Michigan Indian

Little Traverse Bay Bands et al. v. Great Spring Waters & Engler

Matthew L.M. Fletcher

In 2002, the three Michigan Ottawa tribes sued Great Spring Waters & Governor Engler over the State’s granting of rights to take millions of gallons of water from mid-Michigan’s water table — a sweetheart deal if there ever was one. The tribes sued under the Water Resources Development Act of 1986, but there was no cause of action and the district court dismissed the action. The tribes did not appeal.

Here is the motion to dismiss: Motion to Dismiss

Here is the Tribes’ response, plus an exhibit: Response Brief + Exhibits

Here is the reply brief: Reply Brief

Here is the order dismissing the case: Opinion

The tribes chose not to bring claims based on the treaty rights they had established in United States v. Michigan. At some point, we expect tribes to bring treaty claims in the environmental protection context — see our MSU Law Review paper.
There has been a fair amount of scholarly commentary on the case, such as this student note in the Columbia Law Review and this paper in the Vermont Journal of Environmental Law.

Michigan Court of Appeals: Moses v. Dept. of Corrections

Matthew L.M. Fletcher1 Comment

Earlier this year, the Michigan Court of Appeals decided Moses v. Dept. of Corrections, a case brought by a convict who committed a crime on the Isabella Reservation near Mt. Pleasant. He brought a habeas claim on the basis that the parcel of land on which he committed the crime was “Indian Country” and outside the state’s jurisdiction. He lost. We’re looking up the briefs of the case right now, but the decision rested on the federal Swamp Lands Act. In short, according to the COA, Congress granted certain swamp lands to the State in 1862, lands that otherwise would have become part of the Isabella reservation, so that those lands are not nor ever were Indian Country.

The Moses Court relied on a previous Mich. COA case, People v. Bennett, 491 N.W.2d 866 (1992), which included this language:

In this case, the parties have not presented evidence of the negotiations surrounding the formation of the Treaty of October 18, 1864. However, examining the treaty itself, it appears that the parties intended for the previously sold lands to be excluded from the reservation, because the Chippewas were granted all the “unsold” lands within the six townships. Given the plain language of the treaty, and the lack of evidence to the contrary, we believe the Chippewas would have understood at the time of treaty formation that they were not permitted to settle on or own any lands previously patented to individuals. [emphasis added]

It’s fairly difficult for me to believe that the Ogemuk knew about the Swamp Land Act in 1864, especially given that most Indian agents of the day supposedly schooled in India-related laws and regulations had no clue. And to have attributed to them this knowledge, when they did not speak English, on the basis that the plain language is the plain language, is a sad joke. Of course, the Supreme Court cases on treaty interpretation do the same thing.

This proves once again that tribal reservation boundaries should only be litigated after the tribe has done its research. And it is unfortunate that so many of these cases arise in the context of criminal law where convicts or defendants are seeking to vacate a conviction on jurisdictional bases. Courts there are just looking for any out.

The Keno Case

Matthew L.M. Fletcher1 Comment

In State of Michigan v. Little River Band of Ottawa Indians et al., the State is suing LRB and LTBB for violation of the gaming compacts requirement that the tribes share revenue from their gaming operations — LTBB Compact & LRB Compact. The tribes stopped payment when Governor Granholm authorized the state to begin keno at bars and restaurants. Senior District Court Judge Miles granted the State’s motion for summary judgment last April. The appeal to the Sixth Circuit is forthcoming. As those briefs go online, we will upload them here.

Judge Miles’ opinion is here: Opinion and Order

The State’s motion for summary judgment is here: Motion for Summary J

The tribes’ response brief is here: Tribes’ Brief

The State’s reply brief is here: Reply Brief

Tribal Exhaustion Doctrine & KBIC Tribal Court

Matthew L.M. Fletcher

Judge Quist in the Western District of Michigan recently remanded a tort claim back to tribal court in accordance with the tribal court exhaustion doctrine, as articulated in National Farmers Union and Iowa Mutual.

The case is called Michigan Property & Casualty Guaranty Association v. Foucault-Funke American Legion Post 444.

The motion to dismiss is here: Memorandum in Support of Motion

The response brief is here: Response Brief

Judge Quist’s opinion remanding the case to tribal court is here: Opinion

Saginaw Chippewa 2% Distribution History — $66.9 Million and Counting

Matthew L.M. Fletcher

From Joe Sawmick, spokesperson for the Saginaw Chippewa Tribe: Saginaw Chippewa 2 Percent Distribution History

So that’s about 3 and a quarter billion in net revenue. Whew.

Soo Tribe v. Bouchor et al. Materials

Matthew L.M. Fletcher

From the Soo Tribe website:

The trial court’s grant of partial summary judgment in favor of the Tribe is here: Opinion — Feb. 9, 2007

The docket sheet in the Michigan Court of Appeals is here. One appellant brief was filed in September. Meter, Owens, and Borrello are the assigned judges.

Mich. Supreme Court Justice Cavanagh Talk: Michigan Indian Judicial Association

Matthew L.M. Fletcher1 Comment

Justice Michael Cavanagh, the Michigan Supreme Court’s liaison with Michigan’s tribal courts, is speaking before the members of the Michigan Indian Judicial Association this morning.

Justice Cavanagh, along with Tribal Judge Michael Petoskey, spearheaded the Court’s adoption of Michigan Court Rule 2.615, extending comity to tribal court judgments.

Justice Cavanagh wrote about the origins of the rule in an article published in the University of Detroit Law Review. Download Justice Cavanagh’s Article.

Tribal courts from numerous tribes appeared at this talk today at the MSU College of Law: Nottawaseppi Huron Band of Potawatomi Indians, Pokagon Band of Potawatomi Indians, Little Traverse Bay Bands of Odawa Indians, Little River Band of Ottawa Indians, Bay Mills Indian Community, Keweenaw Bay Indian Community, Saginaw Chippewa Indian Tribe.

Justice Michael F. Cavanagh

Justice Cavanagh received a bachelor’s degree from the University of Detroit in 1962 and his law degree from the University of Detroit Law School in 1966. He began his career as a law clerk for the Michigan Court of Appeals. In 1967, Justice Cavanagh was hired as an assistant city attorney for the City of Lansing and thereafter was appointed as Lansing City Attorney, serving until 1969. He then became a partner in the Lansing law firm of Farhat, Burns and Story, P.C. In 1971, he was elected judge of the 54-A District Court. Justice Cavanagh was then elected to the Michigan Court of Appeals, where he served from 1975-1982. At that time, he was the youngest person ever elected to the Michigan Court of Appeals. Justice Cavanagh was elected to the state Supreme Court in 1982 and was re-elected in 1990, 1998, and 2006. He served as Chief Justice from 1991-95. Justice Cavanagh’s current term expires January 1, 2015.

The son of a factory worker and a teacher who moved to Detroit from Canada, Justice Cavanagh worked on Great Lakes freighters during the summers to help pay his tuition at the University of Detroit. During his years in law school, he was employed as an insurance claims adjuster and also worked for the Wayne County Friend of the Court as an investigator.

Justice Cavanagh has participated in numerous community and professional activities, including Chairman of the Board of the American Heart Association, Past President of the Incorporated Society of Irish/American Lawyers, Board of Directors of the Thomas M. Cooley Law School, and the Commission on the Future of the University of Detroit Mercy . He is a Member of the Institute of Judicial Administration, New York University Law School. He has served as Vice President of the Conference of Chief Justices, Chair of the National Interbranch Conference of Funding the State Courts, and member of the National Center for State Courts Court Improvement Program. Other appointments include the Michigan Justice Project, Chairman of the Judicial Planning Committee, Michigan Crime Commission, Judicial Coordinating Committee, and Chair of the Sentencing Guidelines Committee. Justice Cavanagh is the Supervising Justice of the Michigan Judicial Institute. Justice Cavanagh was instrumental in the planning, design, construction and eventual completion of the Michigan Hall of Justice. He has served as Supreme Court Liaison, Michigan Indian Tribal Courts/Michigan State Courts since 1990, and has attended many national Indian Law conferences and participated in Federal Bar Association Tribal Court symposiums.

Justice Cavanagh and his wife, Patricia, are the parents of three children, and have two grandsons. The Cavanagh family resides in East Lansing .

Michigan Gaming Compact Revenue Sharing Benefits — LTBB

Matthew L.M. Fletcher

From the Petoskey News Review:

Allied EMS emergency medical technician
Chris Heckman (left) and paramedic Erik Slifka are shown with an ambulance and heart monitor purchased with assistance from the Emmet County Local Revenue Sharing Board.

Revenue-sharing grants have helped Allied acquire seven ambulances as well as assorted equipment for the vehicles through the years. “They’ve been very instrumental in helping us keep our operation going,” said Allied chief executive officer Dave Slifka. (Ryan Bentley/News-Review)
Deciding how the community will share in Little Traverse Bay Bands of Odawa Indians casino proceeds is not a game of chance.

Under its gaming compact with Michigan, the Odawa tribe is required to provide 2 percent of electronic gaming receipts from its Petoskey casino to nearby communities. The Local Revenue Sharing Board, a three-member appointed panel, is responsible for choosing specifically what projects and resources will receive support, reviewing grant applications twice yearly to decide which requests merit awards.

“We’re servants of the public,” said revenue board chairman Les Atchison. “We’re trying to do the best we can in our judgment to see that the money is put to best use. Frankly, we welcome the suggestions of those who appoint us.”

From its inception in 2000 through the end of 2006, the board awarded about $6 million in grants funded with casino proceeds. Since the tribe’s casino site is in federal trust status and not subject to property taxes, the board paid an additional $540,000 to local governments during those years to make up for tax revenue they would have received if the property was on the tax rolls.

Inland Settlement Signed at Odawa Casino in Petoskey

Matthew L.M. Fletcher

From the Petoskey News Review:

“Four weeks after the various governments reached an understanding of how historic treaty rights apply to tribal members’ inland fishing and hunting activities, many of their officials and staff — about 100 people in all — gathered at the Odawa Hotel in Petoskey to commemorate the new agreement.

“Pipe and flag ceremonies and a gift exchange among governmental leaders were part of the celebration.

“It is a pretty exciting day,” said Little Traverse Bay Bands of Odawa Indians tribal chairman Frank Ettawageshik.

“While driving to Thursday’s event, Ettawageshik noted that he’d passed through some heavy fog before arriving in clearer conditions — and likened this experience to the years-long discussion and negotiation that led up to the agreement.

“Here we are back in the sunshine at the end of the clouds,” the chairman said.


Little Traverse Bay Bands of Odawa Indians tribal chairman Frank Ettawageshik signs a document commemorating a new consent decree which clarifies the hunting and fishing rights retained by five of Michigan’s Indian tribes in the Treaty of 1836. The LTBB hosted a celebration to commemorate the new agreement Thursday at its Odawa Hotel. (Ryan Bentley/News-Review)

Detroit News: “Manisteepee?”

Matthew L.M. Fletcher

From the Detroit News:

“In this tranquil beach community, the gentle lapping waves of Lake Michigan have brought ashore a brutish dispute.

Sports fishermen and charter boat operators are fighting a local American Indian tribe over its use of fishing nets in one of the top salmon spots in the nation.

The issue has led to vandalism, boycotts and charges of favoritism and racism. Some boaters refer to the town as Manisteepee.

‘It’s racial,” said Matt Stone, 28, an American Indian netter who has been called racist names. “I know it. I feel it. I see it. I hear it.'”

Jacque Leblanc hauls in chubs near Manistee. Fishermen and boat operations are at odds with a local Indian tribe over use of nets. (John L. Russell / Special to The Detroit News)