Carcieri and Its Potential Impact on Michigan Indian Tribes

I’m not going to add much to Bryan Newland’s reasonable commentary on the Carcieri decision, and my overall views will be in Indian Country Today on Thursday.

This post is about the potential impact of Carcieri on Michigan Indian tribes. I want to emphasize that this case may have significant potential impacts for Michigan tribes. The Grand Traverse Band in particular extensively cooperated with the Tribal Supreme Court Project substantively from the time this case first appeared in the First Circuit; one wouldn’t necessarily know that from the opinion and the pleadings, which are all under the banner of the National Congress of American Indians. NCAI owes GTB a great deal here for the risk it took.

GTB, as a tribe somewhat similarly situated to the Narragansett Tribe, had a great deal to lose by popping their heads up and taking a stand in this case. The Court could have come down with a much harsher bright-line rule. One should realize how this case could have — and may still — be a serious blow to the Grand Traverse Band and other tribes like them.

Here are my thoughts on the potential impact on Michigan Indian Tribes:

Hannahville/BMIC/KBIC/Saginaw Chippewa — These tribes, all federally recognized in 1934, have nothing to fear. The Secretary of Interior considered them “under Federal jurisdiction” in 1934 and held Secretarial elections for them on whether to reorganize under the IRA.

Sault Tribe/Lac Vieux Desert Band — These tribes likely have nothing to fear from Carcieri. While technically these tribes were not federally recognized in 1934, they were part of other tribes, BMIC and KBIC respectively. Perhaps someone will make an argument that since they weren’t recognized in 1934, but I don’t believe it will succeed. But I wouldn’t want to test that theory in the Roberts Court.

Grand Traverse Band/Huron Nottawaseppi Band/Gun Lake Band — All tribes administratively recognized through the BAR process post-1980. These tribes are closest to the Narragansett Tribe in this respect, but all of these tribes are treaty tribes as well. GTB is a signatory to the 1836 and 1855 treaties, and the Potawatomi tribes are signatories to the land cession treaties executed between 1821 and 1833. At least according to the concurring opinions, treaty tribes are in good shape.

LTBB/LRB/Pokagon Band — These tribes also are all treaty tribes, and they have the added benefit of a federal recognition/reaffirmation/restoration statute that authorizes (even mandates) the Secretary to take land into trust for them, in their service areas.

Burt Lake Band — I mention Burt Lake because of their recent foray into Michigan gaming politics, but also because part of their argument for state law gaming is that they are a state recognized tribe, at least as of 1903, according to the Band, which is exactly what the Supreme Court said about the Narragansett Tribe circa 1934. Suddlenly, it’s not so good to be a state-recognized tribe, though for Burt Lake’s purposes, it hardly matters.

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4 Responses to Carcieri and Its Potential Impact on Michigan Indian Tribes

  1. Bryan Newland says:

    I think you’re on to something here Matthew. I joked earlier in the day that Sault Tribe would now be in the position of admitting it was actually the Bay Mills Indian Community in 1934, but didn’t give it more thought. Looking more closely, I think this argument has merit.

    Section 5 of the IRA allows the Secretary to place land into trust for “Indians,” rather than “tribes.” As the court noted, Section 19 of the IRA defines “Indians” as, “all persons of Indian descent who are members of ANY recognized Indian tribe now under Federal jurisdiction[.]”

    This theory could be used as part of a multi-prong attack by a tribe seeking to evade Carcieri’s grasp. Such a tribe could/should first argue that all recognized tribes, by definition, were subject to federal jurisdiction in 1934 (without regard to whether the U.S. recognized or acted upon that authority at that time). As a second prong, they should point to particular facts that indicate they were subject to federal jurisdiction at that time (as with the Grand Traverse Band, with the Treaty of 1836 as evidence). As a third prong, and a more desperate grasp, some tribes could argue that their members were “Indians” within the meaning of the IRA because they were previously considered members of a tribe that was recognized in 1934.

  2. Pingback: Reaction to Carcieri Decision | Finley & Cook, PLLC

  3. David Moor says:

    bohzo Mr. Fletcher

    Who decides on service area’s? Some tribes have up to 26 counties and some have 3 counties in Michigan, is it federal law or up to a individual tribe?
    Also why do tax agreements differ so much from tribe to tribe? I thought tax agreements would be very similar on what members can claim “no tax on.”

  4. Service areas are usually negotiated by the tribe and the federal government, so however that plays out determines the service area. As for tax agreements, they are usually done on a tribe by tribe basis, but most of the Michigan tribes have a uniform tax agreement with the State of Michigan.

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