US v. State of Mich.

• Decision Date: 23 March 1995
• Docket Number: No. 91-CV-10103-BC.,91-CV-10103-BC.
• Citation: 882 F. Supp. 659
• Parties: UNITED STATES of America, on Behalf of the SAGINAW CHIPPEWA TRIBE and its members, Plaintiff, Saginaw Chippewa Indian Tribe of Michigan, on its own behalf and as parens patriae for its members, Plaintiff-Intervenor, v. STATE OF MICHIGAN, County of Isabella, City of Mount Pleasant, Union Township, Isabella Township, Denver Township, Chippewa Township, Steven Pickens, and Duane Sherwood, Defendants.
• Court: U.S. District Court — Western District of Michigan

882 F. Supp. 659

UNITED STATES of America, on Behalf of the SAGINAW CHIPPEWA TRIBE and its members, Plaintiff Saginaw Chippewa Indian Tribe of Michigan, on its own behalf and as parens patriae for its members, Plaintiff-Intervenor, v. STATE OF MICHIGAN, County of Isabella, City of Mount Pleasant, Union Township, Isabella Township, Denver Township, Chippewa Township, Steven Pickens, and Duane Sherwood, Defendants.

No. 91-CV-10103-BC.

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

March 23, 1995.

COPYRIGHT MATERIAL OMITTED

Michael J. Hluchaniuk, Asst. U.S. Atty., Bay City, MI, Lauren Soll, Dept. of Justice, Environmental & Natural Resources Div., Indian Resources Sec., Washington, DC, for plaintiff.

Frank R. Jozwiak, Seattle, WA, Michael Phelan, Saginaw Chippewa Indian Tribe, Mount Pleasant, MI, for plaintiff-intervenor.

R. John Wernot, Jr., Ross Bishop, Asst. Attys. Gen., State Affairs Div., Lansing, MI, for State of Mich.

Larry J. Burdick, Mark H. Duthie, Office of the Pros. Atty., Mt. Pleasant, MI, for County of Isabella, Isabella Tp., Denver Tp., Chippewa Tp., Steven Pickens.

Sue A. Jeffers, William J. Shirley, Mt. Pleasant, MI, for City of Mt. Pleasant.

Paul H. Chamberlain, Mt. Pleasant, MI, for Union Tp., Duane Sherwood.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS

CLELAND, District Judge.

I. Background

This matter is before the court on cross motions for summary judgment.¹ This controversy arises from the levying of ad valorem property taxes by the defendants upon lands owned by individual members of the plaintiff Tribe or collectively by the Tribe itself.² On February 10, 1988, the plaintiffs paid $1,449.37 to satisfy 1987 ad valorem taxes levied by Isabella County and Union Township. Since 1988, plaintiffs have refused to pay any further ad valorem taxes and initiated this suit in 1991 for reimbursement of the $1,449.37 and to enjoin defendants from further levy of ad valorem taxes.

This case has a complex procedural history, only the highlights of which require exposition. Oral argument has twice been held in this matter: first, with regard to the issue of reservation status (i.e., whether a reservation was created and whether, if created, it was diminished) and tribal status (i.e., whether the tribe was dissolved pursuant to the treaty of 1864), and second, with regard to the propriety of levying ad valorem property taxes.

Prior to the second oral argument, the court ordered briefing by the parties on the ultimate issue of the propriety of imposing ad valorem taxes upon the instant property. In the order, the court noted that "nearly all the parties agree³ that the land specifically at issue here originates from that portion of land patented to James Gruette in 1871 pursuant to the treaties of 1855 and 1864, granting to him an unrestricted fee simple absolute estate in land. See, Pl. First Am. Complaint, p. 3, ¶ 7; Def. State of Michigan Answer, p. 6, ¶ 7; Def. Township Answer, p. 3, ¶ 7; Def. County of Isabella Answer, p. 3, ¶ 7."

At the second oral argument, held November 8, 1994, the court inquired of each party and was assured of the agreement of the parties that all land involved in this case is unrestricted fee simple land patented pursuant to the treaties of 1855 and 1864.⁴

The relevant treaties reflect the tenor of the times, and called for assimilation of Indians. One step toward this goal was to allot parcels of land to individual Indians. Thus, the treaty of 1855 provided for specific grants of land to various classes of Indians i.e. head of family, single persons, etc..

And the said Chippewas of Saginaw and of Swan Creek and Black River, shall have the same exclusive right to enter lands within the tracts withdrawn from sale for them for five years after the time limited for selecting the lands to which they are individually entitled, and the same right to sell and dispose of land entered by them, under the provisions of the Act of Congress known as the Graduation Act, as is extended to the Ottawas and Chippewas by the terms of said agreement.

Article 1, treaty of 1855 (emphasis supplied) (amended portion in s).

After describing the particular consideration for the agreement, the treaty states:

The tribal organization of said Indians, except so far as may be necessary for the purpose of carrying into effect the provisions of this agreement, is hereby dissolved.

Article 6, treaty of 1855 (emphasis supplied).⁵

The treaty of 1864 then provided a further step toward assimilation by providing for an eventual end to the relationship between Indian allotted as beneficiary and United States as trustee (with the land as the res).

After selections are made, as herein provided, the persons entitled to the land may take immediate possession thereof, and the United States will thenceforth and until the issuing of patents as hereinafter provided, hold the same in trust for such persons, and certificates shall be issued, in a suitable form, guaranteeing and securing to the holders their possession and an ultimate title to the land. But such certificates shall not be assignable and shall contain a clause expressly prohibiting the sale or transfer by the holder of the land described therein.

After the expiration of ten years, such restriction on the power of sale shall be withdrawn, and a patent shall be issued in the usual form to each original holder of a certificate for the land described therein PROVIDED That such restriction shall cease only upon the actual issuing of the patent; AND PROVIDED FURTHER That the President may in his discretion at any time in individual cases on the recommendation of the Indian agent when it shall appear prudent and for the welfare of any holder of a certificate, direct a patent to be issued (emphasis provided).

The scheme under the 1864 treaty required differential treatment of Indians depending on their perceived capabilities.

So soon as practicable after ratification of this treaty, the agent for said Indians shall make out a list of all those persons who have heretofore made selections of lands under the treaty of August 2d, 1855, aforesaid, and of those who may be entitled to selections under the provisions of this treaty, and he shall divide the persons enumerated in said list into two classes, viz: `competent' and `those not so competent.'

Article 3, treaty of 1864.

* * * * * *

The United States agrees to issue patents to all persons entitled to selections under this treaty, as follows, viz: To those belonging to the class denominated `competents,' patents shall be issued in fee simple, but to those belonging to the class of `those not so competent,' the patent shall contain a provision that the land shall never be sold or alienated to any person or persons whomsoever, without the consent of the Secretary of the Interior for the time being.

Article 3, treaty of 1864 (emphasis supplied).

Although urged by plaintiffs and defendants alike to address the questions of reservation and tribal status, the court finds that to address these issues would be to create mere dicta. Since the issues of reservation and tribal status do not affect the propriety of the ad valorem property taxes levied here, the court declines to address them. This decision is a vexing one in light of the time and effort put forth by the parties in addressing these status issues which appeared more relevant prior to recent case law. The court appreciates this effort, but perceives a duty to refrain from analysis which exceeds necessity. Accordingly, the related issue of abstention with regard to the issue of tribal status is also beyond the reach of this opinion.⁶

II. Standard

Summary judgment is proper only where the moving party shows that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when "the record as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The court is required to ask "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." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). The party opposing summary judgment must present "affirmative evidence in order to defeat a properly supported motion for summary judgment." Id. at 1479, citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Discussion

A. Jurisdiction

The first issue raised by Defendant State of Michigan in its answer is whether jurisdiction is proper in this federal district court in light of 28 U.S.C. § 1341 which precludes the district court from enjoining, suspending or restraining tax levy or collection where a plain, speedy, and efficient remedy exists in the state courts.

Defendant's argument has been rejected by the United States Supreme Court where either the United States or the Tribe itself brings the action:

Here the United States could have made the same attack on the State's assertion of taxing power as was in fact made by the Tribe. We think that the legislative history of § 1362, though by no means dispositive, suggests that in certain respects tribes suing under this section were to be accorded treatment similar to that of the United States had it sued on their behalf. Since the United States is not barred by § 1341 from seeking to enjoin the enforcement of a state tax law, ... we hold that the Tribe is not barred from doing so here.

Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 474-75, 96 S.Ct. 1634, 1641-42, 48 L.Ed.2d 96 (1976).

Therefore, 28 U.S.C. § 1341 will not bar the instant cause of action and jurisdiction is proper in this federal...