Little Traverse Bay Band Indians v. Whitmer

398 F.Supp.3d 201

LITTLE TRAVERSE BAY BAND OF ODAWA INDIANS, Plaintiff,

v.Gretchen WHITMER, et al., Defendants.

No. 1:15-cv-850

United States District Court, W.D. Michigan, Southern Division.

Signed August 15, 2019

Amy Elizabeth Kania, Andrew Adams, III, Colette Routel, Jason Dean Decker, Leah Kay Jurss, Peter John Rademacher, Shauna L. Coons, William A. Szotkowski, Jessica S. Intermill, Hogen Adams PLLC, St. Paul, MN, Donna L. Budnick, Little Traverse Bay Bands of Odawa Indians, Harbor Springs, MI, James A. Bransky, Traverse City, MI, for Plaintiff.

Elizabeth Anne Morrisseau, Jaclyn Shoshana Levine, Kelly Marie Drake, Laura Rose LaMore, Michigan Department of Attorney General, Lansing, MI, for Defendants.

OPINION

Paul L. Maloney, United States District Judge Plaintiff, the Little Traverse Bay Band of Odawa Indians (the "Tribe") claims that in 1855, the United States entered a treaty with its predecessors and created an Indian reservation spanning more than 300 square miles in the Northwest portion of Michigan's Lower Peninsula. The Tribe seeks a declaratory judgment from the Court that the claimed reservation has continued to exist to this day and has not been diminished or disestablished by any government action.

The matter is before the Court on the Defendant's and Intervenor-Defendants' motions for summary judgment. Collectively, the Defendants assert that summary judgment is warranted on the Plaintiff's claim for a declaratory judgment and injunctive relief because no Indian reservation was ever created, or in the alternative, any reservation created was subsequently diminished.

First, a word on structure. Whether a reservation was created depends upon the construction of an 1855 treaty between the United States and the Tribe's political predecessors. But treaties between Indian tribes and the United States are not interpreted like other international compacts, other laws, or even other contracts. Instead, when construing an Indian treaty, the Court must "look beyond the written words to the larger context that frames the Treaty, including ‘the history of the treaty, the negotiations, and the practical construction adopted by the parties.’ " Minnesota v. Mille Lacs Band of Chippewa Indians , 526 U.S. 172, 196, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999) (quoting Choctaw Nation v. United States , 318 U.S. 423, 432, 63 S.Ct. 672, 87 L.Ed. 877 (1943) ). Once versed in the relevant history, "[c]ourts cannot ignore plain language that, viewed in historical context and given a ‘fair appraisal,’ runs counter to a tribe's later claims." Or. Dep't of Fish & Wildlife v. Klamath Indian Tribe , 473 U.S. 753, 774, 105 S.Ct. 3420, 87 L.Ed.2d 542 (1985).

But ultimately, for the reasons to be explained, the Court concludes that, after a review of the entirety of the historical record, summary judgment is warranted on the Tribe's claims because the 1855 treaty cannot plausibly be read to create an Indian reservation, even when giving effect to the terms as the Indian signatories would have understood them and even when resolving any ambiguities in the Treaty text in favor of the Indians.

I.

Historical Background & The Treaty of 1836 .

The Little Traverse Bay Band of Odawa Indians is a federally recognized Indian Tribe that traces its origins back to the Odawa Indians that inhabited land in what is now northern Michigan. The Odawa were first encountered by European explorers in 1615, and they continued to occupy the northwest corner of Michigan's Lower Peninsula and portions of the Upper Peninsula in the centuries that followed.

The Indian tribes in Michigan began ceding territory to the United States in the 1820s and continued in the following decades. By the 1830s, the federal government, under the Jackson Administration, centered government policy on securing treaty cessions of land from Indians, removing Indians to lands further West, and encouraging non-Indian settlement as the United States expanded westward.

In Michigan, this sentiment culminated in the Treaty of 1836 (the "Treaty of Washington") because the Odawa and Chippewa Indians became aware of the United States' removal policy and attempted to negotiate an exchange of their lands for money and the right to remain in Michigan. In a petition to the Secretary of War (who was at the time responsible for government policy relating to the Indian people), representatives stated that the principal objects of their visit were to "make some arrangements" with the government for "remaining in the Territory of Michigan ...." (PageID.8087–8088.) The petition acknowledged that the Odawa did not want to remove to the west of the Mississippi but offered to sell portions of their lands "with some reserves." (Id. ) The Bands also emphasized that they wished to assimilate into the culture of the white settlers and sought assistance to do so through various forms of education. (Id. )

Shortly after receiving the petition, Secretary of War Cass privately acknowledged that the Chippewa and Odawa lands in Michigan were not a priority, as the United States did not contemplate the settlement of northwestern Michigan by white settlers in the near future. Nevertheless, he directed Indian Agent Henry Schoolcraft to negotiate with the Odawa and Chippewa Tribes in the area to do "full justice" to the Indians, but at the same time, "procure the land on proper and reasonable terms for the United States." (PageID.8096.) Cass instructed Schoolcraft that he could "allow no individual reservations[ ]" to the Indians and was to extinguish Indian title to the extent possible. (Id. ) Finally, if necessary, particular bands were to be allowed to remain on reservations, but their tenure was to extend only until the United States decided to remove them. (Id. )

With the foregoing instructions, Schoolcraft negotiated the Treaty of Washington. First, Schoolcraft consolidated the Chippewa and Odawa Indians into a single (and artificial) political entity for purposes of the treaty negotiations because these separate tribes were generally interspersed, such that the land cessions Schoolcraft sought could not be achieved without having both tribes at the bargaining table.

Generally, the Indian bands who were party to the Treaty agreed to cede aboriginal title to approximately 13,837,207 acres of land within the Northwest Lower Peninsula and a portion of the eastern Upper Peninsula of Michigan. In exchange, they were to receive six reservations within Michigan, to be "held in common," including a 50,000-acre reservation on Little Traverse Bay, various annuities and payments of debt, and other improvements such as schoolhouses and blacksmiths. Additionally, the Treaty of Washington contained provisions for the removal of the Bands from Michigan to the lands "West of the Mississippi," and the United States agreed to provide suitable lands there and to pay for the Tribe's move and for one year of subsistence.

When the Treaty of Washington went to the Senate for ratification, the Senators unilaterally altered the terms. Most importantly, the Senate added language rendering the reservations effective for only five years. ("For the term of five years from the date of the ratification of this treaty, and no longer, unless the United States grant them permission to remain on said lands for a longer period.") In exchange for this new five-year limitation, the Senate provided for a principal sum of $200,000, to be paid "whenever their reservations shall be surrendered," and until that time, the Bands would receive yearly interest payments. Schoolcraft was then tasked with persuading the signatory Bands to agree to the Senate Amendments to the Treaty. While they "strenuously opposed" the modifications, (PageID.10689), they were satisfied that the lands would not be needed for settlement for many years and that they would be allowed to remain until that time. (Id. ) Thus, Bands approved the Articles of Assent and the treaty gained legal force. (PageID.6878.)

Events Between 1836 and 1855 .

Once the Treaty of Washington was ratified, the Odawa and Chippewa sought other means to stay in Michigan. In 1839, the Chippewas of Little Traverse Bay wrote to the Governor of Michigan, Stephen Mason, to ask whether they would be allowed to become citizens if they made individual purchases of land from the United States, as other Indian groups near Kalamazoo had done. (PageID.8132–34.) Specifically, the Chippewa asked: (1) whether it would have the right to buy lands from the government; (2) whether those who wished to conform to the laws of Michigan would be allowed by the State to remain; (3) whether such Indians would be considered citizens; and (4) whether they could purchase the lands at Little Traverse Bay where they presently resided. (Id. ) There is no record of Governor Mason's response.

However, it appears that both the state and federal governments took a permissive attitude towards Indian land ownership. By 1848, the Acting Superintendent of Indian Affairs noted that the Odawa had been "making great efforts to secure themselves permanent homes" along Lake Michigan by "purchasing lands along the rivers and bays of the lake; their position enables them, with moderate efforts, to live well; ... Some of the bands desire to participate in the privileges of citizenship and have presented a petition asking that the subject should be brought to the notice of the State government." (PageID.8164–8166.); see also United States v. Michigan , 471 F. Supp. at 242 ("One way the Indians began to cope with [the uncertainty of removal] was to buy land in fee. The missionaries encouraged these purchases and some Indians used annuity money from the 1836 treaty to buy land.").

And more generally, the state government was receptive to the continued presence of Indians in Michigan. For example, the Michigan Legislature ratified the Michigan Revised Constitution in 1850, which allowed for persons of Indian descent to vote, so long as they were "civilized."...