SAGINAW CHIPPEWA INDIAN TRIBE OF MICH. v. Granholm

• Decision Date: 04 February 2010
• Docket Number: Case No. 05-10296-BC.
• Citation: 690 F. Supp.2d 622
• Parties: SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, Plaintiff, and United States of America, Plaintiff-Intervenor, v. Jennifer GRANHOLM, Governor of the State of Michigan, Mike Cox, Attorney General of the State of Michigan, and Jay B. Rising, Treasurer of the State of Michigan, Defendants, and City of Mt. Pleasant, and County of Isabella, Defendant-Intervenors.
• Court: U.S. District Court — Western District of Michigan

690 F.Supp.2d 622

SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, Plaintiff, and United States of America, Plaintiff-Intervenor, v. Jennifer GRANHOLM, Governor of the State of Michigan, Mike Cox, Attorney General of the State of Michigan, and Jay B. Rising, Treasurer of the State of Michigan, Defendants, and City of Mt. Pleasant, and County of Isabella, Defendant-Intervenors.

Case No. 05-10296-BC.

United States District Court, E.D. Michigan, Northern Division.

February 4, 2010.

Sean J. Reed, Saginaw Chippewa Indian Tribe, Mount Pleasant, MI, William A. Szotkowski, Jessica S. Intermill, Sara K. Van Norman, Vanya S. Hogen, Jacobson, Buffalo, Magnuson, Anderson & Hogen, P.C., St. Paul, MN, for Plaintiff.

Loretta S. Crum, Loretta Crum Assoc., Laingsburg, MI, Todd B. Adams, MI Dept of Attorney General, Lansing, MI, for Defendants.

John J. Lynch, Mary Ann J. O'Neil, Lynch, Gallagher, Mount Pleasant, MI, for Defendant-Intervenors.

ORDER DENYING MOTIONS TO EXCLUDE THE TESTIMONY OF EXPERT WITNESSES

THOMAS L. LUDINGTON, District Judge.

The central question raised in this case is whether 138,330 acres of land in Isabella County, Michigan, comprising the townships of Wise, Denver, Isabella, Nottawa, Deerfield, and one-half each of Chippewa and Union, is "Indian country" pursuant to federal law. 18 U.S.C. § 1151. The Saginaw Chippewa Indian Tribe of Michigan and the United States believe it is. The Michigan Officials, County of Isabella, and City of Mt. Pleasant believe it is not, or at least that most of it is not. Resolution of the question will require interpretation of historical documents, specifically two treaties entered into by the United States and the Swan Creek, Black River, and Saginaw Bands of Chippewa Indians in 1855 and 1864. See Treaty with the Chippewa Indians, U.S.-Chippewa, Oct. 18, 1864, 14 Stat. 657 ("1864 Treaty"); Treaty with the Chippewa of Saginaw, Etc., U.S.-Chippewa, Aug. 2, 1855, 11 Stat. 633 ("1855 Treaty").

Federal law defines the term "Indian country" to include land that is "within the limits of any Indian reservation, ... all dependent Indian communities within the borders of the United States, ... and all Indian allotments...." 18 U.S.C. § 1151. "Generally speaking, primary jurisdiction over land that is Indian country rests with the Federal Government and the Indian tribe inhabiting it, and not with the states." Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 527 n. 1, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (citing South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998)). Consequently, a determination that the six townships are Indian country would raise additional questions about political sovereignty, including the enforcement of state criminal laws within the six townships and whether the city, county, and state can collect property taxes in the six townships.¹

Now before the Court are Plaintiff-Intervenor United States' motions to exclude the testimony of the expert witnesses Anthony G. Gulig and Theodore J. Karamanski retained by Defendants Governor Jennifer Granholm, Attorney General Mike Cox, and Treasurer Jay B. Rising ("State Defendants" or "Michigan Defendants") Dkt. # 188 & 189; Plaintiff Saginaw Chippewa Indian Tribe of Michigan's motion to exclude the testimony of Gulig and Karamanski Dkt. # 190; the Michigan Defendants' motion to exclude the testimony of the Saginaw Chippewa's expert witnesses Gary Anderson and Bruce White Dkt. # 192; Defendant-Intervenor Isabella County's motion to exclude the testimony of the Saginaw Chippewa's experts Dkt. # 197; and the Michigan Defendants' motion to exclude the testimony of the United States' experts Frederick Hoxie and R. David Edmunds Dkt. # 198. Because the parties have not demonstrated that any of the proposed witnesses are unqualified to offer expert testimony about the historic understanding of the treaties, or that the opinions the experts intend to provide are irrelevant or unreliable, the motions will be DENIED. See Fed. R.Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

I

The Plaintiff in this case, the Saginaw Chippewa Indian Tribe of Michigan, is the successor in interest of the Swan Creek, Black River, and Saginaw Bands of Chippewa Indians² who entered into treaties with the United States in 1855 and 1864. Those treaties, however, were not the first treaties between the United States and the Chippewa Indians living in what is now Michigan. In 1807, seventeen Chippewas signed the Treaty of Detroit, ceding much of modern-day southeastern Michigan to the United States. Treaty with the Ottawa, etc., Nov. 17, 1807, 7 Stat. 105. In 1819, a second treaty was negotiated near Saginaw that ceded much of the Chippewas' land in central and eastern Michigan, including a portion of Isabella County, to the United States. Treaty with the Chippewa, U.S.-Chippewa, Sept. 24, 1819, 7 Stat. 203. In 1836, a third treaty ceded the remainder of the northwest Lower Peninsula, including the rest of Isabella County, and a substantial portion of the eastern Upper Peninsula to the United States. Treaty with the Ottawa, etc., Mar. 28, 1836, 7 Stat. 491. Finally, in 1837 and 1838, "the Saganaw sic tribe of the Chippewa nation" agreed to cede the remainder of their lands in the Lower Peninsula, and "remove from the State of Michigan, as soon as a proper location can be obtained." Treaty with the Chippewa, pmbl. & art. 6, U.S.-Chippewa, Jan. 14, 1837, 7 Stat. 528; see also Treaty with the Chippewa, U.S.-Chippewa, Dec. 20, 1837, 7. Stat. 547; Treaty with the Chippewa, U.S.-Chippewa, Jan. 23, 1838, 7 Stat. 565.

By the time the 1855 Treaty was negotiated in Detroit, the Saginaw, Swan Creek, and Black River Chippewas had largely relinquished the right to live in southern and central Michigan and agreed to move west of the Mississippi River. Many Chippewas, however, resisted the government's effort to move them westward and continued to live near the Saginaw Bay in central Michigan. See Anderson Rep. at 4-5 & nn. 6-9; Karamanski Rep. at 50-52 (discussing the population of Isabella County in the 1850s-1880s). The Saginaw Chippewa's experts contend that the Chippewas' resistance to removal, together with a limited area to which American Indians could be removed, necessitated a shift in the federal government's approach from removal toward a reservation system. Consequently, in May of 1855 President Franklin Pierce ordered all the unsold land in Isabella County withdrawn from sale for the purpose of preserving it for future use by the Chippewa Indians.

The parties' experts largely agree that the withdrawal of unsold land in Isabella County was an early example of shifting federal Indian policy during the mid-to-late nineteenth century. See Cohen's Handbook of Federal Indian Law §§ 1.03-.04 (Nell Jessup Newton et al., eds., 2005 & supp.2009); Robert N. Clinton, et al., American Indian Law: Native Nations and the Federal System 26-36 (5th ed.2007); Stephen L. Pevar, The Rights of Indians and Tribes 7-9 (3d ed.2002). The new policy would reserve from settlement small parcels of land within states or territories for Indian reservations or allotments. The reserved parcels, according to then-Commissioner of Indian Affairs George W. Manypenny, were necessary "to restrict the limits of all the Indian tribes upon our frontiers, and cause them to be settled in fixed and permanent localities, thereafter not to be disturbed." Cohen's Handbook of Federal Indian Law § 1.036a at 64 (Nell Jessup Newton et al., eds., 2005 & supp.2009).

Such a policy was also endorsed by the Michigan Legislature in an 1851 Joint Resolution, in which they requested

the government of the United States to make such arrangements for the Ottawa and Chippewa Indians as they may desire, for their permanent location in the northern part of this State, under such provisions in regard to schools, churches, agricultural and mechanical arts, as will the best promote their present and future welfare, and adjust all matters of right and equity that may now be in dispute between said Indians and said government, in a spirit of just liberality.

Joint Resolution Relative to the Ottawa and Chippewa Indians (1851), in Acts of the Legislature of the State of Michigan 258 (1851). Despite general agreement concerning the changes in mid-nineteenth century federal Indian policy, there is substantial disagreement among the experts about its application. That is particularly true with respect to the question of whether the land reserved for the Chippewa Indians in Isabella County was meant to be a "reservation," and what that term means.

For example, Gulig and Karamanski, the Michigan Defendants' experts, contend that the lands reserved in Isabella County were never intended to be a "reservation" held in trust for the benefit of the tribe or otherwise subject to federal protection. Quoting Article 6 of the 1855 Treaty, Karamanski contends that the "tribal organization" of the Saginaw, Swan Creek, and Black River Chippewa, "except so far as may be necessary for the purpose of carrying into effect the provisions of the treaty, was dissolved" in 1855. Karamanski Rep. at 4-5. Karamanski also relies on an 1871 petition allegedly sent by Saginaw Chippewa leaders to Ely S. Parker, then-Commissioner of Indian Affairs. Indeed, if the petition is genuine, a fact the Saginaw Chippewa's experts contest, it appears to support Karamanski's argument. It begins:

We the chiefs and head men of the Chippewas of Saginaw, Swan Creek, and Black River Indians of Michigan who were parties to the treaty of 1855 and that of 1864, believing that the time has now arrived when our condition as wards of the Government should cease, hereby request that steps be at once taken to close those relations as such wards.

By the conditions of the treaty of

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