family personally,” Davis says.

He started out in private practice in New Mexico working on water adjudications, and then continued that work in Colorado. “In 1995,” he explains, “I moved to the Western District and have worked to better Indian communities since then, always approaching my work with the Tribes with a recognition of the sovereignty of the Tribe and sufficient deference to its elected officials.”

From 2011 to 2013, Davis was assigned to work on the Indian Law and Order Commission, created by the Tribal Law and Order Act of 2010. The Commission undertook a review of tribal justice systems in the U.S. and developed a comprehensive report, published at the end of 2013 (which can be found at  www.aisc.ucla.

edu/iloc/). “That experience has provided me with a more enlightened understanding of the issues that Tribal communities face... and  allowed me to gain a new understanding... that I can now utilize to the benefit of my work with the Tribes here,” he said.

Davis said he feels extremely honored to be included on the roster of winners of the Tecumseh Award, which include Michigan Supreme Court Justice Cavanagh,  former United Tribes of Michigan chair Matthew Wesaw, and the same Candy Tierney who spoke on the panel.

“Ultimately, my goal is to maintain open communication with each of the Tribes even when we run into difficult issues and sometimes impasses that seem impenetrable,” Davis says.

“By truly recognizing that each Tribe

is a separate sovereign with histori-

cal treaties to guide those commu-

nications and relationships, I think even the most difficult issues can be discussed and resolved with candor and effectiveness.” 

 

 

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