United States v. State of Mich.
Decision Date | 07 May 1979 |
Docket Number | No. M26-73 C.A.,M26-73 C.A. |
Citation | 471 F. Supp. 192 |
Parties | UNITED STATES of America et al., Plaintiffs, v. STATE OF MICHIGAN et al., Defendants. |
Court | U.S. District Court — Western District of Michigan |
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James S. Brady, U. S. Atty., J. Terrance Dillon, Asst. U. S. Atty., Dept. of Justice, Grand Rapids, Mich., Elmer T. Nitzschke, Dept. of Interior, St. Paul, Minn., Bruce R. Greene, Native American Rights Fund, Boulder, Colo., Kathryn L. Tierney, Bay Mills Indian Community, Brimley, Mich., William J. James, James Jannetta, Legal Services, and Daniel T. Green, Sault Ste. Marie Tribe Bay Mills Indian Community, Sault Ste. Marie, Mich., for plaintiffs.
Gregory T. Taylor, Asst. Atty. Gen., Lansing, Mich., for defendants.
PREFACE
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 571-2, 8 L.Ed. 483 (1832) (McLean, J., concurring) (emphasis supplied).
When matters of great public and constitutional significance involving fundamental duties of the United States come here for resolution, this court assumes an extra duty of care in explaining the reasons for its decision. As always, the court states the factual basis and legal standards on which its conclusion rests so that the appellate court will know the legal grounds for this court's decision. Equally important, however, this court assumes also an affirmative obligation to attempt to educate the public concerning the basic principles underlying our constitutional democracy and the practical application of these principles in our public affairs. See, Oliver v. Kalamazoo Bd. of Education, 368 F.Supp. 143 (W.D. Mich.1973).
The above language, taken from the Northwest Ordinance, first enacted by the Confederated Congress in 1787 and reenacted by the First Congress of the United States at its very first session in 1789, is the backdrop for this action. It will be discussed in detail in the course of this opinion.
Also a backdrop of this case is the history of the American treatment of the Indians. In 1869 President Grant appointed a commission pursuant to Act of Congress of April 10, 1869 composed of "nine men, representing the influence and philanthropy of six leading States, to visit the different Indian reservations, and to `examine all matters appertaining to Indian affairs.'" Their report includes the following language:
Report of Commission of Citizens (November 23, 1869), cited in Report of Commission of Indian Affairs, 47-48 (1869). (Emphasis supplied.)
Senator Clay made similar points on the floor of the Senate in 1835. Speaking of the Cherokee Indians of Georgia, he said, as reported in the Congressional Globe for February 4, 1835:
Mr. C. said he wished to turn the attention of the Senate to the nature of the wrongs this people had suffered — to the present condition of the Cherokees, whose lands had been guarantied by the United States. He went into the examination with the utmost feelings of sorrow and regret at the miserable state to which these tribes were reduced by the laws of the States. But he would assure the honorable Senators from Georgia he was actuated by no hostile intentions to that State. Georgia was the first that made these encroachments; she originated the plan of invading the Indian rights, and she had carried it far beyond all others. He had not all these various laws before him. It was not necessary to go into details; it was sufficient to notice the results. By the first act Georgia abolished the Government of the Cherokee nation. No nation (said Mr. C.) can exist without a Government of some kind. These people had formed and established a Government in imitation of our own. But it was wholly immaterial what the humble form of that Government might be. Georgia had abolished it. She next proceeded to divide their territories into counties, and distribute them by lotteries among their citizens — every head of a family being entitled to the land drawn against his number. She did indeed reserve a small pittance of a few acres for those Indians who wished to remain within her limits, but under circumstances that rendered them worthless. She gave them no rights, no franchise, no single privilege. They were denied the power of testifying in courts of justice. No Indian could be a witness in favor of his fellows.
The present case is not a 14th Amendment case, as defendants advocate. It is an Indian treaty case in which the State asks the court to abrogate...
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