Tribe Spars With Michigan Over Whether Treaty Created Reservation

The Potter Stewart U.S. Courthouse in Cincinnati, home of the U.S. Circuit Court of Appeals for the Sixth Circuit. (DAN SEWELL/Associated Press)

CINCINNATI (CN) — A tribe of Native Americans argued before the Sixth Circuit on Tuesday that a treaty signed with the U.S. government in 1855 created an Indian reservation that must be honored by the state of Michigan.

The Little Traverse Bay Bands of Odawa Indians sued Michigan Governor Gretchen Whitmer in 2015 in pursuit of a declaration that a 300-square-mile tract of land in the Wolverine State was designated a reservation more than 165 years ago and remains so today.

U.S. District Court Judge Paul Maloney, a George W. Bush appointee, sided with Whitmer, and ruled the treaty never established a reservation because the tribe’s ancestors “bargained for — and received — permanent homes in Michigan in the form of individual allotments.”

The treaty was the result of extensive negotiations that began in 1836 between the Bands of Odawa Indians and both federal and state officials, and involved monetary payments as well as land deeds.

In his opinion, Maloney analyzed the text of the treaty and determined the end result of the negotiations did not “create a federal set aside of land for Indian purposes,” but instead allowed individual members of the tribe to own individual parcels.

Maloney accused the tribe of cherry-picking citations from previous court rulings pertaining to Indian reservations, and called its analysis of the treaty “flawed.”

“[The tribe] has proffered pages upon pages of this hit-and-run argumentation, leaving the court to run down each of the quotes, to be placed in the proper context, and to then ascertain what the ‘fact’ is that should be drawn from the proffered citation. This is plainly insufficient,” he wrote.

In its brief to the Sixth Circuit, the tribe pushed back against Maloney’s interpretation and argued the “allotment” technique used in the treaty has been ratified by the Supreme Court, specifically in its 1973 decision in Mattz v. Arnett.

“The district court,” the tribe said in the brief, “misconstrued every material provision in the treaty contrary to its text and long-settled Supreme Court precedent … [and] dismissed volumes of historical evidence reinforcing the reservation status of the band’s land based on that same error.”

Attorney David Giampetroni argued on behalf of the tribe before a Sixth Circuit panel Tuesday and claimed the treaty explicitly referred to the land in question as a reservation at least twice.

“The text set forth a defined tract … and appropriated it for the bands,” Giampetroni said.

He repeatedly cited the 2020 Supreme Court decision in McGirt v. Oklahoma, a case that reclassified large portions of Oklahoma as Indian land.

U.S. Circuit Judge John Bush, a Donald Trump appointee, asked about the differences between a reservation and an allotment, and asked Giampetroni if the tribe exercised governance over the lands.

Giampetroni cited his client’s brief, which he said includes numerous letters sent from tribal leaders to the federal government after they took possession of the land.

“They very much retained their traditional tribal structure,” Giampetroni said.

Attorney Shoshie Levine of the Michigan Attorney General’s office called the tribe’s case an “unconvincing attack on the treaty.”

Levine told the panel no Indian land was created by the treaty because it did not “set aside” land, but rather withdrew plots from sale to the public to allow tribe members to obtain titles to the property.

She also cited the decision in McGirt, but told the panel the high court’s ruling explained that the mere mention of the word “reservation” in a treaty does not classify the land as Indian because of an evolution of the word’s definition over the years.

Bush asked the state’s attorney about the governance of the land and referenced Giampetroni’s claim of continued tribal control.

Levine disputed her counterpart’s argument and said local governments imposed taxes on the lands, while noting there was a “complete absence of federal superintendence” after the treaty was signed.

She said the tribe’s strategy during negotiations was to obtain titles to the land — not create a reservation — and lauded its ancestors for accomplishing their goal at a time when they were at a severe disadvantage.

Attorney Jeffrey Gerish argued on behalf of several municipalities that intervened in the suit. He echoed Levine’s point.

“None of the Indians wanted a reservation,” he said. “No part of the treaty creates a reservation.”

Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, and U.S. Circuit Judge Eric Clay, a Bill Clinton appointee, also sat on the panel.

No timetable has been set for the court’s decision.

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