Keweenaw Bay Indian Community v. Naftaly
| Decision Date | 01 June 2005 |
| Docket Number | No. 2:03-CV-170.,2:03-CV-170. |
| Citation | 370 F.Supp.2d 620 |
| Parties | KEWEENAW BAY INDIAN COMMUNITY, on its own behalf and as parens patriea for its members, Plaintiff, v. Robert NAFTALY, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
John R. Baker, Baraga, MI, Vernle (Skip) Durocher, Dorsey & Whitney LLP, Minneapolis, MN Gregory N. Longworth, Stephen D. Turner, Law, Weathers & Richardson PC, Grand Rapids, MI, for Plaintiff.
Elaine Dierwa Fischhoff, Todd B. Adams, Lansing, MI, Timothy S. Brennan, L'Anse, MI, for Defendants.
Plaintiff, the Keweenaw Bay Indian Community ("KBIC"), brings this action against Robert Naftaly, chairperson of the Michigan State Tax Commission, Robert Lupi, member of the Michigan State Tax Commission, Doug Roberts, member of the Michigan State Tax Commission, Dennis Platte, Executive Secretary of the Michigan State Tax Commission, L'Anse Township, Baraga Township, and Matthew Arko, Assessor of L'Anse and Baraga Townships. Plaintiff seeks declaratory relief prohibiting the collection of the State of Michigan's ad valorem property tax on lands held in fee simple by KBIC or its members.1 Pending before this Court are defendants' and plaintiff's motions for summary judgment. Having duly considered the parties' briefs, arguments and exhibits, for the reasons that follow, the Court will deny defendants' motion for summary judgment and grant plaintiff's motion for summary judgment.
The Court has already set forth many of the facts applicable to the instant motion in its September 27, 2004 Opinion denying defendants' motion to dismiss and incorporates such facts by reference.2 In addition the Court notes that the following facts are relevant to the resolution of the pending motions for summary judgment.
KBIC is a federally-recognized Indian tribal government organized and operating under a Constitution and bylaws approved by the Secretary of the Interior on December 17, 1936, pursuant to the Indian Reorganization Act of 1934. 25 U.S.C. § 476. Pursuant to the Treaty with the Chippewa at La Pointe, Oct. 4, 1842, 7 Stat. 591 ("1842 Treaty"), the Chippewa of Lake Superior and the Mississippi ceded the western half of Michigan's Upper Peninsula as well as portions of northern Wisconsin to the United States.
Most of the Chippewa continued to live within the ceded area and Article II of the 1842 Treaty guaranteed them the right to hunt within the ceded territory until required to remove by the President. 1842 Treaty, 7 Stat. 591. By the late 1840's, due to United States surveys of the land in the area, the Chippewa became afraid that the President would force them to remove from their residences. In February 1850, President Zachary Taylor issued a removal order, but that order was later abandoned. The Chippewa sent letters to the President asking for the creation of permanent reservations and even adopted American-style names and clothing to convince the United States government of their advanced state of civilization and thus the lack of any need for removal. According to one Indian agent at the time, removal was "the great terror of [the Indians'] lives and I hazard nothing in saying they will sooner submit to extermination than comply with it." Keweenaw Bay, 784 F.Supp. 418 (quoting Henry C. Gilbert). By 1854, the United States, under the leadership of Indian Commissioner George ManyPenny, abandoned the removal policy and substituted a policy of creating reservations for Indians near their existing habitations. Commissioner ManyPenny instructed United States officials to negotiate a new treaty with the Chippewa for the cession of land in Minnesota and Wisconsin.
A treaty was eventually signed on September 30, 1854. KBIC is the successor-in-interest of the L'Anse and Ontonagon bands of Chippewa Indians, signatories to the Treaty with the Chippewa at La Pointe, September 30, 1854, 10 Stat. 1109, ("1854 Treaty"). The Indians desired permanent homes in their present locations and the 1854 Treaty satisfied this desire by creating permanent homes for them on reservations. See United States v. Thomas, 151 U.S. 577, 582, 14 S.Ct. 426, 38 L.Ed. 276 (1894) (). Article II of the 1854 Treaty also provided that 80 acres be patented to each mixed blood Chippewa over twenty-one years of age. 1854 Treaty, 10 Stat. 1109. All land, sold or unsold, within the exterior boundaries of the Reservation as described in Article II of the 1854 Treaty, formed part of the KBIC reservation and constituted Indian Country within the meaning of 18 U.S.C. § 1151. Keweenaw Bay, 784 F.Supp. 418, 428.
Two other articles of the 1854 Treaty are important to the resolution of the instant motions. First, Article III provides in part that:
... the President may, from time to time, at his discretion, cause the whole [reservation] to be surveyed, and may assign to each head of a family or single person over twenty-one years of age, eighty acres of land for his or their separate use; and he may, at his discretion, as fast as the occupants become capable of transacting their own affairs, issue patents therefore to such occupants with such restrictions of the power of alienation as he may see fit to impose. And he may also, at his discretion, make rules and regulations, respecting the disposition of the lands in case of the death of a family, or single person occupying the same, or in case of its abandonment by them.
1854 Treaty, 10 Stat. 1109. Second, Article XI provides that:
All annuity payments to the Chippewas of Lake Superior, shall hereafter be made at L'Anse, La Pointe, Grand Portage, and on the St. Louis River; and the Indians shall not be required to remove from the homes hereby set apart for them. And such of them as reside in the territory hereby ceded, shall have the right to hunt and fish therein, until otherwise ordered by the President.
Id. The Reservation Fee Lands at issue in this case consist of the sold lands that were at issue in Keweenaw Bay, 784 F.Supp. 418, 428, as well as lands that were allotted or intended for allotment to the Chippewa pursuant to Article III of the 1854 Treaty. The Reservation consists of 59,840 acres located near the villages of L'Anse and Baraga. 6,223 acres in the reservation are held in trust by the United States for the benefit of KBIC, 7,912 acres are allotments held by KBIC members with restrictions upon alienation, 2,987 acres are owned in fee simple by KBIC and 688 acres are owned in fee simple by KBIC members. Nonmembers of the Community own the remaining 42,030 acres within the Reservation. After the execution of the 1854 Treaty, pursuant to Article III of the 1854 Treaty, the President assigned parcels of Reservation land to individual Chippewa Indians. The assignments at issue in this matter were made in the form of fee simple patents. Additionally when restrictions upon alienation were removed from certain restricted patents, such removal was done pursuant to the 1854 Treaty.
Defendants argue that they are entitled to summary judgment because Congress explicitly authorized the alienability of the land at issue in this case, and that the land is taxable under Cass County, Minnesota, et al. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998). Plaintiff argues that Congress has not authorized the alienability of the land at issue here, and further, that the unambiguous language of Article XI of the 1854 Treaty states that the Indians shall not be required, under any circumstances, to remove from the reservation. Plaintiff also asserts it is entitled to summary judgment because the land is not taxable under the reasoning expressed in Cass County, or an extension thereof.
Summary judgment is proper if the non-moving party has failed to raise a genuine issue of material fact as to any element of the claim, and the moving party is thereby entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The facts must be construed most favorably to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party must come forth with more than a "mere scintilla" of evidence to create a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. 2505, 91 L.Ed.2d 202.
The party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, 89 L.Ed.2d 538. Ultimately, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202.
This case poses a legal question of whether the Supreme Court's decision in Cass County, 524 U.S. 103, 118 S.Ct. 1904, 141 L.Ed.2d 90, should be extended to cases involving alienation of land that occurred pursuant to a treaty and without any Congressional statute authorizing such alienation. It also raises questions of whether Congress passed such a statute, and whether language included in the 1854 Treaty precludes taxation of the land at issue in this case.
In Count I of its complaint, KBIC claims that defendants cannot enforce the Michigan General Property Tax Act ("Act") against the Reservation Fee Lands because states and local governments...
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