Grand Traverse Band of Ottawa and Chippewa Indians – Page 7

Congressional action to correct the Supreme Court’s decision in Carcieri v. Salazar would cost American taxpayers nothing and would be an enormous win for Michigan tribes and the Michigan economy. Carcieri, a decision that undermines the certainty of the Department of Interior’s authority to acquire land in trust for some Indian tribes, makes borrowing money for several Michigan tribes more difficult and more expensive – for some Michigan tribes, the price to borrow money for capital growth increases by millions in increased interest or even the inability to borrow. In short, Carcieri costs the Michigan economy jobs and economic growth.

The Carcieri Decision

The Carcieri decision held that the Department of Interior could not take land into trust for the benefit of the Narragansett Indian Tribe in Rhode Island under Section 5 of the Indian Reorganization Act (“IRA”), a statute that authorizes the Secretary of Interior to do so for any Indian tribe. The IRA’s definition of “Indian tribe” includes any tribe “now under federal jurisdiction.” The Interior Department had interpreted the IRA to authorize trust land acquisitions for tribes under federal jurisdiction at the time of the application, using federal recognition as a proxy for federal jurisdiction. But the Supreme Court held that the Narragansetts were under state jurisdiction at the time of the enactment of the IRA in 1934, and so Interior could not take land into trust for them.

The Department of Interior had “administratively terminated” several Michigan Indian tribes – all of the six Ottawa and Potawatomi tribes now federally recognized – in the late 19th century. These tribes are “treaty tribes,” meaning that they have an ongoing treaty relationship with the federal government that has never been extinguished by Congress. The Sixth Circuit has recognized that “administrative termination” was an illegal administrative act, and the concurrences and dissent in Carcieri also recognized that the Michigan tribes probably were “under federal jurisdiction” in 1934. Still, those tribes, and two other tribes in the Upper Peninsula that became federally recognized in the 1970s and 1980s may be affected by Carcieri.

Impacts on Michigan Tribes

The Michigan tribes are among the tribes most adversely affected by the Carcieri decision, even though every one of them is a treaty tribe. They are affected in two important ways:

First, each of the tribes potentially affected by Carcieri may be forced to engage in a costly, protracted historical and legal determination by the Interior Department that they were “under federal jurisdiction” in 1934. In other words, the tribes may have to expend precious tribal resources to prove that they are eligible tribes in the frivolous lawsuits that are destined to be filed. There are currently 62 non-gaming related Michigan tribes trust applications pending in the Department of Interior now. These applications are for agriculture, housing, public safety, and other infrastructure projects. Many of these projects involve multi-million dollar construction jobs and long-term job creation. Every day that these trust applications are delayed slows down Michigan job growth and economic development. Nationally, a Carcieri fix is estimated to generate 140,000 jobs, many of those in Michigan.

Derek Bailey, the former chairman of my tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, testified before Congress in 2009 about the clear economic consequences of trust land acquisition delays:

As one example, Parcel 45 in Antrim County is a 78-acre parcel that is zoned for residential development by the local township and county. In order to obtain this zoning, we spent 1.5 million dollars of tribal money for roads and for sewer, water, and electrical infrastructure to render the parcels ready for individual housing. The parcel contains two homes owned by tribal members, two Grand Traverse Band rental homes, and 22 empty lots available for Tribal members to construct housing. However, until the land is placed into trust, tribal members cannot obtain the Bureau leases necessary to secure housing financing.

Second, the cloud of Carcieri stifles any development project by potentially affected Michigan tribes. Carcieri increases risks to lenders – the risk that a court finds that a tribe is not eligible because of the Carcieri case, even if low, increases exposure – and that translates to millions of dollars in increased interest rates and occasionally shuts down the project altogether by eliminating the ability of the tribe to borrow money at all. Carcieri has all but killed off investment in Indian country. This issue extends to tribes that may have a Carcieri problem and tribes that already have established economic enterprises. Lower Michigan tribes, especially in southwest Michigan, are enormous economic engines that have generated massive economic growth despite the specter of Carcieri. Relieving these economic engines of this unnecessary burden is only going to improve Michigan’s economy.

In conclusion, fixing Carcieri is costless to American taxpayers and a big win-win for Michigan and Michigan tribes.

ICT Profile of Fletcher’s New Book: “The Eagle Returns”

May 8, 2012May 8, 2012Matthew L.M. Fletcher1 Comment

Here. An excerpt:

The Eagle Returns: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians (Michigan State University Press, 2012) is a governmental, legal and political history of the tribe. The volume focuses on their status as a treaty tribe and as the first tribe to be recognized—or, perhaps more accurately, re-recognized—by the federal government under the Bureau of Indian Affairs’s administrative recognition process.

“It is the story of survival against the arrival and savage intervention of several European nations—and the United States—in the affairs and property of the Anishinaabek of the Grand Traverse Bay region,” Fletcher writes in his introduction. Professor of law and director of the Indigenous Law & Policy Center at Michigan State University College of Law, Fletcher also runs Turtle Talk, the Indigenous Law & Policy Center’s legal blog and an unrivaled source of court documents pertaining to Indian casework and law.

In The Eagle Returns, Fletcher takes on the guise of storyteller, and that role is reflected in the chapter headings: “The Story of the 1836 Treaty of Washington,” “The Story of the 1855 Treaty of Detroit” and “The Story of the Dispossession of the Grand Traverse Band Land Base” are just some of the entries.

Although the chapter titles are specific to the Grand Traverse Band, in a more general sense they could serve as a template for any number of indigenous nations. The book is a reminder that so many of them have followed the same post-European settlement trajectory of cultural and economic erosion, genocide, dispossession and poverty, up to the brink of legal extinction—only to survive through resilience and resourcefulness to emerge strong and prosperous in the latter part of the 20th century.

The Eagle Returns is not just a legal history. It is also filled with details about the material lives of the pre-treaty Anishinaabek peoples. At one point Fletcher writes deftly of their renowned birchbark canoes: They were “the finest canoes in the northern hemisphere, capable of carrying over a ton of people and equipment for two-year treks, creating an ability to travel over all of the Great Lakes and their major tributaries.”

Other compelling passages detail episodes like the negotiations between the Anishinaabek leaders, who were called ogemuk, and Henry Schoolcraft, the Indian Commissioner for the United States and “an ardent land speculator prone to fits of deep ethnocentrism.” On March 28, 1836, Schoolcraft signed off on the Treaty of Washington, whereby the tribes ceded an area of 13,837,207 acres—more than one-third of Michigan’s land area. The treaty provided for permanent reservations and prohibited the ethnic cleansing of Michigan Indians. But within months the Senate rewrote it to limit the reservations to five years and provide an option to remove Indian communities to the south and west.

“The Senate added the carrot of $200,000 to the bands that chose to remove to these lands in exchange for their reservations lands,” Fletcher writes. The president agreed to the amended treaty on May 27, 1836, but the Anishinaabek were not notified of the changes until July.

Still other chapters detail the further dispossession of the Grand Traverse Band and its “administrative termination” beginning in the 1870s. The story brightens with the band’s re–recognition on May 27, 1980; its famous victorious battle for treaty rights to hunt, fish and gather on public lands; its successful gaming enter-prises; and the modernization of the tribe’s ancient law and justice systems.

Fletcher says that he intends The Eagle Returns to serve as a reference for policymakers, lawyers and Indian people and for an educated general audience. But for the author, the book is also a considerable labor of love.

“It is written for the people of the Grand Traverse Band,” writes the author, “who have not had the benefit of drawing upon one source for the bulk of their legal and political history.”

Grand Traverse Band Council Expresses “Outrage” at Renaming of T.C. State Park after Keith J. Charters

March 22, 2012March 22, 2012Matthew L.M. Fletcher

From the letter sent yesterday to the Michigan Natural Resources Commission by the tribal council:

By motion enacted today, the Tribal Council of the Grand Traverse Band of Ottawa and Chippewa Indians (“GTB”) protests the renaming of the Traverse City State Park. The new sign proclaiming the “Keith J. Charters Traverse City State Park” is an outrage, given that Mr. Charters is responsible for an additional 825 feet of beach not being added to the park. We refer to the adjacent property immediately west of the state park beach area (including Mitchell Creek before it flows into East Bay), which is now open space and beachfront where our “Cross Creek” motel previously was located.

Here is the letter:

03-21-12 MI-NRC ltr

Sixth Circuit Vacates Conviction in Alleged Sex Offense at Grand Traverse Band

March 20, 2012Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. Anderson.

Split D.C. Circuit Grants Attorney Fees to Tribal Intervenors in EPA Mercury Rule Case (New Jersey v. EPA)

December 20, 2011December 20, 2011Matthew L.M. Fletcher

Here is the opinion. And the briefs:

Tribal Motion for Atty Fees

EPA Opposition

Tribal Reply

The underlying merits decision from the D.C. Circuit vacating a Bush-era EPA mercury rule is here. BLT coverage is here.

Here are the intervening tribes and organizations:

Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Jamestown S’Klallam Tribe, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Lower Elwha Klallam Tribe, Lummi Nation, Minnesota Chippewa Tribe, National Congress of American Indians, Nisqually Tribe, and Swinomish Indian Tribe Community

GTB Chairman Bailey to Run for Congress

September 30, 2011September 30, 2011Matthew L.M. Fletcher

Here.

An excerpt:

Peshawbestown, Mich.— The campaign to represent northern Michigan’s 1st Congressional District is expected to gain a new candidate this weekend.

Derek Bailey, tribal chairman of the Grand Traverse Band of Ottawa and Chippewa Indians, will announce his intention Saturday to run for Congress. He would face ex-state Rep. Gary McDowell of Rudyard in the Democratic August primary. McDowell lost in November to Republican Dr. Dan Benishek of Crystal Falls in a heated race for the seat held by longtime U.S. Rep. Bart Stupak, D-Menominee.

The 1st District is shaping up to be Michigan’s most hotly contested election and one with national implications. Democrats are targeting it as one of 25 they can win back in 2012 to retake the House.

Bailey, 38, was elected in 2008 as the youngest chairman of the tribe, a sovereign nation that was federally recognized in 1980.

In 1984, the tribe of more than 4,000 citizens became one of the first in the state to open a casino, the Leelanau Sands Casino. The Turtle Creek Casino and the Grand Traverse Resort and Spa followed.

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