Respondents Brief — Little Traverse Bay Bands of Odawa Indians, Petitioner v. Gretchen Whitmer, Governor of Michigan, et al.

No. 21-769

In the

Supreme Court of the United States

________________

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

v.

Petitioner,

GRETCHEN WHITMER, Governor of the

State of Michigan, et al.,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

________________

BRIEF IN OPPOSITION

________________

R. LANCE BOLDREY

JILL M. WHEATON

COURTNEY F. KISSEL

Counsel of Record

ERIN A. SEDMAK

DYKEMA GOSSETT PLLC

DYKEMA GOSSETT PLLC 2723 S. State St.

201 Townsend

Suite 400

Suite 900

Ann Arbor, MI 48104

Lansing, MI 48933

(734) 214-7629

jwheaton@dykema.com

Counsel for Respondents Emmet County Lake Shore

Association and The Protection of Rights Alliance

January 24, 2022

QUESTION PRESENTED

In the 1855 Treaty of Detroit, the United States

agreed to a process under which certain individual

members of the political predecessors of the Little

Traverse Bay Bands of Odawa Indians (“Band”) could

select small parcels from a 337-square-mile area of

public land in Michigan and obtain fee title. Through

this process, Band members acquired fee title to only

a small fraction of the land. For nearly 200 years,

state and local authorities have exercised jurisdiction

over the land, and today, it is populated

overwhelmingly by non-Indians.

In 2015, 160 years after the 1855 Treaty, the Band

belatedly asserted that the Treaty established a

permanent reservation over all 337 square miles and

sought to enjoin state and local authorities from

exercising jurisdiction within that area. In a thorough

51-page opinion, the district court concluded that the

Treaty did not establish a reservation. A Sixth Circuit

panel unanimously affirmed, and the full court denied

en banc review without dissent.

The question presented is:

Whether both courts below erred in applying

traditional tools of Indian treaty interpretation and

this Court’s precedents to conclude that the 1855

Treaty did not establish a permanent 337-square-mile

Indian reservation for the Band?

ii

CORPORATE DISCLOSURE STATEMENT

Respondents Emmet County Lake Shore

Association and The Protection of Rights Alliance

have no parent corporation, and no publicly held

corporation owns 10 percent or more of their stock.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES ...................................... iv

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 3

A. Legal Background ........................................ 3

B. Factual Background ..................................... 5

C. Proceedings Below ...................................... 10

REASONS FOR DENYING THE PETITION ......... 17

I.

The Sixth Circuit’s Decision Does Not

Conflict With Decisions Construing Different

Treaties And Involving Different Tribes And

Different Issues ................................................. 18

II. Both Courts Below Correctly Concluded That

The 1855 Treaty Did Not Establish An Indian

Reservation ........................................................ 27

A. The 1855 Treaty Did Not Set Aside Land

for Use as an Indian Reservation .............. 28

B. The 1855 Treaty Did Not Provide for

Ongoing Federal Superintendence of the

Land ............................................................ 30

III. This Case Does Not Warrant This Court’s

Review ................................................................ 31

CONCLUSION ......................................................... 34

iv

TABLE OF AUTHORITIES

Cases

Alaska v. Native Vill. of Venetie Tribal Gov’t,

522 U.S. 520 (1998)...................................... 4, 25, 31

Arizona v. California,

373 U.S. 546 (1963)................................................ 21

Bryan v. Itasca Cnty.,

426 U.S. 373 (1976)................................................ 33

Bugenig v. Hoopa Valley Tribe,

266 F.3d 1201 (9th Cir. 2001)................................ 23

Chemehuevi Indian Tribe v. McMahon,

934 F.3d 1076 (9th Cir. 2019)................................ 21

City of Sherrill

v. Oneida Indian Nation of N.Y.,

544 U.S. 197 (2005).......................................... 27, 32

DeCoteau

v. Dist. Cnty. Ct. for Tenth Jud. Dist.,

420 U.S. 425 (1975).................................................. 3

Devils Lake Sioux Tribe v. North Dakota,

917 F.2d 1049 (8th Cir. 1990)................................ 22

Hagen v. Utah,

510 U.S. 399 (1994)................................ 5, 23, 30, 32

Herrera v. Wyoming,

139 S.Ct. 1686 (2019)............................................... 4

Hydro Res., Inc. v. EPA,

608 F.3d 1131 (10th Cir. 2010)........................ 26, 33

McGirt v. Oklahoma,

140 S.Ct. 2452 (2020)..................................... passim

Mescalero Apache Tribe v. Jones,

411 U.S. 145 (1973).................................................. 4

v

Minnesota v. Hitchcock,

185 U.S. 373 (1902)................................................ 20

Minnesota

v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999).................................. 4, 5, 19, 24

Murphy v. Royal,

875 F.3d 896 (10th Cir. 2017)................................ 23

Nebraska v. Parker,

577 U.S. 481 (2016)...................................... 5, 23, 24

Okla. Tax Comm’n

v. Citizen Band Potawatomi Indian Tribe

of Okla.,

498 U.S. 505 (1991)............................................ 4, 12

Oneida Indian Nation of New York

v. City of Sherrill,

337 F.3d 139 (2d Cir. 2003) ................................... 27

Pittsburg & Midway Coal Mining Co.

v. Yazzie,

909 F.2d 1387 (10th Cir. 1990).............................. 22

Seymour

v. Superintendent of Wash. State

Penitentiary,

368 U.S. 351 (1962)................................................ 23

Solem v. Bartlett,

465 U.S. 463 (1984).................................................. 5

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998).................................................. 5

United States v. Celestine,

215 U.S. 278 (1909)................................................ 20

United States v. John,

437 U.S. 634 (1978).......................................... 12, 25

vi

United States v. McIntire,

101 F.2d 650 (9th Cir. 1939).................................. 21

United States v. Morton,

467 U.S. 822 (1984)................................................ 19

Yellen

v. Confederated Tribes of Chehalis Rsrv.,

141 S.Ct. 2434 (2021)............................................. 20

Statute

18 U.S.C. §1151 .................................................... 3, 25

Rule

S.Ct. Rule 10 ............................................................. 18

Other Authorities

1 Cohen’s Handbook of Federal Indian Law

§3.04 (2019) ............................................................ 19

Br. for Muscogee (Creek) Nation as Amicus

Curiae, No. 18-9526, McGirt v. Oklahoma

(U.S. Feb. 11, 2020) ............................................... 26

INTRODUCTION

This case concerns a so-far unsuccessful attempt

by the Little Traverse Bay Bands of Odawa Indians

(“Band”) to rewrite history and claim a sizable chunk

of Michigan as a permanent reservation under a 167year-old treaty. In 1836, the Band—along with other

Odawa and Chippewa bands of Indians—negotiated a

treaty with the federal government by which they

collectively ceded millions of acres to the United

States, retaining a 50,000-acre permanent reservation

in the Band’s territory. But the Senate ratified that

treaty only after amending it to provide that the

reservation would exist for just five years. After

agreeing to the amendment, and determined to

remain in Michigan, Band members devised an

alternative solution: purchasing land in fee on the

open market. And when the Band restarted treaty

negotiations with the United States in the 1850s, both

parties agreed that fee ownership provided the best

path forward. The parties memorialized such an

approach in the 1855 Treaty of Detroit, July 31, 1855,

11 Stat. 621 (“1855 Treaty”).

Under the 1855 Treaty, the parties agreed that

individual Band members could select small parcels

from within a designated 337-square-mile (or 216,000acre) area of public land in Michigan and obtain fee

title. The United States would retain title to any

unselected land, which the Treaty stated it could then

sell or dispose of as it would any other public land.

Through this process, Band members obtained fee title

to numerous individual parcels, but the vast majority

of the land remained in government hands to be sold

in fee to others. Over the ensuing decades, members

2

transferred most of their individual holdings.

Consistent with that history, state and local

authorities have long exercised jurisdiction over the

area, which today is overwhelmingly populated by

non-Indians.

Nonetheless, 160 years later, the Band filed suit

against Michigan’s governor, asserting that the 1855

Treaty established a 216,000-acre permanent

reservation (more than four times the size of the

reservation rejected in 1836) and seeking to enjoin

state and local jurisdiction within that area. After

considering nearly 700 pages of briefing, tens of

thousands of pages of historical documents, and two

full days of oral argument, the district court concluded

in an exhaustive 51-page opinion that the 1855 Treaty

did not establish a reservation. The Sixth Circuit

unanimously affirmed and then denied rehearing en

banc without dissent.

The Band now seeks to convince this Court that

every judge to consider this case has gotten it wrong.

But, in fact, the decisions below faithfully follow this

Court’s precedents and are eminently correct. While

the Band claims that the decision below splits from

decisions of this Court and others, those cases involved

different treaties with different language and largely

considered different issues (such as whether a

reservation concededly established by treaty was later

disestablished or diminished by subsequent action).

This case involves the distinct language of the 1855

Treaty and the distinct (and ultimately factbound)

question of whether that Treaty established a

reservation in the first place. The Band’s claim that,

by creating a process for individual members to take

3

fee title to individual plots, the 1855 Treaty

established a permanent reservation for the Band over

four times larger than the proposed reservation that

Congress rejected twenty years earlier is both

implausible and demonstrably wrong. The Band’s

contrary arguments depend on divorcing two words in

the Treaty (“reserved” and “reservations’) from all

surrounding text and context—a method of analysis

that this Court has emphatically rejected. And while

the Band contends that this case has far-reaching

consequences, in reality, the decisions below are

specific to the 1855 Treaty and preserve decades and

decades of status quo. The only far-reaching and

expectations-defying consequences would be those

that would result were this Court to grant review and

reverse. The Court should deny the petition.

STATEMENT OF THE CASE

A. Legal Background

Congress has defined “Indian country” to include:

(1) “all land within the limits of any Indian reservation

under the jurisdiction of the United States

Government,” (2) “all dependent Indian communities

within the borders of the United States,” and (3) “all

Indian allotments.” 18 U.S.C. §1151(a)-(c). If land

qualifies as Indian country, “jurisdiction is in the tribe

and the Federal Government”—and generally not the

states—for criminal and civil purposes. DeCoteau v.

Dist. Cnty. Ct. for Tenth Jud. Dist., 420 U.S. 425, 427

n.2 (1975).

This case concerns the first of these categories:

purported reservation land. Congress has never

expressly defined “reservation,” leaving this Court to

fill the gap. In undertaking that task, the Court has

4

expressly declined to adopt a magic-words test. See,

e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145,

161 (1973) (“There is no magic in the word

‘reservation.’”).

Instead, as with the other two

statutory categories, the test for determining whether

land qualifies as a “reservation” is “[1] whether the

area has been validly set apart for the use of the

Indians as such, [2] under the superintendence of the

Government.” Okla. Tax Comm’n v. Citizen Band

Potawatomi Indian Tribe of Okla., 498 U.S. 505, 511

(1991) (quotation marks omitted); see also, e.g., Alaska

v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520,

530 (1998).

To determine whether a treaty between the

United States and a tribe established a reservation,

the Court applies long-settled principles of treaty

interpretation. “Indian treaties must be interpreted

in light of the parties’ intentions,” with “the

words … construed in the sense in which they would

naturally be understood by the Indians” who were

parties to the treaty. Herrera v. Wyoming, 139 S.Ct.

1686, 1699 (2019) (quotation marks omitted). It is

thus “a fundamental misunderstanding of basic

principles of treaty construction” to argue that

“similar language” in different treaties involving

different tribes “has precisely the same meaning.”

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 202 (1999). “Each tribe’s treaties must

be considered on their own terms.”

McGirt v.

Oklahoma, 140 S.Ct. 2452, 2479 (2020). In addition to

the treaty’s “written words,” this Court has instructed

courts to examine “the larger context that frames the

[t]reaty, including the history of the treaty, the

negotiations, and the practical construction adopted

5

by the parties.” Mille Lacs, 526 U.S. at 196 (quotation

marks omitted).

If these analytical tools demonstrate that a treaty

established a reservation, subsequent enactments or

actions may result in its disestablishment (or

diminishment). Most of this Court’s recent cases focus

on that distinct and subsequent question. See, e.g.,

McGirt, 140 S.Ct. 2452; Nebraska v. Parker, 577 U.S.

481 (2016); South Dakota v. Yankton Sioux Tribe, 522

U.S. 329 (1998); Hagen v. Utah, 510 U.S. 399, 411

(1994); Solem v. Bartlett, 465 U.S. 463 (1984). But just

as this Court is reluctant to find that a reservation has

been diminished or disestablished absent clear

legislative action, see, e.g., Parker, 577 U.S. at 488, a

reservation cannot be initially established via

ambiguities or implications.

B. Factual Background

1. The Band is a federally recognized tribe whose

members have a long connection with Michigan.

Pet.App.38a. In 1836, its predecessors, along with a

number of other Odawa and Chippewa bands of

Indians (collectively, the “bands”), agreed to treaty

terms with federal negotiators. Specifically, the bands

agreed to cede to the United States approximately onethird of present-day Michigan. Pet.App.38a-39a. In

exchange, a permanent 50,000-acre reservation in the

Band’s territory would be retained and “held in

common.” 1 Pet.App.40a. The United States also

1 Lands were also retained in the territory of other bands,

whose modern-day successors consist of four federally recognized

tribes.

6

promised the bands land “West of the Mississippi” if

they chose to relocate. Pet.App.40a.

The Senate, however, opposed the creation of a

50,000-acre permanent reservation for the Band.

Pet.App.40. The Senate thus amended the negotiated

treaty language to provide that the reservation would

expire after five years. Pet.App.40a. In return, the

United States agreed to make a $200,000 principal

payment to the bands at the time of the “surrender[]”

of the reservation, along with annual interest

payments until then.

Pet.App.40a. The bands

approved these modifications. Pet.App.40a.

2. The temporary reservation established by the

1836 treaty expired in 1841, and though the United

States did not remove the bands, their future in

Michigan remained uncertain.

Pet.App.42a.

Determined to stay in Michigan, individual Band

members began purchasing land in fee, partly using

the ongoing interest payments from the federal

government. Pet.App.40a-41a.

In the 1850s, with more settlers moving to

Michigan, the United States and the bands renewed

their discussions. In 1855, the bands wrote to George

Manypenny—the new Commissioner of Indian

Affairs—to explain that “we need means to buy more

lands.”

Pet.App.44a.

In internal federal

correspondence, Manypenny recognized that “[t]here

is no prospect of [the bands] ever being willing to

emigrate, nor does Michigan desire to have them

expelled.” Pet.App.45a. Accordingly, Manypenny

supported a policy of giving “titles in fee to individuals

for separate tracts.” Pet.App.46a. The Secretary of

the Interior “approved” that policy. Pet.App.46a.

7

3. In July 1855, the United States and the bands

(which the United States amalgamated as a single

political entity) convened in Detroit to negotiate a new

treaty. Pet.App.47a. Still scarred by their experience

with the 1836 treaty, the bands’ delegates opposed any

arrangement under which the United States would

hold land “by a big string ready to pull.” D.Ct.Dkt.55811 at 7144. The delegates emphasized that they had

recently purchased lands in fee and that they wanted

to hold fee title to newly acquired land, like the “white

man.” Pet.App.49a; see D.Ct.Dkt.558-11 at 7144 (“[I]t

is the wish of many of us that you grant us

papers, … we want to choose like the whites & have

their titles.”).

The federal delegates acceded to these requests.

They saw “no difficulty” with granting “absolute title,

save a temporary restriction upon your power of

alienation.” Pet.App.49a. They agreed to meet with

the bands’ delegates to designate areas from which

members could select their individual fee lands.

Pet.App.50a. And they explained that “it is the

intention of the Government to allow each head of a

family 80 acres of land & each single person over 21

years of age 40 acres.” Pet.App.50a (alteration

omitted).

After the parties reached a consensus about land,

they transitioned to other topics, including the unpaid

$200,000 principal payment referenced in the 1836

treaty. Pet.App.51a. Some of the bands’ delegates

requested that the government retain the principal

and

continue

paying

interest

indefinitely.

Pet.App.51a.

The federal delegates disagreed,

explaining their desire to “have you civilized citizens

8

of the State.” Pet.App.51a. The federal delegates thus

proposed that the United States would make

payments for only ten years. See Pet.App.51a-53a. In

response, the bands’ delegates explained that “we are

satisfied” and asked that the treaty “be honestly

executed.” Pet.App.53a.

4. The 1855 Treaty memorialized these

negotiations. Article 1 addressed land issues and

provided that, for a ten-year period, the United States

would “withdraw from sale” “unsold public lands” in

Michigan, which the Treaty described in eight clauses.

The land withdrawn to allow for selection by

individual members of the Band’s predecessors

consisted of 337 square miles and over 100 miles of

Lake Michigan shoreline. Pet.App.114a-15a. Article

I divided the ten-year selection period in half. During

the first five-year period, certain members of the

bands could “select[]” either “80 acres of land” or “40

acres of land” from “within the tract reserved” for

those “selections.” Pet.App.116a. Following these

“selections,” “the persons entitled to the land” would

receive “certificates … guaranteeing and securing to

the holders their possession and an ultimate title to

the land.” Pet.App.116a. Those certificates would

“contain a clause expressly prohibiting the sale or

transfer by the holder of the land” for ten years, but

members would receive “a patent … in the usual form”

afterward. Pet.App.118a.

During the second five-year period, the United

States would allow members to “purchase[]” any

unselected land within the 216,000-acre tract.

Pet.App.119a.

Article I stated that lands “so

purchased … shall be sold [by the United States]

9

without restriction, and certificates and patents shall

be issued for the same in the usual form as in ordinary

cases.” Pet.App.119a. Article I provided that, if any

land remained unselected or unpurchased after the

two five-year periods, it “may be sold or disposed of by

the United States as in the case of all other public

lands.” Pet.App.119a. Finally, Article I stated that

the Treaty did not “prevent the appropriation … by the

United States, of any tract or tracts of land within the

aforesaid reservations.” Pet.App.120a.

The Treaty’s remaining provisions addressed

matters other than land. Article 2 explained that the

United States would make payments to the bands for

ten years; Article 3 released the United States from

claims related to previous treaties with the bands;

Article 4 addressed the provision of interpreters;

Article 5 dissolved the fictional tribal entity created

for purposes of Treaty negotiation; and Article 6 made

the Treaty binding upon ratification. Pet.App.120a123a. The Senate ratified the Treaty in 1856.

Pet.App.13a.

5. Following ratification, the United States

struggled to implement the 1855 Treaty. Rapid

turnover among federal officials during and after the

Civil War led to widespread confusion, causing errors

and delays in the land-selection process. Pet.App.56a57a. Congress ultimately intervened. In 1872, it

enacted a law that assisted members in obtaining

patents for parcels that they had selected and

“restored” “undisposed” lands “to market,” thereby

effectuating the Treaty’s language. Pet.App.58a. In

1875 and 1876, Congress enacted two more laws to

facilitate the provision of patents for selected lands

10

while again restoring undisposed lands for public sale.

Pet.App.58a-59a.

Ultimately,

Band

members

acquired fee title to only a small fraction of the 337square-mile area. See D.Ct.Dkt.582-7 at 9763 (map

identifying land selections).

In the last quarter of the nineteenth century, the

United States maintained detailed records of Indian

reservations, but, consistent with the terms of the

Treaty and the individual fee interests obtained, those

records did not identify any reservation for the bands.

Pet.App.28a. In 1887, Andrew Blackbird—a collegeeducated Band delegate to the Treaty negotiations

and a Treaty signatory—published a history of the

bands, which identified no permanent reservation.

D.Ct.Dkt.600-125. In 1936, a federal official wrote to

the Commissioner of Indian Affairs and explained that

the Band had not lived on a reservation “for nearly a

century”; that Band members “are not wards of the

federal government”; and that “[t]hese people have

been citizens of the State of Michigan and come under

the laws of the state.” D.Ct.Dkt.560-55 at 9162. In

2014, in response to a FOIA request, the Interior

Department did not identify the lands referenced in

the Treaty as a reservation. D.Ct.Dkt.75-3. And

today, non-Indians account for over 90% of the area’s

population.

C. Proceedings Below

1. In August 2015, 160 years after the 1855

Treaty, the Band filed suit against Michigan’s

governor, asserting that the 1855 Treaty created “a

permanent nearly-216,000 acre reservation” for the

Band. D.Ct.Dkt.1 at 7. The Band sought “an order

declaring that the lands within the boundaries of the

11

Reservation are Indian country under federal law and

enjoining the State from its improper exercises of

authority.” D.Ct.Dkt.1 at 2. None of the other tribes

that signed the 1855 Treaty intervened as plaintiffs

(or ever advanced similar claims), and the United

States declined the district court’s invitation to

intervene.

Numerous parties intervened as

defendants, including the Emmet County Lake Shore

Association and The Protection of Rights Alliance

(together, the “Associations”), two nonprofit

organizations whose members own land in the large

region that the Band claims as a reservation.

D.Ct.Dkt.50. As they explained, accepting the Band’s

arguments would cause jurisdictional chaos and defy

settled expectations. See, e.g., D.Ct.Dkt.27, 47.

The defendants moved for summary judgment,

asserting that the 1855 Treaty did not create a

reservation and that any reservation would have long

since been disestablished. Pet.App.36a. After two full

days of oral argument, the district court granted their

motions, holding that “the 1855 treaty cannot

plausibly be read to create an Indian reservation, even

when giving effect to the terms as the Indian

signatories would have understood them and even

when resolving any ambiguities in the Treaty text in

favor of the Indians.” Pet.App.37a.

The court began by rejecting the Band’s argument

that it had to demonstrate only “some federal action

creating a ‘set aside’ of land.” Pet.App.69a. The court

instead recognized that, under this Court’s precedent,

the court must assess whether the 1855 Treaty “‘[1]

validly set apart’ the disputed lands ‘for the use of the

Tribe as such, [2] under the superintendence of the

12

Government.’” 2 Pet.App.69a-70a (quoting Okla. Tax

Comm’n, 498 U.S. at 511, in turn quoting United

States v. John, 437 U.S. 634, 649 (1978)). The court

concluded that neither requirement was satisfied.

Examining pre-Treaty history and context, the

court found that the United States had “two primary

objectives” in negotiating the Treaty:

“(1) the

provisioning of permanent homes for Indians who had

signed the 1836 Treaty, with said homes being broken

into ‘separate tracts’ with the title in fee belonging to

the individual, rather than being held in common by

the Band; and (2) the settlement and consolidation of

monies and services owed to the Indians under

previous treaties.”

Pet.App.72a.

The court

determined that “the unmistakable intention of the

Bands going into the treaty negotiations was securing

additional monetary compensation so that they could

continue to successfully buy up lands as they had been

since at least the 1840s.” Pet.App.72a. And the court

found that “[t]he Treaty Journal capture[d] the

sentiment

of

the

pre-negotiation

history.”

Pet.App.73a.

Turning to text, the court explained that, when

“placed in the proper historical context and

interpreted with that context in mind, the only

reasonable conclusion is that the plain and

unambiguous terms do not create a federal set aside of

2 Notably, earlier in the litigation, the Band itself identified the

test applied by the district court as the correct one. See

D.Ct.Dkt.80 at 1305-06 (acknowledging that this Court “ask[s]

whether the area has been validly set part for the use of the

Indians as such, under the superintendence of the Government”

(quoting Okla. Tax Comm’n, 498 U.S. at 511)).

13

land for use as a reservation.” Pet.App.82a. Rather,

the parties “clearly and methodically” sought to

accomplish the following:

(1) Band representatives at the Treaty

Council identified a particular area of

Michigan where their members would be able

to select a 40 to 80 acre parcel of land

depending on their familial status;

(2) The United States withdrew the

designated lands from public sale so they

would not otherwise be sold and would

remain available for selection by individual

Band members;

(3) The United States (through the Indian

Agent) would compile a list of eligible

members within a year;

(4) The individual Band members were then

allowed five years to make their land

selection from the parcel designated by their

representative at the Treaty Council;

(5) Once a selection of land was made, the

United States issued a certificate, which

authorized the selector to possess the land,

but which would contain a restraint on

alienation for ten years;

(6) Then, once the five-year term for land

selection expired, all the lands not selected

‘remain[ed] the property of the United

States,’ and the government continued to

withhold them from public sale, to allow Band

members [to] purchase the unselected land at

14

the same prices and using the same methods

as other public land was sold;

(7) Finally, ten years after the Band members

were first able to make their selections, any

land that had gone unselected and

unpurchased could be ‘sold or disposed of by

the United States as in the case of all other

public lands.’

Pet.App.82a-83a (capitalization altered). The court

found these terms “perfectly consistent with

Manypenny’s stated desire” to provide “individual

tracts of land, with the title to the land being held in

fee by each head of household”—and perfectly

inconsistent with the creation of a permanent

reservation for the Band as a collective. Pet.App.83a.

The court buttressed this conclusion with the

commonsense observation that the Senate did not

reject a 50,000-acre permanent reservation in 1836,

just to create a permanent reservation over four times

as large just two decades later. Pet.App.99a n.4.

The court then offered an “additional reason” for

rejecting the Band’s claim: The Treaty did not provide

for “ongoing federal superintendence” of the land.

Pet.App.83a. For land selected within the first fiveyear period, “the parties agreed that after the

temporary restraint on alienation, the land would be

owned by the individuals, who would hold patents,

and the lands would be freely alienable.” Pet.App.84a.

For land purchased within the second five-year period,

“there were not even temporary restraints on

alienation or other indicia of ongoing federal

superintendence.” Pet.App.84a. In addition, the court

found that the Band “clearly understood” from the

15

federal delegates’ resistance to the bands’ financial

proposals “that the 1855 Treaty did not provide for

ongoing federal superintendence.” Pet.App.85a-86a.

The court next explained why the Band’s

“arguments in favor of a reservation having been

created are not persuasive.” Pet.App.86a. Beyond

“fragmentary quotations, divorced of their context and

quoted in isolation,” Pet.App.86a, “there [wa]s no

record of the [Band’s] treaty construction in the

briefing,” forcing the court to try to piece together the

Band’s argument from a “demonstrative exhibit” used

at oral argument, Pet.App.102a & n.6. The Band then

“changed course at oral argument, offering its own

theory of treaty interpretation for the first time”—viz.,

that the Treaty “simultaneously created Indian

reservations for the Bands while also allowing for

allotments.” Pet.App.101a-02a. The court criticized

the Band for “isolat[ing] particular phrases from the

Treaty.” Pet.App.93a. The court continued: “When

placed in the proper context,” the phrases “tract

reserved” and “tracts of land within the aforesaid

reservations” in fact “clearly and unambiguously”

foreclosed any claim that the Treaty created a

permanent reservation. Pet.App.94a.

Because the court concluded that the 1855 Treaty

did not establish a reservation, it did not address the

parties’ disestablishment arguments. Pet.App.104a.

2. The Band appealed to the Sixth Circuit, which

unanimously affirmed the district court’s “wellreasoned opinion,” concluding that the 1855 Treaty

did not “set apart land for” the “purpose” of an Indian

“reservation,” but rather established a process “akin”

to the “allotment” of public domain lands.

16

Pet.App.19a, 25a, 35a. The Sixth Circuit agreed with

the district court that “the Treaty negotiations

illustrate[d] that the Band and the federal

government wished to provide tribal members with

individual titles to land.” Pet.App.26a. It found that

the “practical construction” of the Treaty supported

that conclusion, as Band leaders recognized after the

Treaty that the bands had “renounced their

chiefdoms” and were “now ‘under the laws of the State

of Michigan and the United States.’” Pet.App.27a.

The court noted that post-Treaty federal records did

not identify the 337-square-mile area as a reservation,

and although certain letters authored by Band

members or federal officials sometimes referenced a

“reservation,” the court found it “unclear … whether

the tribal members and federal officials used the word

… as a legal term of art.” Pet.App.27a-28a. The court

thus concluded that, “[w]hen reviewed in full, the

history of the treaty, its precedent negotiations, and

the practical construction adopted by the parties

demonstrate that the Treaty did not provide land for

Indian reservation purposes.” Pet.App.29a (quotation

marks omitted).

Although that conclusion sufficed to affirm the

district court, the Sixth Circuit also agreed with the

district court that the 1855 Treaty did not provide for

federal

superintendence

“for

purposes

of … reservation.” Pet.App.31a. As the Sixth Circuit

explained, the treaty negotiations “made clear” that

“the leaders of the Band … did not want land under

federal superintendence or federal control,” and the

government “made clear its desire for Band members

to be independent from governmental support.”

Pet.App.33a.

17

Because the Sixth Circuit concluded that the 1855

Treaty did not establish a reservation, it did not reach

other arguments pressed on appeal, including

arguments regarding disestablishment, judicial

estoppel, and issue preclusion. Pet.App.34a n.10.

3. The Band sought rehearing en banc. No judge

requested a vote, and the Sixth Circuit denied the

petition without dissent. Pet.App.111a-112a

REASONS FOR DENYING THE PETITION

After carefully studying this Court’s precedents

and the extensive historical record, every judge to

consider this case has thoroughly rejected the Band’s

much-belated claim that the 1855 Treaty established

a permanent reservation. The Band identifies no

reason to disturb that consensus or risk upending

long-settled expectations.

The 1855 Treaty established a process by which

individual Band members could select small parcels of

land from within 337 square miles of public lands and

obtain individual fee title. Neither the Band nor even

individual Band members were given the entire land

mass, members selected individual tracts covering

only a small portion of the larger area, and members

no longer own most of that land. State and local

governments have long exercised jurisdiction over the

area, which has been overwhelmingly populated by

non-Indians for many decades. As the decisions below

explain in exhaustive and factbound detail, the notion

that the Treaty and its land-selection process actually

established a 337-square-mile permanent reservation

on which the exercise of state and local jurisdiction is

broadly prohibited is irreconcilable with text, context,

and history.

18

The Band claims that the decision below splits

from decisions of this Court and various other courts

in various ways, but all those decisions dealt with

different treaties, most addressed different issues, and

none endorses the kind of reading of isolated words

stripped from context on which the Band’s position

depends. Accordingly, the Band’s petition reduces to

a plea for factbound error correction in the absence of

any error to correct. The Band’s arguments about this

case’s importance are equally unpersuasive, as the

only thing that would cause chaos and vitiate settled

expectations would be to grant plenary review and

embrace the Band’s late-breaking effort to oust

Michigan of jurisdiction over a significant portion of

the State. The Court should deny the petition.

I.

The Sixth Circuit’s Decision Does Not

Conflict

With

Decisions

Construing

Different Treaties And Involving Different

Tribes And Different Issues.

The Band asks this Court to decide “[w]hether the

1855 Treaty of Detroit established a federal

reservation for the Little Traverse Bay Bands of

Odawa Indians.” Pet.i. According to the Band, the

Sixth Circuit’s resolution of that question conflicts

with “multiple” decisions of this Court and others.

Pet.2. But the Band does not and cannot claim that

this Court, any other federal court of appeals, or any

state court of last resort has ever addressed that

question. Compare, e.g., S.Ct. Rule 10; McGirt, 140

S.Ct. at 2460 (“While Oklahoma state courts have

rejected any suggestion that the lands in question

remain a reservation, the Tenth Circuit has reached

the opposite conclusion.”). Instead, the Band contends

19

that, in three respects, the decision below conflicts

with decisions involving other treaties, other tribes,

and other issues. Even setting aside the bedrock rule

that “[e]ach tribe’s treaties must be considered on

their own terms,” McGirt, 140 S.Ct. at 2479, those

conflicts are illusory.

1. The Band first contends that this Court and

three circuits have adopted a magic-words test under

which any use of the word “reservation” in a treaty is

“always … sufficient” to establish a reservation,

regardless of context. Pet.17 (emphasis altered). In

the Band’s view, though the Treaty contains nearly

3,000 words, only two matter:

“reserved” and

“reservations.” Pet.19-20. In reality, however, this

Court is no more tolerant of divorcing terms in Indian

treaties from the company that they keep than it is of

“constru[ing] statutory phrases in isolation.” United

States v. Morton, 467 U.S. 822, 828 (1984). To the

contrary, this Court’s cases teach that both a treaty’s

“written words”—all of them—and the “larger context

that frames the [t]reaty” are critical to treaty

construction. Mille Lacs, 526 U.S. at 196.

That statutory and historical context is especially

essential when it comes to the word “reservation,”

which not only can have different meanings in

different contexts, but lacked a term-of-art meaning in

the Indian-law context for much of the nineteenth

century. See, e.g., McGirt, 140 S.Ct. at 2461; 1 Cohen’s

Handbook of Federal Indian Law §3.04[2][c][ii] (2019);

Pet.21 (citing 1852 dictionary listing multiple

definitions for “reservation”). Just as a statute dealing

with Native American issues can use the word

“recognized” in a non-term-of-art sense—i.e., without

20

“connot[ing]

political

recognition,”

Yellen

v.

Confederated Tribes of Chehalis Rsrv., 141 S.Ct. 2434,

2444-45 (2021)—a treaty can use the terms “reserve”

or “reservation” in a non-term-of-art sense that does

not connote a permanent Indian reservation for the

tribe as a collective.

Far from refuting that conclusion, the cases that

the Band invokes reinforce it. Minnesota v. Hitchcock,

185 U.S. 373 (1902), did not hold that no further

analysis is necessary whenever the word “reservation”

makes an appearance. To the contrary, the Court

explained how both the words of the treaty and the

history surrounding it demonstrated that certain

aboriginal lands never ceded to the United States

“became, in effect, an Indian reservation.” Id. at 38990. And in United States v. Celestine, 215 U.S. 278

(1909), the Court expressly admonished that “a

reservation is not necessarily ‘Indian country’”

because the word “reservation” can refer to “any body

of land, large or small, which Congress has reserved

from sale for any purpose.” Id. at 285 (emphases

added).

This Court’s more recent cases, such as Parker

and McGirt, address the distinct question whether a

reservation established by an earlier treaty was

disestablished or diminished by later legislative acts.

In that context, later references to a “reservation” may

underscore the continued existence of a reservation

that the parties agree once existed. But even in that

context, there is no magic-words test. In McGirt, for

example, this Court admonished that “[e]ach tribe’s

treaties must be considered on their own terms,” and

it was not the bare use of the word “reservation,” but

21

rather repeated language about land being “forever

set apart” as a “permanent home” for “the Creek

nation” that the Court found made the establishment

of a reservation an easy question there. 140 S.Ct. at

2479, 2460-61. Moreover, this Court’s insistence that

a reservation once established cannot be lightly

disestablished or diminished underscores that

reservation status, with all of the jurisdictional

consequences that flow from it, cannot be lightly

established.

Unsurprisingly given this Court’s teachings, the

lower-court cases that the Band cites neither adopt a

magic-words test nor conflict with the decisions below.

The Band emphasizes Chemehuevi Indian Tribe v.

McMahon, 934 F.3d 1076 (9th Cir. 2019), a case

addressing whether certain land in California lay

within the boundaries of the Chemehuevi

Reservation. But in concluding that the federal

government validly established that reservation, the

Ninth Circuit did not simply locate the word

“reservation” in the relevant document (an executive

order, rather than a treaty) and call it a day. Instead,

the court found it “clear that a Chemehuevi

Reservation was validly established” for numerous

reasons, including that this Court “expressly so

recognized” decades earlier. Id. at 1080-81 (citing

Arizona v. California, 373 U.S. 546 (1963)). The

earlier Ninth Circuit case that the Band cites, United

States v. McIntire, 101 F.2d 650 (9th Cir. 1939),

merely noted that the Flathead Nation’s treaty

established a “general Indian reservation,” without

suggesting that the bare use of the term “reservation”

is always and everywhere sufficient for the purpose.

Id. at 651.

22

The Eighth Circuit’s decision in Devils Lake Sioux

Tribe v. North Dakota, 917 F.2d 1049 (8th Cir. 1990),

is equally inapposite. There, the court observed that

an 1867 treaty between the United States and the

Sisseton and Wahpeton Sioux Bands of the Great

Sioux

Nation

established

“two

permanent

reservations” in North Dakota. Id. at 1051. But the

parties did not dispute that point; the appeal

concerned only whether the tribe had “settled its

claim” to a “lakebed” 110 years later, “in 1977.” Id. at

1054-55.

The Tenth Circuit’s decision in Pittsburg &

Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387

(10th Cir. 1990), is even further afield. There, the

court addressed whether two executive orders—one

from President Roosevelt in 1908, the other from

President Taft in 1911—“terminated” an addition to

the Navajo Reservation, the establishment of which no

one disputed. Id. at 1388. The Band notes (at 17) that,

in the course of surveying various other executive

orders terminating reservations and restoring lands to

the public domain, the court mentioned an 1872

executive order in which President Grant

“disestablished a portion of” a reservation and, “‘in

lieu’ of that portion, … set aside other lands as a

reservation.” Id. at 1405. The decision says nothing

about the bare use of the term “reservation” being

sufficient. The Band’s felt need to invoke Yazzie only

demonstrates the complete lack of authority for a test

that would substitute the mere use of the words

“reserve” or “reservation” for consideration of the full

text and context. Here, the full text and context belie

any claim that Congress sought to create 337 square

miles of Indian country (after rejecting a much smaller

23

reservation two decades earlier), rather than to simply

identify a tract of public land from which individual

fee parcels could be acquired.

2. The Band next contends that the decision below

splits from decisions of this Court and four other

circuits that have treated “allotments” as compatible

with reservation status. Pet.24, 26-27. It is hard to

see how that could form the basis of a split when,

contrary to the Band’s mischaracterization of the

court’s opinion, the Sixth Circuit expressly

“recognize[d] … that allotments are not ‘inherently

incompatible with reservation status.’” Pet.App.29a

n.8. It simply (and correctly) concluded that “a lack of

inherent incompatibility with reservation status does

not mean that an Indian reservation is established

wherever allotments are provided for.” Pet.App.29a

n.8.

Moreover, most of the Band’s cases involve the

analytically distinct question whether the allotment of

parcels within an already-established reservation

supports or accomplishes the diminishment or

disestablishment of the reservation. See, e.g., McGirt,

140 S.Ct. at 2463-64 (discussing allotment statutes

enacted in the 1900s that related to reservation

established in the 1830s); Parker, 577 U.S. at 490

(similar); Hagen, 510 U.S. at 403-04 (similar);

Seymour v. Superintendent of Wash. State

Penitentiary, 368 U.S. 351, 356-58 (1962) (similar);

Murphy v. Royal, 875 F.3d 896, 919 (10th Cir. 2017);

Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1209,

1221 (9th Cir. 2001) (en banc). But it is one thing to

reject the claim that an allotment process is sufficient

to contradict a prior decision to set aside the land for

24

the tribe’s common use, and quite another to accept

that an ab-initio process for individual fee ownership

is consistent with a reservation for tribal purposes.

The Band’s cases thus have little, if any, bearing on

the question here, which is whether the 1855 Treaty

established a reservation in the first place.

Recognizing this problem, the Band suggests that

both this Court and others have “found that treaties

created reservations even when the treaty instrument

itself provided for allotment and eventually patents.”

Pet.24. But none of the cited decisions focused on the

“allotment” issue, let alone suggested that the

allotment process affirmatively supported reservation

status (as opposed to not being sufficient to defeat

reservation status). See, e.g., Mille Lacs, 526 U.S. at

176 (resolving question about “usufructuary rights”).

Nor did any involve a treaty containing the same kind

of land-selection process enshrined in the 1855 Treaty,

in which any non-selected land remained with the

United States to dispose of however it saw fit (let alone

a prior rejection of a smaller permanent reservation or

a pattern of individual members buying land in fee).

See, e.g., Parker, 577 U.S. at 484 (treaty gave

President discretion to create allotments out of

reservation in the future and sell any unallotted land

for “benefit” of tribe).

3. The Band lastly suggests that the Sixth

Circuit’s alternative federal superintendence holding

conflicts with decisions from this Court and two other

circuits purportedly holding that “active” federal

superintendence is unnecessary under 18 U.S.C.

25

§1151(a). 3 Pet.28, 31-32. At the outset, whether

federal superintendence is required is beside the point

since both courts below held that the 1855 Treaty did

not satisfy the threshold requirement of setting aside

land for the purpose of establishing a reservation. See

pp.27-30, infra. At any rate, the Band’s argument fails

on its own terms.

The Band insists that the federal superintendence

requirement “applies only to dependent Indian

communities” under 18 U.S.C. §1151(b), not to “Indian

reservations” under 18 U.S.C. §1151(a). Pet.32. But

this Court has squarely held that “18 U.S.C. §1151”—

which covers three categories of Indian country,

including Indian reservations—“codified” “two”

separate “requirements,” one being “federal

superintendence,” which requires “indicia of active

federal control over the … land.” Venetie, 522 U.S. at

527, 534; see also id. at 529 (explaining that, “like

Indian reservations,” other Indian country must have

“been validly set apart for the use of the

Indians … under the superintendence of the

Government” (emphases altered); John, 437 U.S. at

649 (similar).

The Band suggests that “no court prior to this

litigation” has ever required a showing that a treaty

provided for active federal superintendence when a

reservation is concerned. Pet.30. But even setting

aside Venetie, that claim is belied by the very case on

which the Band relies, as McGirt concluded that the

Creek treaties established a reservation only after

3 As noted, the Band recognized earlier in the litigation that

federal superintendence is a requirement. See n.2, supra.

26

recounting

extensive

evidence

of

federal

superintendence, including the federal government’s

promise that “‘no portion’” of the Creeks’ land “‘shall

ever be embraced or included within, or annexed to,

any Territory or State’” and the federal government’s

“caveat” that the Creeks’ land would “revert to the

United States” in certain circumstances. McGirt, 140

S.Ct. at 2460-61. Indeed, the Creek Tribe itself argued

that, under the relevant treaties and statutes, “the

United States retained both a reversionary interest in

and supervisory power over” the lands at issue. Br. for

Muscogee (Creek) Nation as Amicus Curiae at 7, No.

18-9526, McGirt (U.S. Feb. 11, 2020).

Turning to the lower courts, the Band primarily

emphasizes the Tenth Circuit’s decision in Hydro

Resources, Inc. v. EPA, 608 F.3d 1131 (10th Cir. 2010)

(en banc).

But that decision addressed only

“dependent Indian communities” under 18 U.S.C.

§1151(b), as “[i]t was … undisputed that the[] lands”

at issue “d[id] not qualify as part of any Indian

reservation within the meaning of §1151(a).” Id. at

1139. And even on that question, its reasoning is

entirely consistent with the Sixth Circuit’s, as the

court explained that, under Venetie, “much like

reservations,” there are two “necessary requirements”

for dependent communities, and neither involves a

“community of reference”: “‘first, they must have been

set aside by the Federal Government for the use of the

Indians as Indian land; second, they must be under

federal superintendence.’” Hydro Res., 608 F.3d at

1148 (emphasis added).

The Second Circuit’s decision in Oneida Indian

Nation of New York v. City of Sherrill, 337 F.3d 139

27

(2d Cir. 2003), rev’d on other grounds sub nom., City of

Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197

(2005), does not conflict with the decision below

either. There, the City of Sherrill “accept[ed] the

proposition that the [disputed] properties are located

within the Oneida reservation’s historic boundaries,”

but nevertheless argued that “the properties are not

in Indian country because they were neither set aside

by the federal government for Indian use nor placed

under federal superintendence.” Id. at 155 (emphasis

added). The court rejected that argument because it

contradicted the proposition that the city

accepted: “[B]y its nature,” a reservation exists under

18 U.S.C. §1151(a) only if it satisfies “two

requirements”—the land is “set aside by the Federal

Government for the use of the Indians as Indian land”

and is “under federal superintendence.” Id. at 156

(emphasis added). That conclusion is in lockstep with

the decision below. 4

II. Both Courts Below Correctly Concluded

That The 1855 Treaty Did Not Establish An

Indian Reservation.

The Band’s petition boils down to a plea for error

correction, but there is no error to correct. Four

federal judges carefully considered the question, and

all four reached the same, unsurprising conclusion

that the 1855 Treaty provided a path to individual

land ownership rather than effectuating a transfer of

sovereignty by creating a massive reservation that

went undetected for a century-and-a-half.

4 The Band also cites two post-Sherrill Second Circuit

decisions, see Pet.32, but neither addresses 18 U.S.C. §1151.

28

A. The 1855 Treaty Did Not Set Aside Land

for Use as an Indian Reservation.

Both courts below correctly concluded that the

1855 Treaty did not set aside land for the purpose of

establishing an Indian reservation. That much is

evident from the Treaty’s text, which reveals that the

parties instead sought to establish a process by which

individual Band members would select small parcels

of land to own in fee. As Article 1 explains, the United

States agreed to temporarily “withdraw from sale”

areas of “public land” for a ten-year period, divided

into two five-year periods. Pet.App.114a. During the

first period, certain Band members could select 40- or

80-acre tracts of land; they would receive

“certificates … guaranteeing and securing … their

possession and an ultimate title to the land”; and in

the end, they would obtain “a patent … in the usual

form.” Pet.App.116a-118a. During the second period,

Band members could “purchase” any land not already

selected, and any land “so purchased” would “be sold

without restriction, and certificates and patents shall

be issued for the same in the usual form.”

Pet.App.119a. As for land that remained unselected,

the United States could “s[ell] or dispose[] of [it] as in

the case of all other public lands.” Pet.App.119a. The

“plain and unambiguous terms” thus leave no doubt

that the United States did not set aside 337 square

miles of land for the Band for permanent “use as a

reservation,” but merely “reserved” it for individual

sales during a discrete period. Pet.App.82a; see

Pet.App.25a.

That conclusion is reinforced by the pre-Treaty

context. Pet.App.26a-27a. The Band had recently

29

emerged from an experience in the 1830s in which it

thought that it had successfully negotiated for a

smaller permanent reservation of 50,000 acres, only to

settle for a temporary reservation that expired in 1841

after the Senate balked at a permanent reservation for

the Band. Pet.App.39a-40a. With the United States

having just rejected a permanent reservation, the

Band members settled in the 1840s and early 1850s on

a strategy of purchasing land in fee. Pet.App.72a.

Indeed, just before the 1855 Treaty negotiations, the

bands explained to federal officials that their members

simply wanted to “buy more lands.” Pet.App.44a.

Federal officials embraced that concept, agreeing that

granting “titles in fee to individuals for separate

tracts” offered the best solution. Pet.App.46a. That

federal acceptance of a temporary designation of

216,000 acres for individual purchases of land in fee is

far more consistent with the federal government’s

earlier rejection of a 50,000-acre permanent

reservation than the Band’s implicit suggestion that

the same government that rejected a 50,000-acre

permanent reservation in 1836 turned around and

accepted a permanent reservation over four times as

large in 1855.

The post-Treaty history underscores that the

Treaty did not establish a permanent reservation.

Late-nineteenth-century federal records of thenextant reservations conspicuously omitted the lands

listed in the Treaty. Pet.App.28a. Prominent and

learned Band members in the late-nineteenth century

did not understand the Treaty to have created a

reservation. Pet.App.27a; D.Ct.Dkt.600-125. The

federal government in the twentieth and twenty-first

centuries agreed.

D.Ct.Dkt.560-55 at 9162;

30

D.Ct.Dkt.75-3. While two statutes from the 1870s

used the term “reservation” to refer to the lands

subject to individual purchases, other post-Treaty

statutes (including another from the 1870s) did not do

so. Pet.App.28a-29a. Given that the lands were

“reserved” for individual sales—but not reserved as a

permanent homeland for the Band—those stray

references are neither surprising nor illuminating.

And the absence of comparable language in other

statutes buttresses the wisdom of this Court’s

admonition that “[t]he views of a subsequent Congress

form a hazardous basis for inferring the intent of an

earlier one.” Hagen, 510 U.S. at 420.

In short, it is little surprise that the Band is forced

to press an untenable magic-words rule. When the

terms “reserved” and “reservations” are “placed in the

proper context,” its argument collapses. Pet.App.94a.

Those terms simply refer to the fact that “eligible

Indians were entitled to make their selection[s] of

land”—which they would then hold individually and

in fee simple—“from within the larger tract

designated” for such selections. Pet.App.94a. They

are not some term-of-art code for the establishment of

a permanent reservation that would contradict all of

the Treaty’s other text and everything that the parties

“methodically” sought to accomplish. Pet.App.82a83a.

B. The 1855 Treaty Did Not Provide for

Ongoing Federal Superintendence of the

Land.

Because the lower courts’ conclusion about the

set-aside requirement is correct, the superintendence

requirement is immaterial. In all events, both courts

31

correctly concluded that the 1855 Treaty did not place

the lands at issue under federal superintendence.

Federal superintendence exists when the federal

government “actively control[s] the lands in question,

effectively acting as a guardian for the Indians.”

Venetie, 522 U.S. at 527, 533. Critically, “it is the land

in question, and not merely the Indian tribe inhabiting

it, that must be under the superintendence of the

Federal Government.” Id. at 530 n.5. Accordingly, the

superintendence requirement is met when, for

example, the government “retain[s] title to the land,”

places the land “under the jurisdiction and control of

Congress for all governmental purposes,” or exercises

“absolute jurisdiction and control” over the land. Id.

at 533-34.

The 1855 Treaty clearly does not satisfy that

requirement. Far from imposing federal control over

the land, the Treaty sought to free the land from

federal control by giving Band members fee ownership

over their selected parcels. Pet.App.118a-19a. That

same objective is reflected in pre-Treaty history: Band

members repeatedly emphasized their desire to own

land “like the whites and have their titles,” and federal

officials agreed to “cease” the bands’ dependency on

the federal government. Pet.App.33a-34a. The postTreaty history “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.” Pet.App.34a.

III. This Case Does Not Warrant This Court’s

Review.

At bottom, the Band seeks factbound error

correction of decisions that committed no error. That

32

is reason enough to deny review. But there are plenty

more reasons to do so. First, the question that the

Band asks this Court to resolve is not outcomedeterminative. Even assuming (contrary to law and

fact) that the 1855 Treaty established a permanent

reservation, the lower courts would still have to

adjudicate unresolved questions of disestablishment,

judicial estoppel, and issue preclusion. Pet.App.34a

n.10, 104a.

Nor would leaving the decisions below

undisturbed create jurisdictional confusion or unsettle

any expectations. The opposite is true. The decisions

below validate decades and decades of established

practice and settled expectations. The only thing that

would create confusion or threaten long-settled norms

would be granting plenary review and validating the

Band’s belated effort to transform a significant swath

of Michigan into Indian country. The land at issue

here has long been predominantly populated by nonIndians, and state and local governments have long

exercised jurisdiction over it. As this Court has

explained, “[w]hen an area is predominately

populated by non-Indians … finding that the land

remains Indian country seriously burdens the

administration of state and local governments.”

Hagen, 510 U.S. at 420-21. Indeed, the Court has

declined to oust states and localities of such

longstanding jurisdiction for precisely that reason.

See City of Sherrill, 544 U.S. at 213-21.

Those same concerns are at their zenith here.

Take, for instance, the members of the Associations,

who live, own property, and do business in the area

that the Band would reclassify as Indian country.

33

Rather than living under a uniform set of universally

applicable rules, if the Band prevails, the Band and its

members could enjoy absolute immunity from state

and local zoning restrictions, building codes, business

regulations, nuisance laws, taxes, criminal codes, and

more—all of which will invariably impact the

Associations’ members. See Bryan v. Itasca Cnty., 426

U.S. 373, 376-77 (1976). The Band could authorize

gaming and control the development and

administration of environmental laws in the area.

See, e.g., Hydro Res., 608 F.3d at 1138. And the

Associations’ members could now find themselves

unwittingly subject to tribal regulatory and

adjudicatory jurisdiction. See D.Ct.Dkt.27 at 3-6.

Finally, the Band’s last-ditch effort (at 35) to have

this Court invite the Solicitor General’s views should

be rejected out of hand. This case has been proceeding

with full knowledge of the United States for years.

The district court invited the United States to

intervene, but it declined the invitation. In the Sixth

Circuit, the United States expressly asked for time to

consider participation and then declined to file a brief.

The United States recognizes the Band as a federally

recognized tribe. If it believed that the Band had been

denied its permanent homeland (and that state and

local authorities had improperly assumed federal

jurisdiction) for over a century, it would have made

that view clear already. Under these circumstances,

the federal government’s decision to stay on the

sidelines is presumably a conscious (and diplomatic)

effort to give the Band a chance to make its case. The

Band has been given that chance and has failed to

persuade a single federal judge. Soliciting the views

of the Solicitor General at this point will not make this

34

case any more certworthy, but will simply place

federal authorities in an awkward position. The

proper outcome at this juncture is to deny the petition

and leave the status quo in Michigan undisturbed.

CONCLUSION

For the foregoing reasons, this Court should deny

the petition.

Respectfully submitted,

R. LANCE BOLDREY

JILL M. WHEATON

Counsel of Record

COURTNEY F. KISSEL

DYKEMA

GOSSETT PLLC

ERIN A. SEDMAK

DYKEMA GOSSETT PLLC 2723 S. State St.

Suite 400

201 Townsend

Ann Arbor, MI 48104

Suite 900

(734) 214-7629

Lansing, MI 48933

jwheaton@dykema.com

Counsel for Respondents Emmet County Lake Shore

Association and The Protection of Rights Alliance

January 24, 2022