Native American leaders expressed frustration with federal oversight of oil and gas leases on public holdings near ancient Native American cultural sites and want to restrict natural gas development around Chaco Culture National Historic Park. (April 16)
A huge swath of the northwestern Lower Peninsula is not tribal reservation land, a federal judge has ruled in a long-running case where many area residents feared local zoning, regulation, law enforcement and taxation could have been thrown into chaos
A lawsuit brought against then-Michigan Gov. Rick Snyder in 2015 by the Little Traverse Bay Bands of Odawa Indians contended that a more than 300-square-mile area in Emmet and Charlevoix counties — including iconic Up North summer vacation destination communities such as Petoskey, Harbor Springs, Charlevoix and Cross Village — was already the tribe’s reservation land, as established in an 1855 treaty with the U.S. government.
Property owners and businesses in the region intervened in the suit, arguing against the reservation declaration.
“It’s a loss of state and local jurisdiction and control over tribal members within this whole geography,” said attorney Lance Boldrey, who represents the Emmet County Lakeshore Association, property owners from Harbor Springs to Cross Village, and the Protection of Rights Alliance, a coalition of business owners in the region.
He cited an example of the city of Harbor Springs, which has a long-standing policy against fast food restaurants in its downtown. “A tribal member who buys a lot on State and Main streets could put in a McDonald’s at the gateway of downtown, because local zoning doesn’t apply,” he said.
Transactions involving non-Indians could also end up in tribal courts if there was a dispute, if the other party in the transaction happened to be a tribal member, Boldrey noted.
In an Aug. 15 ruling in U.S. District Court in Grand Rapids, Judge Paul Maloney cited not only the 1855 treaty’s language, but previous treaties, the tribe’s own petitions to the U.S. government at the time, and the records of U.S. government treaty negotiators in the historical record.
“The Tribe asserts that their predecessors understood that a treaty requiring the United States to withdraw land from sale for their benefit created an Indian reservation. But when the Treaty is placed in the relevant historical context, it cannot plausibly be read to have created an Indian reservation, and the Tribe’s predecessors did not believe that it did so,” Maloney stated in his ruling.
Little Traverse Bay Bands administrators did not return messages left by the Free Press on Friday. In a 2016 interview, tribal chairwoman Regina Gasco-Bentley said the lawsuit sought to reassert the tribe’s autonomy and sovereignty in its historic home. She cited incidents where Michigan asserted jurisdiction in Indian child welfare matters on reservation lands, in purported violation of the federal Indian Child Welfare Act, and tribal members living in some regional townships who were not being exempted from state income taxes, which she also said was contrary to federal law.
“This would just clarify we have jurisdiction over our citizens within our reservation boundaries,” she said.
Maloney’s ruling on summary judgment, or without a full trial, is significant because four other federally recognized tribes in the state of Michigan were signatories to the 1855 treaty in question, and three other tribal groups seeking federal recognition descend from treaty signatories, Boldrey said.
“Had the tribe prevailed in this case, it would not have been limited to Emmet and Charlevoix counties,” he said. “This could have spread to several other parts of the state.”
If that sounds outlandish, consider that a case that could declare almost half of the state of Oklahoma as tribal reservation land has reached the U.S. Supreme Court, where justices, as they left for their summer break in late June, requested re-argument of the facts at a yet to be determined date.
In that case, Carpenter v. Murphy, a man convicted of first-degree murder and sentenced to the death penalty in Oklahoma in 2000 has appealed, noting he and the murder victim were members of the Muscogee (Creek) Indian Nation, and that the murder occurred in a part of eastern Oklahoma that had never been formally disestablished as “Indian country” by Congress. The state of Oklahoma, therefore, did not have jurisdiction to convict him, Patrick Dwayne Murphy contends.
The boundary dispute in Carpenter’s case involves 4,600 square miles of land, including most of Tulsa, the state’s second-largest city, the American Bar Association reported last year.
Whether the Little Traverse Bay Bands will appeal the federal district court decision is unknown. But Boldrey noted any successful appeal would send the case back to Maloney.
“We are hopeful that this is the end, given that the court engaged in such a thorough analysis of the tribe’s best evidence, and found it lacking,” he said.
Contact Keith Matheny: 313-222-5021 or firstname.lastname@example.org. Follow on Twitter @keithmatheny.
Read or Share this story: https://www.freep.com/story/news/local/michigan/2019/08/23/judge-rejects-bid-declare-up-north-tribal-land/2096993001/