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Emmet County Lakeshore Association and The Protection of Rights Alliance
Litigation Update: Little Traverse Bay Bands of Odawa Indians v. Whitmer, U.S. Sixth Circuit Court of Appeals
September 26, 2019


On Thursday, August 15, 2019, U.S. Federal District Court Judge Paul Maloney issued an order dismissing the Tribe's case, and a 51 page opinion explaining why there is no basis for the Tribe's claim that the 1855 Treaty between the Tribe's predecessors and the United States established a permanent Indian reservation for the Tribe. Despite the strength of Judge Maloney's opinion, the Tribe filed its Notice of Appeal in the United States Sixth Circuit Court of Appeals on Friday, September 13, 2019. Additionally, and as further evidence of the depth of the Tribe's commitment to seize jurisdictional control over the contested area, the Tribe has now engaged of one of the nation's most well-regarded and experienced Indian law appellate lawyers, Riyaz Kanji. http://www.kanjikatzen.com/riyaz-kanji/

Considering the Tribe's substantial investment in this case, it was expected to appeal the District Court's decision. On appeal, the Tribe will argue that errors were made by the District Court. However, the Tribe cannot raise new arguments in support of its case on appeal. Instead, the Tribe must argue that, given the record at the District Court, a different result should have been reached. If the Sixth Circuit finds that there was enough evidence to raise a genuine issue of material fact necessitating trial or that the District Court employed the wrong law in its analysis, the Sixth Circuit will reverse and the case will be returned to Judge Maloney for a trial. Therefore, if successful at the Sixth Circuit, the Tribe would likely only win the opportunity to present its evidence at trial in front of the same judge who dismissed the case.

The appeal process begins with the Notice of Appeal, followed by the completion of administrative procedures, which could take months. After such procedures are complete, the Sixth Circuit will issue a schedule setting forth due dates for the parties' briefs. These dates are subject to change if circumstances arise justifying postponement. First, the Tribe will submit a brief explaining why it feels the District Court committed an error in dismissing its case. Second, the defendants will all have an opportunity to file briefs in response, explaining why the District Court was correct and that it reached the right result. Finally, the tribe is allowed a final, short brief to respond to any of the defendants' arguments. After briefing is concluded, the Sixth Circuit may allow oral argument, but this is not guaranteed, and a decision should follow thereafter. While it is difficult to estimate exactly how long the process will take before the Sixth Circuit issues a decision on this matter, we expect it to take well over a year, possibly two.

The victory achieved at the District Court level would not have been possible without your extraordinary commitment. Your willingness to join the fight to preserve the character and culture of the area is so greatly appreciated. The Protection of Rights Alliance and the Emmet County Lakeshore Association are profoundly grateful for your continuing support!


Emmet County Lakeshore Association and Protection of Rights Alliance Litigation Update:
Little Traverse Bay Bands of Odawa Indians v. Whitmer, U.S. Federal District Court
August 20, 2019


On Thursday, August 15, 2019, U.S. Federal District Court Judge Paul Maloney issued an order dismissing the Tribe’s case, and a 51 page opinion explaining why there is no basis for the Tribe’s claim that the 1855 Treaty between the Tribe’s predecessors and the United States established a permanent Indian reservation for the Tribe.

The Court’s order granted motions for summary judgment filed by the various defendants, including ECLA and PORA. Motions for summary judgement ask a court to dismiss a case on the basis that the record created does not show any genuine dispute as to material facts and that the party filing the motion is entitled to judgment as a matter of law. Stated another way, to grant such a motion, the court must find that no reasonable fact finder could find for the plaintiff, or that the plaintiff’s case is legally defective. Motions for summary judgment must therefore clear a high bar.

First, the Court had to decide whether the 1855 Treaty should be interpreted on its face, as the defendants urged, or whether to consider the Tribe’s historical evidence. At oral argument, the Tribe argued that the 1855 Treaty would have been understood by the Indians in 1855 to have established a large reservation for the Tribe in common, within which band members could select individual allotments. Although the Court declined to interpret the 1855 Treaty on its face, as defendants urged, the Court concluded that “the 1855 Treaty simply cannot bear the construction that the Tribe would place on it, especially considering the historical context.”

Next, the Court was to decide what legal standard to use when determining whether the 1855 Treaty established a permanent Indian reservation. The defendants all advocated that the Court use a well-established test for “Indian Country,” which requires (i) land be validly set apart, (ii) for the use of the Indians as such, (iii) under the superintendence of the federal government. The Tribe advocated for a more “flexible” test under which any federal action setting aside land for any Indian purpose creates a permanent reservation. The Court found that the law supported the defendants’ position.

The Court then analyzed the historical evidence to determine whether it could support the Tribe’s theory. Drawing from the thousands of pages of documents and briefs filed with the Court, Judge Maloney engaged in a detailed review of the objectives of the Tribe’s predecessors and the United States for the 1855 Treaty, what transpired during negotiations, and what occurred after the 1855 Treaty was executed.

The Court also analyzed the language of the 1855 Treaty to determine whether it met the standard to create Indian Country. The Court found the language of the Treaty set forth a detailed plan under which the federal government would withdraw large swaths of land for various bands so that individual band members could make individual land selections, for a period of five years. The individual band members would receive title to their selections. A second five-year period was to take place during which individual band members could purchase additional land before the unselected lands were restored to the market for sale to the public. The Court concluded that nothing in the 1855 Treaty indicated any intent to set aside land for a permanent Indian reservation. Moreover, the 1855 Treaty contemplated a lack of federal involvement with the land once the terms of the 1855 Treaty were executed. In reality, the federal government had no ability to regulate the lands once titled and could not prevent the band members from disposing of it, such as selling it to white settlers or acting as strawmen to make purchases for white settlers. The Court concluded that there was no ongoing federal superintendence over the land contemplated by the 1855 Treaty. Thus, the reservation test was not met.

The Court then turned to the Tribe’s specific arguments, set forth in its brief, at oral argument, and through evidence submitted to the Court. The Court found the Tribe’s brief insufficient to set forth any cohesive argument connecting its purported evidence to its theory of the case, and pointed out that the Tribe’s lawyers made repeated misleading statements regarding what certain documents stated or what proposition they supported. The Court debunked the Tribe’s arguments regarding allegedly ambiguous terms in the 1855 Treaty, explaining that once read in context with the remainder of the Treaty, their meaning was apparent. Neither was the Court persuaded by the Tribe pointing to historical documents in which the area withdrawn from sale was referred to as a “reserve” or “reservation.” The Court explained that to a layman or to someone unfamiliar with the terms of the Treaty, the withdrawn area likely had many of the same characteristics of an Indian reservation before the land was restored to sale. But using these terms colloquially does not indicate that the signatories of the 1855 Treaty ever intended for there to be a permanent set-aside of land for Indian purposes because the historical context as a whole suggested otherwise. Finally, the Court explained that the Tribe’s technical interpretation of the 1855 Treaty did not comport with the Treaty’s actual language.

Overall, Judge Maloney’s opinion was very strong in favor of the defendants’ position that the 1855 Treaty did not permanently set apart land for the Tribe under federal superintendence. Other than agreeing that the Court needed to examine the evidence produced in discovery, the Court did not appear to find any of the Tribe’s legal or factual arguments persuasive.

Considering the Tribe’s substantial investment in this case, we believe it is likely to appeal the Court’s decision. The Sixth Circuit Court of Appeals may review the defendants’ motions in light of the record to determine whether Judge Maloney reached the right decision. If the Sixth Circuit finds that there was enough evidence to raise a genuine issue of material fact necessitating trial or that the Court employed the wrong law in its analysis, the Sixth Circuit will reverse and the case will be returned to Judge Maloney for a trial. Therefore, if successful at the Sixth Circuit, the Tribe would likely only win the opportunity to present its evidence at trial in front of the same judge who dismissed the case. It is our sincere hope that the Tribe will not do so.


ORAL ARGUMENT SCHEDULED
June 3, 2019


Judge Maloney has schedule oral argument on the Motions for Summary Judgment starting the morning of June 24, 2019 and running through Thursday June 27, 2019. This could flag the judge is ready to make a decision on the case or simply that it will take this many days to address some 175,000 pages of expert testimony and document submitted todate.


TRIBE'S CASE STATUS LETTER UPDATE
March 27, 2019

Read the update here (PDF).


LTBB V SNYDER UPDATE
FEBRUARY 1, 2019

On January 31, 2019, Judge Maloney of the U.S District Court for the Western District of Michigan, issued two orders LTBB v. Snyder.

The first order denied without prejudice the Tribe’s motion for partial summary judgment. In that motion, the Tribe urged the Court to find that Congress’ 1994 reaffirmation of the Tribe’s status also restored any rights that had been diminished or abrogated -- including the existence of a supposed reservation -- despite 1870’s Congressional Acts that gave rise to the “diminishment/disestablishment defense.” Essentially, the Tribe argued that the 1994 Act wiped away any Congressional acts or actions of the federal government that in any way negatively affected the Tribe’s rights between 1855 and 1994.

Central to Judge Maloney’s decision was the fact that the Tribe’s motion assumes a Court ruling that the reservation still exists. Judge Maloney stated that “[t]he [1994] Reaffirmation Act only becomes relevant once it is determined that a reservation was created and that it was subsequently diminished or disestablished.” The Court has yet to resolve this initial question, so it dismissed the Tribe’s motion as premature. The Court viewed this as a matter of case management, and could revisit the argument later.

The second order denied the city and county defendants’ motion for judgment on the pleadings. This motion focused on the Indian Claims Commission (ICC) and argued that the Tribe’s reservation claim fails under the doctrines of judicial estoppel, issue preclusion, and the ICC Act’s statute of limitations. The city and county defendants’ argument was based on the notion that, in obtaining compensation for underpayment of land sold by the Tribe’s predecessors, the Tribe’s predecessors conceded that all of the land being claimed as a reservation had been sold, and they could not now assert that the land is a reservation. The Associations, like the other defendants, concurred in the relief sought by the city and county defendants, recognizing, however, that there is a distinction between claims for title to land (which would be clearly precluded) versus claims regarding jurisdiction over lands that are non-tribally owned (which is how the Tribe characterizes this case).

The city and county defendants first argued that judicial estoppel barred any reservation claim because during certain proceedings of the ICC, the Tribe was compensated for its lands and if the Tribe retained a reservation from its ultimate award at the ICC, the United States government would have been entitled to a set-off to deduct the value of such reservation. It did not. Judge Maloney rejected this claim because, he said, it “cannot be said with certainty” that the parties at the ICC understood that the claims at issue may have encompassed the right to exercise jurisdiction over the land in question (as opposed to just title).

The city and county defendants’ issue preclusion argument was rejected largely for the same reasons. The Court found that the Tribe’s right to a reservation under 1855 Treaty was never “actually litigated” at the proceedings of the ICC.

Lastly, the Court held that the ICC Act’s statute of limitations did not bar the Tribe’s reservation claim. Judge Maloney reasoned that (1) the ICC lacked authority to decide the jurisdictional claim now brought by the Tribe, (2) the ICC would not have been able to hear claims for relief against the State of Michigan (it is limited to adjudicating claims against the United States), and (3) that the Tribe’s claim does not fall under any of the five general categories the ICC was authorized to adjudicate. The Tribe’s case, rather, arises from the State of Michigan’s failure to recognize the Tribe’s alleged reservation. Accordingly, the Court denied this motion.

The Court’s decisions on these motions represents only the first step of determining whether the case will proceed to trial. The primary motions for summary judgment—to rule in the defendants’ favor without a trial—are due in mid-March of this year, with argument before the Court to take place in late June. Should a trial be necessary, the Court has indicated that it will likely be scheduled to begin sometime in 2020.


ODAWA LAWSUIT UPDATE
JANUARY 21, 2019

In early 2018, the parties concluded depositions of the twelve experts in this case who produced expert reports and rebuttal reports containing thousands of pages of analysis and exhibits. Depositions involved hundreds of exhibits, and required the parties to travel to Minnesota, Michigan, Illinois, and Kentucky. In total, depositions of experts consumed a full 26 days of actual deposition time, and many, many more days of preparation.

In March of 2018, the Tribe filed a significant dispositive motion asking the court to disallow one of the key defenses raised by all defendants in the case – that even if a reservation was created by the 1855 Treaty, it was disestablished when Congress in the 1870s restored lands to the public market. The Tribe claims that the 1994 Act of Congress reaffirming the Tribe’s status nullified any action the federal government might have taken to abrogate or diminish any right or privilege of the Tribe. Defendants have filed briefs in opposition to and responding to this motion. The motion was argued on December 18, 2018. We are awaiting a decision on the motion from the judge.

In the meantime, discovery disputes continue. The Tribe is seeking virtually every report the Association’s expert has ever written – even for other clients of the expert, under confidentiality agreements, and for completely unrelated issues. The defendants in the case are opposing and defending against this legal tactic by counsel for the Tribe. The Court has directed further briefing on those motions.

As the level of ongoing activity demonstrates, the case is demanding significant resources. The Tribe has continued to add lawyers, drawing upon the Tribe’s in-house and regular counsel, an Indian-law specialty firm from Minneapolis, and an Indian-law professor from the Hamline Law School. All told, the Tribe’s legal team now numbers twelve attorneys who have filed appearances with the Court (and possibly others behind the scenes), with four tribal lawyers attending a single deposition. It continues to be apparent that the Tribe is sparing no expense in this case.

The defense team of lawyers for The Protection of Rights Alliance (PORA), Emmet County Lakeshore Association (ECLA), the State, and the affected counties, cities and townships continue to mount a coordinated defense, with experts, lay witnesses and attorney arguments all emphasizing different points and issues in responding to the Tribe.

The Tribe is asking the court to recognize it as a sovereign nation, not subject to any state law or local ordinance. The leadership of PORA is very thankful to individuals and businesses who have contributed to the financial support of our successful defense in this case. We have had tremendous financial support but, as you can see, the litigation is very expensive and we continue to incur substantial legal and expert witness bills. Your continued financial help is needed and appreciated.

Contribution towards funding the defense in the litigation may be made to:

The Protection of Rights Alliance Foundation
c/o Sara Smith, CPA
321 S. Spring Street
Harbor Springs, Michigan 49740

 

 

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