Here is the opinion in Summit Petroleum Corp. v. EPA.
Here it comes — the case is captioned Saginaw Chippewa Indian Tribe v. Granholm (E.D. Mich.):
From the Morning Sun:
A federal judge has temporarily halted the lawsuit seeking to define the land inside the traditional boundaries of the Isabella Reservation as “Indian Country” while he decides what kind of case Isabella County and the city of Mt. Pleasant can present.
A hearing is set for next month before U.S. District Judge Thomas Ludington in Bay City, where the suit is being heard. The issue is whether the city and county will be permitted to argue that the Saginaw Chippewa Indian Tribe waited too long to file its suit, and whether what the Tribe is asking for is impossible.
The Tribe filed suit in 2005, asking Ludington to declare that all or part of seven townships in Isabella County, and the northern half of the city of Mt. Pleasant, are “Indian country” as defined by federal law. The Tribe is asking for an injunction to prevent the governor, attorney general and state treasurer from exerting criminal or civil jurisdiction over the Tribe or its members “in a manner not allowed in Indian country.”
Here’s the news coverage from the Morning Sun:
City, council can join lawsuit
By MARK RANZENBERGER
Sun Online Editor
A federal judge ruled Friday that the city of Mt. Pleasant and Isabella County will be permitted to be part of the federal lawsuit that seeks to define the land inside the traditional boundaries of the Isabella Reservation as Indian Country.
U.S. District Judge Thomas Ludington ruled that the county and city were extremely late in trying to join in the suit, filed in 2005 by the Saginaw Chippewa Tribe against the state. But Ludington, in a ruling released late Friday, said it was within his discretion to allow the two municipalities to join in on the side of the state.
Ludington ruled, however, that the city and county could not bring in their own experts, and would have to abide by all the stipulations already set in the case.
“The court recognizes that the (city and county) have a legitimate interest at stake in this litigation, because an outcome in favor of the Saginaw Chippewas could materially affect their future governmental responsibilities,” Ludington said in his opinion.
The Tribe wants Ludington to declare that all or part of seven townships in Isabella County are “Indian country” as defined by federal law. The Tribe is asking for an injunction to prevent the governor, attorney general and state treasurer from exerting criminal or civil jurisdiction over the Tribe or its members “in a manner not allowed in Indian country.”
The federal government already has joined the case on the side of the Tribe. The county and the city now are part of the case as defendants, on the side of the state.
Both city and county officials say they bear no ill will against the Tribe or Native people, but the suit is a way to define the authority of civil and tribal governments.
Court documents filed by the city say the outcome of the suit could affect, in particular, taxation and zoning.
Tribal attorneys argued that the late intervention was simply a way for the state to buy more time to prepare its case.
Ludington said the city and county could have joined the case soon after it was filed.
At the time that the (city and county) filed their motions, the posture of this case was long past initial trial preparation,” Ludington’s ruling said. “Moreover, the (city’s and county’s) participation in the past case coupled with the local media coverage, indicate that (they) had sufficient notice of this proceeding.”
The “earlier case” mentioned by was a case involving property taxation, which went all the way to the U.S. Supreme Court before being settled. Tribal members, and the Tribe itself, now pay property taxes on land owned outright; land held in trust is not taxable.
In the current case, the Tribe and the Justice Department say that an 1855 executive order, and treaties signed in 1855 and 1864, created an Indian reservation on five full townships and six half-townships in Isabella County, and it continues to this day.
A date for a trial, which would be conducted without a jury, has not been set.
Judge Ludington has granted the motions of Isabella County and the City of Mt. Pleasant to intervene, but because they were so late in filing (about 2 years after the initial complaint), the judge took the recommendation of the United States to deny these intervenors the right to bring their own expert witnesses.
Here are the materials in this element of the litigation:
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.