Treaty Signed by Michigan Tribes Did Not Create Reservation, Appeals Court Says

CINCINNATI (CN) --- An appeals panel analyzed the text of an 1855 treaty between federal officials and the Little Traverse Bay Bands of Odawa Indians and concluded in a ruling released Tuesday that the document gave individual land ownership to tribe members, but did not create an Indian reservation.

The band, consisting of at least five distinct factions of Ottawa and Chippewa tribes, sued the state of Michigan in 2015 seeking a declaration the Treaty of 1855 created a reservation. According to court documents, the treaty "provided each head of the family with 80 acres of land, or each single person over 21 years of age with 40 acres of land."

U.S. District Judge Paul Maloney interpreted the language of the treaty to mean members of the tribe were given permanent "allotments" of land and he dismissed the suit in 2019. Maloney, an appointee of George W. Bush, determined the treaty did not create a reservation because it did not "create a federal set aside of land for Indian purposes."

The tribes appealed to the Sixth Circuit and the case was argued before a three-judge panel last December.

In Tuesday's decision, the Cincinnati-based appeals court agreed with Maloney's interpretation and ruled that while the 300 acres given to the Odawa Indians were "set aside" by the federal government, the land was not appropriated strictly for tribal purposes.

U.S. Circuit Judge Eric Clay, an appointee of Bill Clinton, expounded on the context of the treaty in his opinion, and pointed out that negotiations made it clear the land was intended to be owned by individual tribe members.

Clay noted a certain tribal leader "expressed anxiety" the government would reclaim the lands -- which had happened previously after similar negotiations -- but that government officials made assurances the members would be given titles to allotments of land.

The tribes argued correspondence from their leaders dated shortly after the treaty was signed that include the word "reservation" prove otherwise, but Clay pointed out the meaning of the word has changed over time.

"It is unclear in those letters," he said, "whether the tribal members and federal officials used the word 'reservation(s)' as a legal term of art under federal Indian law, or as it was used in common parlance."

Clay proceeded to discuss whether the lands have been under "federal superintendence" since they were titled to tribe members, another component in the establishment of a reservation, and ultimately determined the government exercised little or no control over the allotments.

He admitted residents on the land have received federal aid in the form of health, education, and welfare benefits, but pointed out these disbursements "are not indicia of active federal control over the tribe's land."

Clay emphasized the tribes made clear when they signed the treaty they did not want the federal government intruding on their lands or exercising any control over their activities.

"Indeed, tribal members made repeated requests during treaty negotiations to have title to land that would be equal to that of their white counterparts," he wrote. "And like their white counterparts, the band wanted to become citizens and pay taxes."

The struggle of the tribes was apparent to the panel, and Clay was quick to point out the difficulty of analyzing a treaty signed nearly two centuries ago.

However, the judge remained steadfast in his determination not only that tribe members did not create a reservation when they signed the treaty, but that they explicitly wanted individual allotments to allow for individual ownership of the land.

"It is not lost on this court," he concluded, "that those decisions were not made in haste or without forethought. In light of those decisions, we reviewed the agreements the band signed in 1836 and 1855 and sought to determine how the band would have understood them. The band chose to provide allotments of land for their members, not a reservation for the tribe."

Clay was joined on the panel by Senior U.S. Circuit Judge Alice Batchelder, a George H.W. Bush appointee, and U.S. Circuit Judge John Bush, an appointee of Donald Trump, both of whom concurred with his opinion.

Neither party immediately responded to a request for comment.

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