Asked and Answered . . .

Jana Simmons on the Odawa Treaty Dispute

By Steven Thorpe
Legal News

The Little Traverse Bay Bands of Odawa Indians is suing the state in federal district court, saying treaties from the 1800s give the tribe sovereignty over 337 square miles of land and 103 miles of shoreline in the northern Lower Peninsula. The tribe, formally recognized 22 years ago, filed suit in 2015 in Kalamazoo federal court. If a judge decides a reservation was established, most of Emmet County, part of Charlevoix County, the cities of Petoskey, Harbor Springs, Good Hart, part of Charlevoix and two Lake Michigan islands become part of the Tribe’s reservation. Jana Simmons of Wilson Elser’s Michigan office focuses her practice on federal Indian law, tribal law, and complex civil litigation. Licensed to practice in several tribal courts, state and federal courts, she assists tribal governments and indigenous organizations, their members and their communities with matters including economic development, membership disputes, constitutions, tribal ordinances, federal Indian law and defending tribes in civil lawsuits.

Thorpe: Give us a historical perspective on this case. How did we get to the current situation?

The aboriginal lands of the “Ottawa” – or “Odawa” as the French called them – included significant portions of the Lower Peninsula along the Great Lakes. Historical accounts place large numbers of Odawa at “L’Arbre Croche,’”or “land of the crooked tree.”  We now identify this area as lands surrounding Little Traverse Bay.

As federal expansion policies and white settlers sought new frontiers (often the lands of Native Americans, including the Odawa), tribes ceded their aboriginal lands to the United States in exchange for goods, services and federal protection. This is one of those areas that is often misunderstood — reservations were not a gift from the federal government to tribes. Rather, being recognized as sovereign, numerous tribes gave away enormous chunks of lands to the United States, reserving small portions for themselves. Imagine owning a 1,000-acre plot and selling off 999 acres.

In the instance of the Little Traverse Bay Bands of Odawa, the tribe claims it reserved certain pieces of its homelands via the 1855 Treaty of Detroit with the United States. The question is whether the boundaries of its reservation ever were diminished by some language in the treaty or by some subsequent act of Congress. In other words, do you really still own all that prize 1 acre you kept?

Thorpe: What are the basics of tribal sovereignty and its jurisdictions?

Tribal sovereignty and jurisdiction are well recognized in our federal law. However, by no means are these doctrines without significant complexity. 

Speaking legalese, tribal sovereignty and jurisdiction are rooted in the Marshall trilogy — three cases authored by Chief Justice John Marshall of the United States Supreme Court in the 1800s that establish tribal governments as “domestic dependent nations” with attributes of sovereignty subject only to the plenary power of Congress. These cases are also the bedrock for tribal versus state jurisdiction.

A casual conversation about tribal sovereignty and jurisdiction goes more like this:

Q. How come the state circuit court won’t take my appeal from tribal court?  I don’t like the decision.

Would an Ohio court take an appeal from a Michigan court?

Q. You can’t trust tribes because they get immunity from lawsuits.

That’s government immunity. States and municipalities have immunity too, unless, of course, they allow you to file a lawsuit against them. Numerous tribes have passed tribal ordinances that offer similar immunity-exceptions.

Q. The Tribe is trying to put my land in Indian Country … they’ll start taxing me and next thing you know I’ll have no property rights!

Contrary to popular belief, while tribes can regulate non-Indians who own property within their reservations, their authority is quite limited. Many people don’t realize that it is common for non-Indians to own land on a reservation and history explains why.  Google “Dawes Act,” “allotment” and “checkerboard.”

Thorpe: Tell us about “diminishment,” the process by which the federal government can reduce the size of a reservation.

Only Congress can diminish or disestablish a reservation. However, its intent to do so must be “clear and plain.”  It goes without saying that “congressional purpose” is the “touchstone to determine whether a given statute diminished or retained reservation boundaries.”  South Dakota v Yankton Sioux Tribe, 522 U.S. 329 (1998). 

While this analysis appears simple enough, often times the statute or congressional act at issue — possibly more than a century old — isn’t so clear on its face so courts may turn to history, including the circumstances surrounding the creation of a reservation, the demographics of the land or how the land was categorized by government officials, in order to determine the requisite intent.  Just because a reservation was opened by Congress for settlement by non-Indians does not necessarily mean that Congress intended to diminish it. This could explain why so many reservations remain intact, yet the lands within those boundaries are owned by non-Indians.

Thorpe: How would a ruling in favor of the tribe affect non-Indian property owners within the reservation boundaries?

There aren’t always bright-line rules on whether a tribe can regulate non-Indians living on a reservation. However, there are a few guiding principles. First, tribes do not have the power to regulate a non-member’s activity, save two exceptions established in Montana v United States, 450 U.S. 544 (1981). One exception is where non-members enter into “consensual relationships with the tribe or its members through commercial dealing, contracts, leases or other arrangements.” The other is where non-member “conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

For many non-Indian property owners, this language is scary because, conceivably, just about anything could fall within one exception or the other. However, courts have routinely interpreted these exceptions quite narrowly and there are numerous cases on the books where tribes presented seemingly solid evidence demonstrating a “consensual relationship” or proving harm to the tribe, yet the courts disagreed. Moreover, when it comes to crimes, tribes have extremely limited jurisdiction over non-Indian perpetrators.

Another area of concern is that “the tribe can put a casino in my neighborhood.” Certainly, you can’t blame someone for not wanting the traffic, noise or stigma of an entertainment venue in their back yard.
However, tribes do not have the power to plop grand-scale casinos anywhere and everywhere. Tribal gaming involves an extensive vetting process, strict compliance with federal law and cooperation with state and local government, not to mention the feasibility aspects.

I tend to think that should the Tribe prevail in its lawsuit, things will generally continue as status quo, perhaps a nuance here or there. The demographics — non-Indian land owners, vacationers and tourists, businesses, municipal and county governments — are well established in the region and drastically upsetting the status quo presents significant risk and on-going conflict for the Tribe.  Reading the Tribe’s complaint, I suspect that it may be more focused on the protection and the extension of services to its own membership rather than disrupting and sparking controversy with local governments and non-Native property owners. Affirming the boundary gives the Tribe this reach.

Thorpe: What would be the potential benefits for non-Indian businesses in partnering with tribal businesses or the tribal government?

The potential advantages of partnering and exploring business opportunities with tribal or Native-owned businesses are hugely overlooked. It is ironic to me that our current federal policy is to keep jobs in the United States by slashing incentives offered to companies looking overseas. However, in many respects, tribes are poised to offer similar incentives and competitive advantages to businesses and manufacturers — right here in the United States. These incentives, to name a few, may include tax credits, tax exemptions, advantages when calculating depreciation deductions, reduction or possibly the elimination of duties on imports and exports and pass-through savings for non-Native leaseholders of buildings on tribal land. The Navajo Nation is currently structuring a comprehensive and highly competitive incentive plan to attract non-Native businesses and manufacturers to its reservation as an alternative to establishing operations overseas.

Thorpe: How long do you think it will take for the case to play out and — roughly — what’s the batting average so far for tribes in similar cases?

Diminishment lawsuits have the potential to become incredibly fact-intensive, particularly because much of the relevant evidence may be hiding in thousands of documents and behind events that date back a few hundred years. Gathering, presenting and interpreting the evidence is not an easy task for the parties’ legal counsel or the court. Discovery is time-consuming and with significant, competing interests at stake, this case may continue into 2019 and beyond.

Moreover, these cases tend to be fact-specific so while you may have case law precedent establishing how courts analyze questions involving diminishment, more likely than not, there is no other case that is factually identical to the one presented by the Little Traverse Bay Bands of Odawa Indians.  The situation of the Tribe is unique, making it difficult to gauge the likelihood of success in comparison to other diminishment cases. However, knowing the challenges presented in these types of lawsuits — everything from the cost and burden of such litigation to dealing with fierce public opposition — I imagine the Tribe would not have embarked on this lawsuit unless it believed it had genuine merit.

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