Friday, August 31, 2007

Gripe #1 about CWAG Deskbook

The American Indian Law Deskbook, published by the Conference of Western Attorneys General, put out its 2006 supplement recently (following its 2005 supplement) to the Third Edition. There is a citation to a case near and dear to my heart, Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney, 369 F.d 960 (6th Cir. 2004) (aka the Turtle Creek Casino litigation), in both the 2005 and 2006 supps.

And, frankly, the text and description of this case by CWAG is troubling, if not offensive.

Both supplements read:

"On circuit court of appeals has held, moreover, that the Executive Branch possessed the power to terminate the trust relationship with a tribe. [citation to the case] (where Department of the Interior terminated the government-to-government relationship in 1872, the requisite "empirical indicia of recognition" essential to federally-acknowledge tribal status was absent)."

This is not at all what that case was about. The westlaw headnote states, "The Court of Appeals, Clay, Circuit Judge, held that Indian tribe was restored tribe, for purposes of Indian Gaming Regulatory Act." That was the only question raised at the appeals stage. The lower court held in addition that the land upon which the Turtle Creek Casino stood was restored lands for purposes of the gaming act. 198 F.Supp.2d 920 (W.D. Mich. 2002).

The CWAG reference is troubling for at least two reasons: (1) there is no reference in the supp. or the 3rd edition to the fact the GTB v. US Atty made significant new law about the meaning of the restored tribes/restored lands exception to the gaming act; (2) the CWAG version of the 6th Circuit opinion takes a minor point about the legal history of the Grand Traverse Band and misconstrues that as the holding of the case.

On the first point, the Turtle Creek litigation was the first instance where the National Indian Gaming Commission opined that an Indian tribe that had been administratively recognized was eligible for the restored tribe exception to the gaming act [a truly excellent piece of legal and probably political work from Kevin Washburn, then NIGC general counsel; at that point, the US accepted that determination and dropped out of the litigation, leaving the intervenor State of Michigan as the sole defendant]. The federal courts agreed with that determination, as have other courts in other contexts. To characterize the case as holding anything other than this holding is simply incorrect. To say that the holding is that the Executive Branch may legally terminate an Indian tribes is absolutely wrong. Moreover, the Deskbook never even mentions the real holding of the case in its gaming section.

Which leads to the second point, which is trickier, but very important. Yes, the Secretary of Interior "administratively terminated" the Grand Traverse Band and several other Michigan tribes in 1872 or thereabouts. As a matter of political fact, the Band was terminated as of 1872, a fact with which all the parties and the courts agreed. For 108 years, the Department refused to recognize the Band as being eligible for reorganization, or entitled to assert land claims and treaty rights, or, most importantly, eligible for fee to trust acquisitions. Both the lower court and, implicitly (because the question wasn't raised there) the court of appeals, recognized that the 1872 decision was illegal. So, as a matter of law, the Secretary's decision was invalid. As a matter of politics, this invalid decision was the end of the story until 1980, when the Band was restored to federally recognized status.

Interestingly, if my recollection is accurate, the State of Michigan did argue in the 1970s that the administratively terminated Michigan tribes had lost their status as tribes in U.S. v. Michigan, an argument resoundingly rejected in 1979. 471 F. Supp. 192, 264-65 (W.D. Mich. 1979).

Finally, the plain text of the 6th Circuit opinion contradicts the CWAG interpretation of the case: "In 1872, then-Secretary of the Interior, Columbus Delano, improperly severed the government-to-government relationship between the Band and the United States, ceasing to treat the Band as a federally recognized tribe. This occurred because the Secretary had misread the 1855 Treaty of Detroit, [11 Stat. 621]." (emphasis added).

Hopefully, the next supplement or edition of the Deskbook will correct this error. Maybe if they read this blog....

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