Guest Post: Bill Rastetter on Judge Enslen

From long-time Grand Traverse Band counsel Bill Rastetter on the passing of Judge Enslen:

Writing this helps me to reflect upon not just Richard Enslen but also the two other Western District judges appointed by Jimmy Carter — all of whom made major rulings for Grand Traverse Band.  (There’s a story there, if I ever could find the time; I’d start the story by talking with Dean Robb who was in the group of lawyers picked by the two Democratic Senators who came up with a list of possible nominees, including “progressives” who never would be considered in the present climate.)  Those three were Richard Enslen, Douglas Hillman, and Benjamin Gibson.  In retrospect, each individual evidenced concern for the plight of the less advantaged, the powerless within our society; and GTB’s victories might not have occurred if they had not been on the bench.

Gibson left Michigan long before retirement age, but not before he granted GTB its first victory in the modern (restored) era: Leelanau Indians, Inc. and Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Department of Housing and Urban Development (W.D. Mich. File No. G 80-526): 502 F.Supp. 741 (W.D. Mich. 1980).

Hillman?  Well, there’s the major case [Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney for the Western District of Michigan, et al. (W.D. Mich. File No. 1:96-CV-466): 198 F.Supp.2d 920 (W.D. Mich. 2002), and 46 F.Supp.2d 689 (W.D. Mich. 1999), aff’d. 369 F.3d 960 (6th Cir. 2004)] which easily could have been resolved differently if another judge had been assigned that case.*

And Enslen.  Even before the “treaty-fishing” cases, he granted the judgment declaring that GTB controlled the Peshawbestown lands. [Grand Traverse Band of Ottawa and Chippewa Indians v. Leelanau County and Leelanau Indians, Inc. (W.D. Mich. File No. G 83-834)]  Attached is his unpublished opinion; it’s the only time my proposed findings and conclusions have been adopted verbatim (without even being retyped).  And he was assigned the GTB v. BIA case [Grand Traverse Band of Ottawa and Chippewa Indians v. Bureau of Indian Affairs, et al. (W.D. Mich. File No. G 85-382)], by which we (with his help/not so subtle messages to DOJ that he’d grant preliminary injunction for us if …) held them (the Reagan administration DOI political operatives) at bay until Buddy Raphael negotiated the “compromise” membership provisions.  Both the 1985 and 2000 consent decrees were the result of his commitment to ADR (and at various times he forcefully let lawyers for state/”sports” groups know that they really didn’t want to give him a chance to rule for the Tribes); likewise, he allowed the Tribes plenty of maneuvering room leading up to the 2007 “inland” consent decree.  Also his July 15, 1986 opinion/order in which he fashioned a remedy in GTB’s favor when the other COTFMA Tribes (BMIC & SSM) decided they could distribute 1985 CD funds by majority vote (subsequently there have been equal 1/3 and then 1/5 distributions of appropriated funds above each Tribe’s base).  Finally, of course, is GTB’s “access” case now in the textbooks: Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Department of Natural Resources, et al. (W.D. Mich. File No. 1:94-CV-707): 971 F.Supp. 282 (1995), aff’d. 141 F.3d 635 (6th Cir. 1998), cert. denied 454 U.S. 1124, 102 S.Ct. 971 (1998).

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* Here is an article that appeared later in the New Yorker, written by his niece about his mother.  I was struck by the passage on the last page.  Here was a man who rose to the top of a prestigious G.R. law firm, probably relatively conservative albeit a Democrat in conservative G.R. and (I think) a labor lawyer, but I’m not aware of any indication that he was champion of the downtrodden.  Perhaps his mother instilled a sense of (in)justice, and when the opportunity presented itself he saved the day for the Indian Tribes. [United States v. Bay Mills Indian Community, et al. (W.D. Mich. File No. M 85-335): 692 F. Supp. 777 (W.D. Mich. 1988), vacated 727 F. Supp. 1110 (W.D. Mich. 1989)]  GTB gets no credit for Judge Hillman’s decision not to enjoin the Tribes’ casino gaming, yet it was our separate brief (and affidavits of Buddy Raphael and Barry Burtt) that argued Rule 65 equitable considerations weighed against the injunction requested by DOJ.

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1 Response to Guest Post: Bill Rastetter on Judge Enslen

  1. bill rastetter says:

    my ruminations overlooked the post-IGRA “Tribes v State” later captioned (after Seminole) “Tribes v Engler” litigation that was resolved with the 1993 gaming compacts (for the “original” seven Tribes); this case started with Judge Gibson, then after he left Michigan Judge Hillman was assigned the case: Sault Ste. Marie Tribe of Chippewa Indians, et al. v. Engler (W.D. Mich. File No. 1:90-CV-611): see 93 F.Supp.2d 850 (W.D. Mich. 2000); 800 F.Supp. 1484 (W.D. Mich. 1992), aff’d 5 F.3d 147 (6th Cir. 1993); see also 146 F.3d 367 (6th Cir. 1998)
    [WR]

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