Guest Post: Bill Rastetter on Judge Enslen

From long-time Grand Traverse Band counsel Bill Rastetter on the passing of Judge Enslen:

Writing this helps me to reflect upon not just Richard Enslen but also the two other Western District judges appointed by Jimmy Carter — all of whom made major rulings for Grand Traverse Band.  (There’s a story there, if I ever could find the time; I’d start the story by talking with Dean Robb who was in the group of lawyers picked by the two Democratic Senators who came up with a list of possible nominees, including “progressives” who never would be considered in the present climate.)  Those three were Richard Enslen, Douglas Hillman, and Benjamin Gibson.  In retrospect, each individual evidenced concern for the plight of the less advantaged, the powerless within our society; and GTB’s victories might not have occurred if they had not been on the bench.

Gibson left Michigan long before retirement age, but not before he granted GTB its first victory in the modern (restored) era: Leelanau Indians, Inc. and Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Department of Housing and Urban Development (W.D. Mich. File No. G 80-526): 502 F.Supp. 741 (W.D. Mich. 1980).

Hillman?  Well, there’s the major case [Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney for the Western District of Michigan, et al. (W.D. Mich. File No. 1:96-CV-466): 198 F.Supp.2d 920 (W.D. Mich. 2002), and 46 F.Supp.2d 689 (W.D. Mich. 1999), aff’d. 369 F.3d 960 (6th Cir. 2004)] which easily could have been resolved differently if another judge had been assigned that case.*

And Enslen.  Even before the “treaty-fishing” cases, he granted the judgment declaring that GTB controlled the Peshawbestown lands. [Grand Traverse Band of Ottawa and Chippewa Indians v. Leelanau County and Leelanau Indians, Inc. (W.D. Mich. File No. G 83-834)]  Attached is his unpublished opinion; it’s the only time my proposed findings and conclusions have been adopted verbatim (without even being retyped).  And he was assigned the GTB v. BIA case [Grand Traverse Band of Ottawa and Chippewa Indians v. Bureau of Indian Affairs, et al. (W.D. Mich. File No. G 85-382)], by which we (with his help/not so subtle messages to DOJ that he’d grant preliminary injunction for us if …) held them (the Reagan administration DOI political operatives) at bay until Buddy Raphael negotiated the “compromise” membership provisions.  Both the 1985 and 2000 consent decrees were the result of his commitment to ADR (and at various times he forcefully let lawyers for state/”sports” groups know that they really didn’t want to give him a chance to rule for the Tribes); likewise, he allowed the Tribes plenty of maneuvering room leading up to the 2007 “inland” consent decree.  Also his July 15, 1986 opinion/order in which he fashioned a remedy in GTB’s favor when the other COTFMA Tribes (BMIC & SSM) decided they could distribute 1985 CD funds by majority vote (subsequently there have been equal 1/3 and then 1/5 distributions of appropriated funds above each Tribe’s base).  Finally, of course, is GTB’s “access” case now in the textbooks: Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Department of Natural Resources, et al. (W.D. Mich. File No. 1:94-CV-707): 971 F.Supp. 282 (1995), aff’d. 141 F.3d 635 (6th Cir. 1998), cert. denied 454 U.S. 1124, 102 S.Ct. 971 (1998).

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* Here is an article that appeared later in the New Yorker, written by his niece about his mother.  I was struck by the passage on the last page.  Here was a man who rose to the top of a prestigious G.R. law firm, probably relatively conservative albeit a Democrat in conservative G.R. and (I think) a labor lawyer, but I’m not aware of any indication that he was champion of the downtrodden.  Perhaps his mother instilled a sense of (in)justice, and when the opportunity presented itself he saved the day for the Indian Tribes. [United States v. Bay Mills Indian Community, et al. (W.D. Mich. File No. M 85-335): 692 F. Supp. 777 (W.D. Mich. 1988), vacated 727 F. Supp. 1110 (W.D. Mich. 1989)]  GTB gets no credit for Judge Hillman’s decision not to enjoin the Tribes’ casino gaming, yet it was our separate brief (and affidavits of Buddy Raphael and Barry Burtt) that argued Rule 65 equitable considerations weighed against the injunction requested by DOJ.

Rat on Inland

From the Leelanau Enterprise:

Tribal-state consent decree signed

Attorney Bill Rastetter figured he and other representatives of the Grand Traverse Band of Ottawa and Chippewa Indians had better attend the biennial meeting of the Conservation Resource Alliance in Traverse City for a couple reasons.

First, tribal members wanted to show support for natural resources, and the CRA seeks to protect watershed in northwest Michigan.

And secondly, they wanted to hear what just-appointed Michigan United Conservation Club executive director Dennis C. Muchmore had to say about the recently released consent decree acknowledging inland rights to hunt and fish within property defined by an 1837 treaty.

Muchmore, keynote speaker at the Oct. 18 luncheon, talked of opportunities afforded by the consent decree for MUCC and other sporting groups, the state, and the tribes to work together to promote their common causes.
“It was the polar opposite of 1981,” said Rastetter.

The consent decree, the result of two years of closed negotiation between the state and five Michigan Indian Tribes, was signed this week by U.S. District Judge Richard Alan Enslen.

The decree has no ending date. For all practical purposes, it represents the law of the land in how members of the five tribes hunt and fish in Michigan.

Rastetter is a veteran of the latest round of cases involving tribal issues, having enlisted as a pro-bono attorney working for Michigan Indian Legal Services shortly after federal Judge Noel Fox issued his landmark decision in 1979 granting treaty rights for Native Americans to gill net in the Great Lakes. Eventually, he was hired by the Grand Traverse Band to represent it in complicated legal cases with the state that had long-term implications.

Rastetter recalled attending a meeting in 1981 at which former MUCC director Tom Washington, who is now deceased, and former DNR director Howard Tanner denounced the emboldened tribal commercial fishers.

“What they had to say about the Indians, it would be an understatement to say it was a tirade,” said Rastetter. In defense of Washington and Tanner, considered stalwarts of the conservation movement, they were being reflective of a society of sportsmen fearful that the resources they cherished would be plundered.

Fox’s ruling came largely without limits, and eventually lake trout populations were over-harvested. Rastetter said Indian tribes were in their infancy. Most of the harvest in Grand Traverse Bay, he said, was by Native Americans who resided in the Upper Peninsula and were not members of the GTB.

Still, the die was cast. Indian fishermen were considered bad by members of the traditional conservation movement.

Flash forward to today, with the heard of MUCC reaching out to tribes as fellow conservationists, and the state and tribes willing to negotiate away portions of their legal positions in order to reach an agreement.

Somewhere along the way, the state and tribes came to terms that they should not be enemies. In fact, they are nearing an unfamiliar relationship — that of partners.

“Our biologists are working hand-in-hand with (Traverse City DNR fish biologist) Todd Kalish on a number of projects. Clearly there is a common mission,” said Rastetter.

Also familiar with the history of the struggles of GTB members is Henry (Hank) Bailey, a fish and wildlife technician with the GTB Natural Resources Department. He has the perspective of viewing the decree from two sides — that of an Indian who may have given up some of his treaty rights, and that of a protector of resources.

“We’ve always been great managers of resources,” he said, adding that GTB members believe in planning ahead seven generations in their use of natural resources. “That’s how far you need to be looking and planning for. You have to be careful with what you’re doing with the resource.”

Bailey has heard complaints from other GTB members that tribal negotiators gave up too much to get the settlement. “There are so many ways of looking at it. But it has been negotiated, so there has been give and take … the state folks have people who they have to answer to, and they’ll take a beating.”

State conservation officer Mike Borkovich has heard from those folks, who believe the state should have taken its case to trial. He, too, offers a bit of history.

“The treaty was made even before Michigan was a state. In a way, the state wasn’t in the negotiations for the treaty,” he said.

Hunters are concerned that GTB members are allowed to firearms hunt on public lands earlier than the traditional opener on Nov. 15. Fishers are concerned that limited netting — but not gill netting — will be allowed on larger inland lakes.

“I want people to be patient,” Borkovich suggests. “The tribal members are not anti-hunting or anti-gun zealots. If we all work together with proper management techniques, we will be able to sustain our resources.”

Rastetter said the decree is the first he knows of that recognizes tribal rights without having to first go to federal court, where states have traditionally lost their cases. The document is full of give-and-take, of which some pertains directly to Leelanau County. For instance, tribal rights were extended to lands enrolled in the state Commercial Forestry Act — but only lands of 1,000 acres or more. That provision excludes all property enrolled in Leelanau.

And “state parks” were specifically excluded from public lands falling under tribal rules — meaning that the hundreds of acres in Leelanau State Park were excluded from the early tribal firearms deer hunt.

“There are comprises like these that I’m sure tribal members are not happy about,” he said. “But this sets the stage for cooperation on a wide level on inland issues.”

Court Approves Inland Settlement

From the AP: “A federal judge signed an agreement between the state of Michigan and five Indian groups on Monday giving the tribes the power to issue their own hunting and fishing licenses and write their own regulations.”U.S. District Judge Richard Enslen’s decree was the final step resolving a four-year-old lawsuit rooted in decades of debate over the meaning of tribal rights in modern times. It acknowledges the tribes’ rights under an 1836 treaty.”