Parts of northern Michigan not a reservation, Appeals Court rules

Mark Hicks
The Detroit News

Parts of Michigan’s northwestern Lower Peninsula were not intended to be designated a reservation, a court ruled Tuesday, tossing an appeal from the Little Traverse Bay Bands of Odawa Indians.  

The band filed a lawsuit against Michigan in 2015 that targeted more than 300 square miles in Emmet and Charlevoix counties. Representatives have said they wanted to end legal conflicts with state and local governments.

Opponents of designating the land a reservation feared the declaration would disrupt zoning rules, law enforcement and taxation in many communities.

The band fought against a federal judge’s 2019 decision that an 1855 treaty "could not plausibly be read to have created a reservation." In its ruling Tuesday, the U.S. Court of Appeals for the Sixth Circuit agreed with the lower court's finding that the group did not have a reservation.

Ruling Tuesday came nearly two years after federal judge's decision.

Citing the 1855 treaty, the Appeals Court said, “the Band and the United States agreed to allow land in northern Michigan to be ‘withdrawn from sale for the benefit of said Indians.’… We hold that the Treaty created an arrangement closer to a land allotment system than a reservation” to allow band members individual allotments of land on which to establish permanent homes.

The band, which includes at least five Ottawa and Chippewa tribes, has lived in northern Michigan for more than 400 years and in the 19th century signed several treaty agreements with the government that allowed them to reserve and own land as more White settlers moved into their territory and federal officials sought to relocate tribes west, according to the court filing.

The band was "determined to stay in their home territory," according to the filing. The band had approached President Andrew Jackson about selling some of their land and in return, staying in Michigan instead of being removed to Indian settlements in the West. Fearful they'd be removed by force, tribal members went to Washington, D.C., in 1835 to negotiate the sale of land, but no federal official met with them, the filing said.

They lived on a temporary reservation after signing a treaty in 1836 and sought to remain in Michigan permanently through another government deal in 1855.

The federal government did not identify the lands listed in the 1855 treaty as a reservation and “during the negotiations, the leaders of the Band made clear that they did not want land under federal superintendence or federal control," the Appeals Court said.

"Indeed, tribal members made repeated requests during treaty negotiations to have title to land that would be equal to that of their white counterparts.”

The Appeals Court also examined whether there existed federal superintendence required to establish an Indian reservation under federal law and found the "practical construction of the Treaty ... further supports the notion that the federal government did not intend, nor did it seek, to guard over any of the land the tribal members owned as it would a reservation."

"Rather, the United States and the Band negotiated a treaty that the parties believed would finally lead to the Band’s independence. The Band’s ancestors understood that the treaty would provide individual allotments of land to its members ... And it appears the Band’s ancestors not only agreed to this arrangement, but also desired it, to ensure they would never lose their homes in Michigan.

"As a result, we find that the Treaty of 1855 did not create a system of federal superintendence sufficient to establish an Indian reservation for the Band."

Attorneys and tribal representatives did not immediately respond to a requests for comment Tuesday night on the decision.

Neither did officials representing Gov. Gretchen Whitmer, who was named in the lawsuit.