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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.