The full complaint, the state’s answer to that complaint, and the agreement between the local municipalities, are attached at the end of this story.
BY BENJAMIN J. GOHS, NEWS EDITOR
Charlevoix County has pledged up to $20,000 to help the State of Michigan fight a territorial dispute against the Little Traverse Bay Bands of Odawa Indians.
The tribe is suing Michigan Gov. Rick Snyder in hopes a federal court will forever declare the tribe’s land sovereign and under federal jurisdiction; however, the state denies the tribe’s claim its reservation encompasses 216,000 acres—some of which is in Charlevoix and Emmet counties.
“The ramifications to the county and townships if the state settles with them (tribe) and we have no seat at the table?” said Charlevoix County Commissioner Chris Christensen (R-District 2). “The tribe could potentially say, ‘This looks like a great space for a hotel or for a gas station’ and the zoning and taxation rules would no longer apply.”
According to a press statement from the tribe, “In pursuing boundary recognition, the tribe does not seek title to private lands, to remove private owners from their properties, or otherwise affect land and property values.”
They further stated, “The tribe only seeks to clarify jurisdictional lines that are largely invisible to the general population. This clarity will allow the tribe to best protect its children, its vulnerable adults, and its ancestors. It will bring tangible benefits to the local tribal and non-tribal population.”
The Odawa tribe says reservation boundary recognition would accomplish some of the following:
• Increase the availability of federal funding for area roads;
• Allow the Tribe to access federal funds for emergency preparedness;
• Increase the availability of federal resources to address family-violence issues;
• Allow the Tribe to continue to relieve local human-services caseloads and court dockets;
• Offer a framework for additional government-to-government agreements with local municipalities and the State; and
• Deepen the sense of community that flows from the continued historical and cultural significance of the Tribe’s presence.
The Tribe’s Claim
According to documents filed in the United States District Court—Western District Of Michigan—Southern Division, the executive orders of 1855 and the 1855 Treaty with the Ottawa and Chippewa guaranteed predecessor bands of the tribe would never be forced to leave its land or give up its sovereignty.
“The Reservation boundary described in (the treaty) … is clear and unambiguous,” it states in the tribe’s complaint. “The 1855 Treaty Reservation stretches 32 miles north-to-south from the northern tip of Michigan’s Lower Peninsula along the eastern shore of Little Traverse Bay. It includes the cities of Cross Village, Good Hart, Harbor Springs, Petoskey, and parts of Charlevoix. It also includes Garden and High Islands. The Reservation consists of 337 square miles, and approximately 103 miles of Lake Michigan Shoreline.”
The state denies the Odawa tribe’s reservation is the size and shape it claims or that it consists of all the lands referred to in the 1855 treaty or that the boundaries are “clear and unambiguous.”
Charlevoix County entered the “Joint Defense and Common Interest Agreement” with the City of Petoskey, Emmet County, and City of Harbor Springs because, as it states in the agreement, “Each of the parties has a governmental, jurisdictional and financial interest in an action filed by Little Traverse Bay Bands of Odawa Indians.”
In order to defend their “separate but common interests … and to avoid any suggestion of waiver of the confidentiality of privileged and/or attorney work product communications or documents” the agreement outlines the various municipalities’ legal counsel under the umbrella of the law firm Plunkett Cooney which includes James Murray, who represents Petoskey; Kathleen Abbott, the corporate counsel for Emmet County; James Ramer, representing Harbor Springs; and, the Charlevoix County Board of Commissioners civil counsel attorney Bryan Graham.
A fee-sharing agreement, which is attached to the joint defense and common interest agreement, retains Plunkett Cooney and ensures all the relevant parties share the expense of legal fees.
According to the agreement, the City of Petoskey will pay 31.5 percent of any legal fees, Emmet County will pay 51.26 percent, Harbor Springs will pay 10.24 percent, and Charlevoix County will pay 7 percent of Plunkett Cooney’s legal expenses—up to $20,000 but no more without further board approval.
The tribe seeks help from the federal court because, it says, no other official body can stop the state from “continuing to unlawfully deprive the tribe of its treaty-protected rights.”
But, the state claims there are “alternative dispute resolution processes” the tribe should have first sought before filing suit.
According to the tribe, it has maintained its presence on the reservation before the 1855 treaty and has continued until presently.
“The United States government acknowledges the continued existence of the reservation,” stated the tribe in its complaint. “But, the State of Michigan does not recognize or respect the reservation boundaries.”
• Establishing Sovereignty
The tribe claims numerous state and local agencies have, over the tribe’s history, acknowledged the existence and legitimacy of the reservation and the tribe’s sovereignty in several ways.
In their complaint, tribal officials cite a tax agreement with the State of Michigan that exempts certain tribe members from paying state income taxes as recognition of the tribe’s sovereignty.
The state claims the tribe’s acts of simply engaging in agreements with municipal entities, both state and local, does not confirm the tribe’s sovereignty.
“[W]hether plaintiff asserts that it has jurisdiction over matters or locations under tribal law does not resolve whether it has such jurisdiction and may exercise it in particular circumstances,” the state writes in its response…. “There may be other factors that determine jurisdiction, such as voluntary agreements and consent decrees between a tribe and the State of Michigan. Further, jurisdiction and reservation boundaries are not identical concepts and the circumstances and places a federally-recognized tribe exercises jurisdiction does not necessarily establish the boundaries of a reservation.”
The tribe also claims official recognition of such rights by its memorandums of agreement and partnerships with state and local agencies on matters involving environmental protection and management, roads, and policing.
• Child Welfare Issues
According to the tribe, the state has been inconsistent in its treatment of the reservation.
“[A]nd, in fact, it has expressly refused to recognize the tribe’s reservation in a number of ways that threaten the tribe’s autonomy and sovereignty, and that violate the 1855 Treaty,” the tribe states.
According to court documents, the state has refused to acknowledge the tribe’s sovereignty by asserting jurisdiction over Indian child-welfare matters on land within the reservation.
“This violates the Indian Child Welfare Act, which gives tribes sole authority over Indian-child welfare matters within the boundaries of its reservation,” the tribe states. “On-the-ground confusion often arises in these contexts when children and families are forced to deal with both the Tribe and the State.”
The tribe adds, “Often, the agencies apply differing standards for when a family meets program requirements, what efforts should be used to assist the family, and when a child should be removed with the tribe’s guidelines tending to be even more protective over the child than the state’s guidelines.”
• Native American Graves
The tribe also expressed concerns regarding the Native American Graves Protection and Reparations Act (NAGPRA), which applies to Native American human remains, funeral objects and other cultural objects on federal and tribal lands.
“[C]ertain local governments and municipalities do not follow NAGPRA procedures for the inadvertent discovery or planned excavation of the tribe’s cultural items on reservation land,” the tribe states.
• Income Tax Issues
The tribe also claims the state may not impose individual income tax on tribal citizens living and working on the reservation but that three townships in the reservation’s boundaries are not covered by the state’s agreement … a violation of federal law.
According to the state, the tax agreement in question addresses, in part, whether specific taxes apply to tribal members in named areas of the state.
The state denies any provision of the tax agreement acknowledges or concedes the boundaries of the alleged reservation.
“Defendant states in further answer that, among other things, the express language of the tax agreement precludes plaintiff from using it to establish the boundaries of the alleged reservation and tribal versus state jurisdiction in any judicial proceeding unrelated to enforcing the tax agreement,” the state says.
According to the tribe, the state’s inconsistent treatment of the reservation injures the tribe’s ability to fully assert its jurisdiction and sovereignty.
“Equally important social and political concerns hinge on reservation recognition,” the tribe states. “Tribal ancestors steadfastly resisted removal to enable future generations to continue tribal traditions and culture in the tribe’s ancestral homeland.”
They added, “Protecting the reservation is an important aspect of honoring the work of the tribe’s ancestors and continuing the tribe’s cultural traditions, which are tied to the reservation.”