chippewa

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.

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 .

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)

Second DNR Explanatory Meeting

Matthew L.M. Fletcher

From the Ludington Daily News: “Chris Dobyns of the Michigan Attorney General’s office explained that several legal precedents were in the tribes’ favor heading into the negotiation on inland rights. The Canons of Construction, which are long-standing legal guidelines, explain that any ambiguous language in a treaty like “until the land is needed for settlement,” should be construed liberally in favor of tribes. Court rulings against the state of Minnesota and Wisconsin have reinforced this.”

More from the Ludington Daily News: “What will most residents notice once the new tribal consent decree kicks in? Nothing different, according to Little River Band Natural Resources Commission Chair Jimmie Mitchell, who spoke to the Daily News shortly after the agreement was announced.”

First DNR Inland Settlement Meeting

Matthew L.M. Fletcher

From the Soo Evening News:

Fisheries Chief Kelly Smith of the Michigan Department of Natural Resources indicated the fishing portion of the consent decree involved long and detailed discussion. The state was looking to protect fish stocks while at the same time minimizing the impact on licensed anglers and maintaining the current regulations. The tribes were looking to maximize harvest at peak times of efficiency utilizing spears and nets even during the spawning runs.

The tribes agreed to a permit system with notification requirements and timely harvest reporting. For its part, the state agreed to allow subsistence fishing activities even during spawning periods with certain restrictions designed to protect fish populations.

Walleyes, salmon and steelhead may all be taken by subsistence fishermen utilizing the tribal permit system with a variety of restrictions. They will be limited to somewhere between 5 and 10 percent of the walleye population in any given inland lake depending on acreage. Certain river systems leading into Big and Little Bay de Noc will also be open during the spawning run.

Smith observed the combination of sport anglers and subsistence fishermen should not exceed the 35 percent threshold required to maintain walleye populations on any given lake.

Steelhead and salmon will also be available to subsistence fishermen under the agreement with certain limitations again designed to protect brood stock in key areas.

Tribal members utilizing their own hunting permits will be allowed to harvest up to five deer a year with the season beginning the day after Labor Day and running into January. These permits will limit harvest to two antlered deer with only one allowed to be taken with a firearm before Nov. 1. The agreement also calls for a quiet period from Nov. 1-14, prohibiting the use of firearms for trial deer hunters.

Tribal regulations allow for the harvest of two turkey during the spring hunt and two more during the fall hunt. Migratory bird hunting will be governed by existing federal regulations with most other small game species unaddressed by the consent decree.

Bear hunters operating under tribal regulations will have the same start and end dates as Michigan hunters without any breaks. Tribal members will be entitled to up to 10 percent of the harvest within each bear management unit and that number can increase to 12.5 percent in the future if needed.

Tribal hunters are also guaranteed 10 percent of the state’s elk permits, but that can increase to 20 percent if the state issues less than 101 permits and more than 50.

Permits for both bear and elk will be transferable.

There were a number of questions from the audience following the DNR’s presentation including one member who asked if the tribe should be required to utilize the same equipment and techniques available at the time the treaty was signed.

“The courts have uniformly held that tribal members can use the same benefits of technology as non-tribal members,” answered Dobbins, meaning tribal members do not have any gear restrictions above and beyond the average sportsman.

Soo Tribe Board Officially Approves Inland Settlement

Matthew L.M. Fletcher

From the Soo Evening News: “The final piece of the puzzle appears to be in place as all five tribes have officially agreed to the 2007 Inland Hunting and Fishing Decree paving the way for an upcoming date in federal court.

“The Sault Ste. Marie Tribe of Chippewa Indians Board of Directors put the official stamp of approval on the deal Sunday during a special meeting. Reports indicate that two board members – Robert LaPointe and Shirley Petoskey – voted against the measure. Denise Chase was reportedly absent for the session and did not weigh in, while the rest of the board members approved the agreement.

“The tribe’s membership had overwhelmingly approved the agreement last week 3,476-678 in a special referendum.

“The other four tribes affected by the Treaty of 1836 had already approved the agreement with the State of Michigan defining inland hunting and fishing rights in perpetuity.”

Gatzaros Awarded Stake in Greektown Casino

Matthew L.M. Fletcher

From the Detroit News: “After nearly 10 years of investigating Greektown businessman Ted Gatzaros, the Michigan Gaming Control Board today awarded him partial ownership in a Detroit casino.”By a unanimous vote, the board approved Gatzaros’ application to become a 1 percent owner in Greektown Casino. Before the vote, board members said they could find no reason to reject the request.”

***

“Gatzaros and his partner Jim Pappas were instrumental in pushing casino gambling in Detroit in the 1990s. After voters approved casino gambling in a statewide referendum, Detroit awarded the pair one of three casino licenses.

“Following an investigation, however, the Gaming Board indicated a license to the pair would not be approved. Gatzaros and Pappas ultimately ended up selling their interest to the Sault Ste Marie Tribe of Chippewa Indians.

“Under that sale agreement, the Tribe promised to sell a 4 percent interest in the casino and split the money between Gatzaros and Pappas. However, the agreement did not include a timetable for the sale.

“With the board’s decision today, Gatzaros has agreed instead to take 1 percent ownership in the casino.”

Indian Families and Peyote

Matthew L.M. Fletcher1 Comment

From the Leelanau Enterprise:  “Leelanau County Family Court Judge Joseph E. Deegan last week ordered that the parents of three children who are members of the Grand Traverse Band of Ottawa and Chippewa Indians must refrain from giving their children hallucinogenic peyote as part of Native American religious rituals.”

This appears to be an emerging issue in Michigan and perhaps elsewhere. Naturally, these cases arise when the families split and custody and visitation questions are decided in court. Interestingly, because there is relatively little trust land in Michigan, I would imagine that few (if any) of these cases are heard in tribal court. I wonder if the outcomes would be different.

More Inland Coverage: The Settlement from the POV of U.P. Whitetails Assn

Matthew L.M. Fletcher

From the Escanaba Daily Press: “The conservation work performed by organizations such as the Bay De Noc Sports Fishermen and the MDNR was recognized as an integral component of the successful management of our inland fisheries. Is [the settlement] perfect? Not totally. However it is a far cry better than what was in place before because now everyone is thinking towards the future.”

The longer article appears to be an interesting CYA from the treaty rights opponents.

One nit to the author — the settlement doesn’t “change[]” the treaty, just interpret it.