Here is the brief, where the tribe responds to the state’s laches defense for the first time on appeal — reply-brief-of-appellant-ottawa-tribe-of-oklahoma
The other materials in this important case are here. A link to the district court opinion in the Saginaw Chippewa reservation borders case referenced in the reply brief is here.
Greg Gagnon’s review of Constance Cappel’s monograph “The Smallpox Genocide of the Odawa Tribe at L’Arbre Croche, 1763: The History of a Native American People” is here (smallpox-genocide-review). It is not terribly favorable. Here is the full text:
Publication of American Indian perspectives on history is a positive trend that provides an antidote to colonizers’ perspectives. However, the antidote should not be a mirror image of previous bias. Cappel’s thesis is that unnamed British officials gave tins of smallpox spores to Odawa from L’Arbre Croche in 1763. This genocide “changed the course of history.” Substantiation comes from Web sites and Andrew Blackbird’s History of the Ottawa and Chippewa Indians of Michigan (1887), augmented by speculation related to Lord Jeffrey Amherst’s infamous letter. Cappel also indicates that copper from Michigan was traded to Mediterranean civilizations to create the Bronze Age; the Odawa community of L’Arbre Croche numbered around 30,000; scalping began in 1756; the French “encouraged an addiction to rum”; tens of thousands of Indians under a flag of truce were murdered by the British; and both the League of Nations and UN were modeled on the Indian system. One function of this book is its illustration of the ubiquity of plot theories and the historical inaccuracies that form their bases. It also demonstrates a beginning stage in historiography that includes Indian sources. Summing Up: Optional. Graduate students and faculty only.G. Gagnon, University of North Dakota
I also had some of the same concerns with this work. There are enough doubters about the origins of smallpox epidemics in Indian Country that a work like this could be very useful, but it lacks the primary documentation that doubters demand.
On the other hand, Simon Otto’s wonderful preface should remind us that the oral histories contained in works like these remain invaluable.
From the Record-Eagle:
PESHAWBESTOWN — Tribal officials with the Grand Traverse Band of Ottawa and Chippewa Indians are caught up in another lawsuit.
Members of the band’s compensation committee filed suit in tribal court alleging former tribal Chairman Robert Kewaygoshkum inappropriately raised council members’ salaries.
From the Traverse City Record-Eagle:
PESHAWBESTOWN — Derek Bailey wakes up with a sense of privilege, a feeling he’s had each morning since taking office as chairman of the Grand Traverse Band of Ottawa and Chippewa Indians.
“I hold that thought throughout the day,” he said.
Bailey, 36, became the band’s youngest tribal chairman this month, following a nearly seven-month election odyssey rife with disputes and litigation.
This is an ICWA case involving the meaning of “active efforts” under Michigan law. The petitioner is the Michigan Dept. of Human Services, and tribe involved is the Sault Tribe. The docket number is 137653. Here are the opinions from the Michigan Court of Appeals:
in-re-lee-partial-concurrence-dissent
From the order granting leave to appeal:
On order of the Court, the application for leave to appeal the October 16, 2008 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall include among the issues to be briefed (1) whether the term “active efforts” in 25 USC 1912(d) requires a showing that there have been recent rehabilitative efforts designed to prevent the breakup of that particular Indian family; and (2) whether the “beyond a reasonable doubt” standard of 25 USC 1912(f) requires contemporaneous evidence that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child before parental rights may be terminated.
SCOTUSblog has listed MichGO v. Kempthorne as a petition to watch (see post here) for the January 9 conference. Here are the briefs, etc.:
Docket: 08-554
Title: Michigan Gambling Opposition v. Kempthorne
Issue: Whether Section 5 of the Indian Reorganization Act, which gives the Secretary of Interior discretion to acquire lands for Native Americans, is an unconstitutional delegation of legislative authority.
From the Leelanau Enterprise:
Ed. note: New Tribal Chairman Derek Bailey of the Grand Traverse Band of Ottawa and Chippewa Indians, who was sworn in to his new position Thursday, talked with Enterprise reporter Eric Carlson Friday on a wide range of topics. Following is their conversation:
From the Leelanau Enterprise:
Derek Bailey sworn in as new GTB chairman.
DEREK BAILEY at last week’s swearing-in ceremony.
Clutching an eagle fan believed to give a leader the courage to “speak in a good way,” the youngest tribal chairman in the history of the Grand Traverse Band of Ottawa and Chippewa Indians stepped up to the podium on stage at the Leelanau Sands Casino Showroom Thursday afternoon immediately after being sworn in.
“This is a very emotional, powerful moment not only for me but for our entire nation,” said 36-year-old Derek Bailey. He explained that the sacred feathers were loaned to him by his uncle, Deuce Miller.
Bailey acknowledged how long and difficult the 2008 tribal election process had been.
“To those who did not support me in the election,” Bailey said, “I will work hard to meet your needs and expectations.”
In 1980, when the tribe was finally recognized as a sovereign nation by the U.S. government, membership was around 400. Tribal membership now exceeds 4,000.
The City of Mount Pleasant and the County of Isabella had moved the Eastern District of Michigan to certify the earlier decision not to allow the defense of laches for an interlocutory appeal to the Sixth Circuit, but all the other parties (including co-defendant State of Michigan) objected. And so the district court rejected the motions.
city-of-mt-pleasant-motion-for-certification
isabella-county-motion-for-certification
The United States Department of Justice has been thinking a little bit about what will happen if the Supreme Court rules against the Secretary of Interior in Carceri v. Kempthorne. We’ve already suggested that, based on oral argument, that the Secretary’s authority under Section 5 of the Indian Reorganization Act will be sharply limited in relation to tribes “not under federal supervision” or “under federal jurisdiction in 1934.”
In the recent filing opposition a petition for a writ of certiorari in MichGO v. Kempthorne, a direct challenge to Section 5 as applied to all tribes, the Solicitor General’s officer may have laid the groundwork for a post-Carcieri world. The MichGO petitioners, who have been using the litigation to delay the opening of the Gun Lake Band of Pottawatomi Indians’ casino for years, appear to be pushing the Supreme Court to hold the MichGO petition until after Carcieri is decided (likely in January or February). But the government argued that no such delay was necessary, because (and this is the key part, where the United States asserts what will happen if the Court rules against the government):
Turtle Talk 
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