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,

Petitioner,

v.

GRETCHEN WHITMER, GOVERNOR OF THE STATE OF

MICHIGAN, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

__________________________________________________________________________________________________

BRIEF IN OPPOSITION

__________________________________________________________________________________________________

MICHAEL E. CAVANAUGH

Counsel of Record

THADDEUS E. MORGAN

FRASER TREBILCOCK

DAVIS & DUNLAP, P.C.

124 W. Allegan

Suite 1000

Lansing, MI 48933

(517) 482-5800

mcavanaugh@fraserlawfirm.com

Counsel for 10 Intervenor-Appellee Townships

i

QUESTION PRESENTED

To be treated as an Indian reservation, land

must be (1) “set apart,” (2) “for the use of Indians as

such,” and (3) “under the superintendence of the

Government.” United States v. John, 437 U.S. 634,

649 (1978) (quoting United States v. Pelican, 232

U.S. 442, 449 (1914)). Accord, e.g., Okla. Tax Comm’n

v. Citizen Band Potawatomi Indian Tribe of Okla.,

498 U.S. 505, 511 (1991) (reaffirming test). The

parties to the 1855 Treaty of Detroit, 11 Stat. 621,

agreed that the United States would temporarily

withdraw from sale unsold public lands in

designated townships for eligible band members to

select or purchase before the federal government

disposed of the remaining lands. After those

members received their fee patents, including a right

to alienation after only 10 years, the government

returned the remaining lands to market, disposed of

them, and did not exercise jurisdiction in the

relevant area. The question presented is:

Whether the lower courts correctly held that the

terms of the 1855 Treaty—considering the contemporaneous historical evidence that neither the United

States nor the band believed they were creating a

reservation—created a reservation under the John

test.

ii

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES...................................... iii

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

STATEMENT .............................................................. 4

A. The Treaty of 1836 .......................................... 4

B. The 1855 Treaty .............................................. 5

C. Post-Treaty events .......................................... 7

D. Proceedings below ........................................... 7

REASONS FOR DENYING THE PETITION .......... 15

I.

The Sixth Circuit’s analysis of the

1855 Treaty’s text does not conflict

with precedents of this or any other

Court ............................................................. 15

II. The Sixth Circuit’s conclusion, in

dicta, that the Band’s reservation

claim fails for a lack of federal

superintendence, does not conflict with

precedents of this or any other Court .......... 25

III. The question presented does not

warrant review, and there is no need

to call for the views of the Solicitor

General.......................................................... 29

CONCLUSION .......................................................... 32

iii

TABLE OF AUTHORITIES

Page(s)

Cases

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

522 U.S. 520 (1998) ....................................... 27, 28

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) ............................. 18

Choctaw Nation v. United States,

318 U.S. 423 (1943) ...............................................7

Devils Lake Sioux Tribe v. North Dakota,

917 F.2d 1049 (8th Cir. 1990) ............................. 18

Hydro Resources, Inc. v. United States EPA,

608 F.3d 1131 (10th Cir. 2010) ........................... 27

Klamath & Moadoc Tribes & Hahooskin Band of

Snake Indians v. United States,

85 Ct. Cl. 451 (1937) ........................................... 18

Leavenworth, Lawrence, & Galveston R.R. Co. v.

United States,

92 U.S. 733 (1875) ............................................... 26

Mattz v. Arnett,

412 U.S. 481 (1973) ............................................. 23

McGirt v. Okla.,

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

Minnesota v. Hitchcock,

185 U.S. 373 (1902) ............................................. 17

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Minnesota v. Mille Lacs Band of Chippewa

Indians,

526 U.S. 172 (1999) ................................... 7, 13, 20

Murphy v. Royal,

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

Okla. Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe of Okla.,

498 U.S. 505 (1991) ..................................... passim

Oneida Indian Nation of New York v. City of

Sherrill,

337 F.3d 139 (2d Cir. 2003) ................................ 28

Or. Dep’t of Fish & Wildlife v. Klamath Indian

Tribe,

473 U.S. 753 (1985) ......................................... 8, 12

Pittsburgh & Midway Coal Mining Co. v. Hazzie,

909 F.2d 1387 (10th Cir. 1990) ........................... 18

Thurston County v. Andrus,

586 F.2d 1212 (9th Cir. 1978) ............................. 24

United States v. John,

437 U.S. 634 (1978) ..................................... passim

United States v. McGowan,

302 U.S. 535 (1938) ............................................. 13

United States v. McIntire,

101 F.2d 650 (9th Cir. 1939) ............................... 18

United States v. Pelican,

232 U.S. 442 (1914) ..................................... passim

United States v. Thomas,

151 U.S. 577 (1894) ............................................. 26

v

TABLE OF AUTHORITIES—Continued

Page(s)

Wisconsin v. Stockbridge-Munsee Cmty.,

554 F.3d 657 (7th Cir. 2009) ......................... 24, 27

Statutes

18 U.S.C. 1151 ........................................................... 27

1833 Treaty, preamble, 7 Stat. 418, and Art. III ..... 16

Act of 1876, 44 Con., Ch. 105, 19 Stat. 55 (May 23,

1876) .................................................................... 13

Indian Removal Act of 1830, § 3, 4 Stat. 412 ........... 16

Other authorities

Cohen’s Handbook of Federal Indian Law,

§ 3.04[2][c][iv] (2012) .......................................... 21

Cohen’s Handbook of Federal Indian Law,

§§ 3.04[2]c][iv], 16.03[2][e] (2019) ...................... 12

1

INTRODUCTION

Petitioner Little Traverse Bay Bands of Odawa

Indians seeks to create a reservation the United

States never granted and which the Band did not

want. This reality is plain from the Treaty of 1855’s

text, which provided Ottawa and Chippewa families

the ability to select from federally owned land

“individual tracts of land, with the title to the land

being held in fee by each head of household,”

Pet.App.83a, while preserving the right of the United

States to sell remaining lands to third parties,

Pet.App.81a–82a. At the very first step, the Band’s

reservation claim collapses; the Treaty “failed to

create an Indian reservation because it did not create

a federal set aside of land for Indian purposes.”

Pet.App.83a (citing Okla. Tax Comm’n v. Citizen

Band Potawatomi Indian Tribe of Okla., 498 U.S.

505, 511 (1991). Indeed, “the Treaty could not

simultaneously set the lands aside as reservations

while also allowing for the United States to dispose

of the land in any manner it wished.” Pet.App.97a.

“[T]he only reasonable conclusion is that the plain

and unambiguous terms do not create a federal set

aside of land for use as a reservation, nor did the

Tribe’s predecessors understand them to do so.”

Pet.App.82a.

In addition, “the Treaty lacks the hallmarks of

ongoing federal superintendence” that this Court

requires for the establishment of a reservation.

Pet.App.86a (citing Citizen Band, 498 U.S. at 511).

And the contemporary historical record makes clear

the Band “did not want reservations.” Pet.App.99a.

Rather the Band’s members “wanted to hold lands as

white settlers did,” Pet.App.99a, individually, in fee,

and with the right to alienation.

2

The Band’s merits argument rests on the fact

that the Treaty used the words “reserved” and

“reservations” one time apiece. “But when these

references are put into context …, such evidence does

not present a sufficient disagreement to require

submission to a factfinder, even with all justifiable

inferences in the Tribe’s favor.” Pet.App.100a

(citation omitted).

The Band’s justifications for certiorari are

weaker still. To begin, the Band says that the Sixth

Circuit ignored the 1855 Treaty’s plain text. Pet.2–3.

But as the district court recognized, the Band’s

“discussion of the Treaty in the briefing is … flawed

because it does not provide a cohesive interpretation

of the Treaty as a whole and instead isolates

particular phrases from the Treaty.” Pet.App.93a.

The Band also argues that the Sixth Circuit’s

decision conflicts with this Court’s decisions by

holding that individual land allotments did not

create a reservation. Pet.3–4. Not so. The Sixth

Circuit recognized that allotments are not

“inherently incompatible with reservation status.”

Pet.App.29a n.8 (quoting McGirt v. Okla., 140 S. Ct.

2452, 2464 (2020)). “But 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–

30a n.8, and the Treaty’s text and context show no

reservation was created here.

Finally, the Band criticizes the Sixth Circuit for

following this Court’s numerous precedents holding

that establishment of a reservation requires active

federal government supervision. Pet.3. In so doing,

the Band fails to discuss this Court’s many decisions

imposing that very requirement, e.g., Citizen Band,

3

498 U.S. at 511; United States v. John, 437 U.S. 634,

649 (1978); United States v. Pelican, 232 U.S. 442,

449 (1914), despite initially citing the correct

standard in the district court, see D.Ct.Dkt.80 at

1305–06. And the Band also ignores that this portion

of the Sixth Circuit’s decision is mere dicta, since the

Treaty’s text and the historical record are clear “that

the Treaty did not provide land for Indian reservation purposes.” Pet.App.29a.

The Band claims that the lower court’s decision

“will sow confusion nationwide.” Pet.5. Hardly. The

decision properly canvasses this Court’s cases,

meticulously applies those cases’ legal standards,

and reaches its conclusion based on the Treaty text

and historical record that are unique to this case.

The opinion engaged in a case-specific inquiry, one

that will have no impact on any other litigation.

In the district court’s words, the Band “has

proffered pages upon pages of … hit-and-run

argumentation with respect to the Treaty’s language

and the historical record.” Pet.App.93a. Worse, the

Band’s “discussion of the Treaty in the briefing is

similarly flawed because it does not provide a

cohesive interpretation of the Treaty as a whole and

instead isolates particular phrases from the Treaty.”

Ibid. That is why both lower courts rejected the

Band’s position—not due to some imaginary dispute

with this Court’s or another Circuit’s decisions.

In sum, further consideration will not resolve a

circuit conflict, or clarify unsettled law, or fix an

error of law. It will only cast an unnecessary shadow

on the Emmet County Townships and their citizens.

It would be irregular to grant review in this one-off

case where “the 1855 treaty cannot plausibly be read

to create an Indian reservation.” Pet.App.37a.

4

STATEMENT

A. The Treaty of 1836

Petitioner Little Traverse Bay Bands of Odawa

Indians traces its history to bands that lived around

the Little Traverse Bay in northwestern Michigan.

In the 1830s, the Odawa and Chippewa Indians

became aware of the federal government’s removal

policies and attempted to reach an agreement to stay

in Michigan. Pet.App.38a. This resulted in the

Treaty of 1836. Ibid.

This Treaty shows that the Band and the federal

government knew how to negotiate for a reservation,

albeit a temporary one. In exchange for the

relinquishment of certain Michigan lands, the

Odawa and Chippewa Bands “were to receive six

reservations within Michigan, to be ‘held in common,’

including a 50,000-acre reservation on Little

Traverse Bay, various annuities and payments of

debt, and other improvements such as schoolhouses

and blacksmiths.” Pet.App.40a. But the U.S. Senate

did not want to create a permanent reservation and

“added language rendering the reservations effective

for only five years” in exchange for $200,000 that the

United States agreed to pay “whenever [the Bands’]

reservations should be surrendered.” Ibid. While the

Bands “strenuously opposed” this amendment, they

ultimately agreed to the Treaty. Ibid.

When the five-year term expired, in 1841, Odawa

and Chippewa leaders wrote President John Tyler,

asking to extend the reservation term. Pet.App.42a.

They received no response, and the United States

took no actions to remove the Band from Michigan

during the 1840s. Ibid.

5

B. The 1855 Treaty

The federal government and the Band sat down

again in July of 1855, in Detroit, Michigan, to discuss

what would eventually become the 1855 Treaty. “The

negotiations were recorded in a journal, although it

is admittedly not a word-for-word transcript.

Nevertheless, the journal provides significant insight

into the negotiations.” Pet.App.47a.

When talks turned to the type of land ownership

the Band would have, “[m]any of the Indian

representatives emphasized that they had already

been successfully purchasing lands and requested

that the lands to be given to them be issued with

patents.” Pet.App.49a. As a Band leader put it, “[w]e

wish that you would give us titles – good titles to

these lands.” Pet.App.12a. Federal negotiators

agreed: “It shall be an absolute title, save a

temporary restriction upon [the] power of

alienation.” Pet.App.49a. George Manypenny, the

U.S. Commissioner of Indian Affairs, 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.

These lands would provide “permanent homes for

individual families,” lands that the families’

“children may inherit.” Ibid.

All agreed that the goal was for the Band’s

members to be “citizens of the State [of Michigan]—

taking care of yourselves.” Pet.App.51a. The Band’s

members’ “connection with the U.S. shall cease.”

Pet.App.52a. Accordingly, the parties further agreed

that the United States would “end its administration

of the Tribes’ monetary affairs within ten years.”

Pet.App.53a. The Band “agreed to those terms.” Ibid.

6

The 1855 Treaty provided a five-year period for

the United States to “withdraw large swaths of land

in Michigan from sale for each Band, so that eligible

Indians (heads of families, unmarried adults, and

orphans) within each Band could make their own

selections of land within their Band’s designated

area, for which they would hold the patent (after a

ten-year restraint on alienation).” Pet.App.53a. After

those five years, the United States would, for an

additional five years, make the unselected lands

“available for purchase exclusively to members of the

Bands.” Pet.App.53a. And after the second of those

five-year periods, “any lands that had gone

unselected and unpurchased would remain the

property of the United States which could dispose of

it just as it could ‘other public land.’” Pet.App.53a–

54a. In other words, there was no block of land being

reserved or set aside solely for the Band or even its

members.

Speaking of the Treaty in his annual report,

Commissioner Manypenny explained that the Band’s

members were “to have assigned permanent homes

to be hereafter confirmed to them in small tracts, in

severalty.” Pet.App.54a. In a second report,

negotiator and federal Indian Agent Henry Gilbert

similarly described the arrangement: “the main

feature is a provision securing to each family and to

such single persons as are provided for, a home in

Michigan.” Pet.App.55a.

The U.S. Senate and President ratified the 1855

Treaty with minor modifications. Pet.App.55a.

7

C. Post-Treaty events

There was “significant turnover among the

federal officials charged with implementing the

treaty terms after 1855.” Pet.App.57a. Specifically,

Commissioner Manypenny and Agent Gilbert left

their positions, and Michigan had at least four new

Indian Agents after Gilbert during the relevant

timeframe. Ibid.

Predictably, this turnover “led to confusion.”

Pet.App.57a. In one writing, Agent Leach referred to

the “Little Traverse Bay Reservation.” Ibid. In

another, Commissioner Dole referred to concentration of the Band’s members and other Bands’

members on “two reserves.” Pet.App.58a. These

writings were followed by additional references to a

“reservation,” by Congress and subsequent federal

officials, Pet.App.58a–61a, but not by the Treaty

negotiators.

D. Proceedings below

1. The district court acknowledged that “when

construing an Indian treaty, the Court must ‘look

beyond the written words to the larger context that

frames the Treaty, including ‘the history of the

treaty, the negotiations, and the practical

construction adopted by the parties.’” Pet.App.37a

(quoting Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172, 196 (1999), itself quoting

Choctaw Nation v. United States, 318 U.S. 423, 432

(1943)).

8

“Once versed in the relevant history,” the court

continued, “‘[c]ourts cannot ignore plain language

that, viewed in historical context and given a ‘fair

appraisal,’ runs counter to a tribe’s later claims.”

Pet.App.37a (quoting Or. Dep’t of Fish & Wildlife v.

Klamath Indian Tribe, 473 U.S. 753, 774 (1985)).

Given these standards, the court concluded,

“summary judgment is warranted on the Tribe’s

claims because 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.” Ibid.

After an exhaustive review of the factual record,

Pet.App.38a–61a, the district court turned to this

Court’s holding “that the principal test for assessing

whether land was an Indian reservation was

‘whether the land in question ‘had been [1] validly

set apart [2] for the use of the Indians as such,

[3] under the superintendence of the Government.’”

Pet.App.67a (quoting United States v. John, 437 U.S.

634, 649 (1978), itself quoting United States v.

Pelican, 232 U.S. 442, 449 (1914)). Although the

Band initially advanced that same standard before

the district court, see D.Ct.Dkt.80 at 1305–06, the

Band advanced a different standard at the summary

judgment stage. The district court rejected the

Band’s newly proposed standard: “There is no basis

for concluding that the test for whether a reservation

was created should be different in this case and

distinguished from the chosen test the Supreme

Court has repeatedly cited to evaluate whether a

reservation was created.” Pet.App.69a.

9

Turning to the pre-Treaty negotiations, the

district court agreed with the Band that Agent

Gilbert had initially “favored the creation of

reservations for the Bands.” Pet.App.70a. But the

views of his boss, Commissioner Manypenny,

“diverged significantly from the proposals Gilbert

had continually promoted.” Ibid. He desired “to

substitute as far as practicable, for [the Band’s]

claims in common, titles in fee to individuals for

separate tracts.” Pet.App.71a.

Commissioner Manypenny also specified where

the land would come from: the “existing reservations” from the 1836 Treaty “as opposed to creating

new reservations.” Pet.App.71a. “Manypenny was

suggesting that because the temporary reservations

had never been settled, the government could draw

from those lands to provide permanent homes to the

Individual Indians, who hold fee title to their

separate parcel of land.” Ibid. And “the Indian

motives in the lead-up to the 1855 Treaty are also

readily apparent.” Pet.App.72a. The “unmistakable

intention of the Bands … was securing additional

monetary compensation so that they could continue

to successfully buy up lands.” Ibid.

Applying this Court’s John test, the district court

then considered the “first element for creation of a

reservation”: “a federal set-aside of land for use as an

Indian reservation.” Pet.App.74a (citing John, 437

U.S. at 648–49). Surveying the text, the court parsed

(1) the five-year window for individual families in the

Band to select their own tract to be held in fee with a

right of alienation after ten years, (2) the second fiveyear window for Band members to make additional

land purchases, and (3) the government’s right to sell

to anyone the remaining lands. Pet.App.74a–82a.

10

Given this text, placed “in the proper historical

context,” “the only reasonable conclusion is that the

plain and unambiguous terms do not create a federal

set aside of land for use as a reservation, nor did the

Tribe’s predecessors understand them to do so.

Pet.App.82a. And “[t]hese terms are 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.” Pet.App.83a. The agreement “did not

create a federal set aside of land for Indian

purposes,” ibid. (citing Citizen Band, 498 U.S. at

511), consistent with the U.S. Senate’s rejection of a

much larger permanent reservation just two decades

earlier. Pet.App.99a n.4.

Next, the district court considered whether the

Treaty satisfied John’s requirement for “ongoing

federal superintendence.” Pet.App.83a. That was an

easy “no.” The five-year period for individual tract

selection and purchase—including the right to sell

selected tracts after ten years and to sell purchased

tracts immediately—“provides a vivid demonstration

of the lack of federal superintendence.” Pet.App.85a.

“If the parties understood the land to be set aside as

an Indian reservation, the United States could have

(and likely would have) rescinded [subsequent] sales

by the Indians [to third parties] because the sales

frustrated the primary objective of the Treaty—

establishing ‘permanent homes.’” Ibid.

That conclusion was buttressed by the fact that

all federal payments to the Band were designed to

cease “within ten years.” Pet.App.85a. Based on the

Treaty Journal’s negotiation notes, “the Bands

clearly understood that the 1855 Treaty did not

provide for ongoing federal superintendence.”

11

Pet.App.85a–86a. And the Treaty’s other articles “do

not implicate federal superintendence in any

fashion.” Pet.App.86a. In sum, “the Treaty lacks the

hallmarks of ongoing federal superintendence and

the Tribe’s claim that a reservation exists must fail

for this additional reason.” Ibid. (citing Citizen Band,

498 U.S. at 511).

The district court rejected the Band’s cherrypicking of the factual record as “misleading” and

akin to “hit-and-run argumentation.” Pet.App.91a,

93a; see generally Pet.App.86a–93a. And it also

rejected the Band’s rewriting of the Treaty text.

Contrary to the Band’s arguments, the Treaty was

“not intended to demarcate reservation boundaries.”

Pet.App.96a. And if “the remaining lands (those that

had not been selected or purchased) could be

disposed of by the United States ‘as other pubic

lands[,]’ then the lands described … could not be an

Indian reservation.” Pet.App.97a. “In other words,

the Treaty could not simultaneously set the lands

aside as reservations while also allowing for the

United States to dispose of the land in any manner it

wished,” ibid., a problem that the Band’s petition

does not discuss.

Finally, the court rejected the Band’s heavy

reliance on the post-Treaty historical record, with its

sporadic references to “reserves” and “reservations”

in statements and correspondence by federal officials

not involved with the Treaty. Pet.App.100a. “[W]hile

the land may have colloquially been referred to as

‘reserves’ or ‘reservations,’ the surrounding context

makes clear that those terms were not used in the

sense that the United States had created a

permanent set-aside of land for Indian purposes

through the 1855 Treaty.” Pet.App.101 (emphasis

12

added). “[I]t is only through a vast re-writing of the

Treaty, that the Tribe arrives at its conclusion that

an Indian reservation was created.” Pet.App.103a.

And the court could not “ignore plain language that,

viewed in historical context and given a ‘fair

appraisal,’ runs counter to [the Band’s] later claims.”

Ibid. (quoting Or. Dep’t of Fish & Wildlife v. Klamath

Indian Tribe, 473 U.S. 753, 774 (1985)).

2. Sixth Circuit judges Batchelder, Clay, and

Bush affirmed. Pet.App.3a. They too canvassed the

unique historical record. Pet.App.4a–18a. And, like

the district court, the panel followed this Court’s

command in Citizen Band and John as to the

appropriate test to use when considering if a treaty

establishes a reservation. Pet.App.22a (citing Citizen

Band, 498 U.S. at 511, and John, 437 U.S. at 649).

As to whether the government had set land apart

for Indian purposes, the court recognized that the

1855 Treaty “created an arrangement closer to a land

allotment system than a reservation,” i.e., one where

individual Indians obtained individual parcels

“subject to temporary restrictions on alienation.”

Pet.App.25a (citing Cohen’s Handbook of Federal

Indian Law, §§ 3.04[2]c][iv], 16.03[2][e] (2019)).

Indeed, the panel said, “the language in the Treaty of

1855 is quite different from the Treaty of 1836 that

clearly established a reservation between the Band’s

predecessors and the federal government” by stating

that “the tribes reserve for their own use, to be held

in common,” identified tracts of land. Pet.App.25a.

The court’s reading of the Treaty text was

consistent with the negotiation history, Pet.App.26a–

27a, as well as the fact that “although the federal

government tracked Indian reservations generally, it

did not identify the Article I lands listed in the

13

Treaty of 1855 as a reservation.” Pet.App.28a. That

reading was also consistent with Congress’s Act of

1876 which, in discussing the 1855 Treaty, “omitted

the word ‘reservation’ included in the 1872 Act,

demonstrating that the lands were no longer

withheld from sale and, therefore, were not even

reserved in the common sense of the word.”

Pet.App.29a (citing Act of 1876, 44 Con., Ch. 105, 19

Stat. 55 (May 23, 1876)).

In sum, the Treaty’s text, negotiation history,

and construction by the parties all “demonstrate that

the Treaty did not provide land for Indian

reservation purposes; but rather, it was intended to

allot plots of land so members of the Band could

establish permanent homes.” Pet.App.29a (citing

Minn. v. Mille Lacs Band of Chippewa Indians, 526

U.S. 172, 196 (1999)).

The Sixth Circuit next considered this Court’s

longstanding requirement that “[f]ederal superintendence is also required to establish an Indian

reservation under federal law.” Pet.App.30a (citing

Citizen Band, 498 U.S. at 511). As the panel

explained, this Court has “[r]epeatedly” “included

federal superintendence as a requirement for establishing Indian Country generally.” Pet.App.30a–31a

(citing United States v. McGowan, 302 U.S. 535, 537

(1938), and United States v. Pelican, 232 U.S. 442,

447 (1914)). The panel explained that it would

“follow the Court’s lead.” Pet.App.31a.

The Sixth Circuit noted that the land selected

and purchased in the 1855 Treaty’s phase II—not to

mention the government’s right to sell land outright

in phase III—constituted evidence that no federal

superintendence existed. Pet.App.32a.

14

“Further, during the negotiations, the leaders of

the Band made clear that they did not want land

under federal superintendence or federal control.”

Pet.App.33a (emphasis added). “Indeed, tribal

members made repeated requests during treaty

negotiations to have title to land that would be equal

to that of their white counterparts.” Ibid.

And government officials, too, made clear their

“desire for Band members to be independent from

government support.” Pet.App.33a. As a result, “the

Treaty of 1855 did not create a system of federal

superintendence sufficient to establish an Indian

reservation of the Band.” Pet.App.34a.

Because the Sixth Circuit concluded that the

1855 Treaty did not create a reservation under the

well-established test that this Court has consistently

required and affirmed, it declined to address

additional arguments that could have brought the

court to the same result but for different reasons,

namely judicial estoppel and issue preclusion.

Pet.App.34a–35a n.10.

In other words, even if this Court grants the

Band’s petition, and even if this Court rules in favor

of the Band by overruling the Court’s own precedents

and construing the 1855 Treaty contrary to its plain

terms, the Band is still not entitled to relief.

15

REASONS FOR DENYING THE PETITION

I.

The Sixth Circuit’s analysis of the 1855

Treaty’s text does not conflict with

precedents of this or any other Court.

The Band’s first contention is that the Sixth

Circuit’s opinion conflicts with decisions of this Court

and other circuits. Pet.16–28. But the Band makes

that argument by ignoring the 1855 Treaty’s actual

text and surrounding circumstances. There is no

conflict.

1. The lower courts did not “disregard” the

Treaty’s text or Congress’s identification of the

Band’s lands as a “reservation.” Contra Pet.17. The

Band begins with the proposition that, when a treaty

mentions the words “reserved” and “reservations,” it

is unnecessary to determine whether the treaty set

apart land for Indian purposes. Pet.17–19 (citations

omitted). As a result, the Band’s analysis of the 1855

Treaty’s text is superficial. Pet.19a–20a.

As explained at length above, the 1855 Treaty

was very specific in the way it parceled out land, and

it did so—consistent with the Band’s desires—in a

way that created individual ownership, not a

reservation. During the first five years of

implementation, individual families were allowed to

select an 80-acre parcel of land within the identified

tract. Those families held fee-simple title to their

selected tract with only a 10-year restraint on

alienation. During the second five years, Band

members could purchase additional tracts, and for

those tracts, there was no restraint on alienation at

all. After expiration of the second five-year period,

the federal government could sell all remaining

tracts to whomever it pleased, members of the Band

16

or not. Nothing in this land-distribution process

indicated that the government was fixing borders for

what was to be a permanent reservation for the

Band. Indeed, the Senate had rejected a permanent

reservation only two decades prior. Pet.App.40a.

This Court’s decision in McGirt v. Oklahoma, 140

S. Ct. 2452 (2020), is not to the contrary. There, in a

series of treaties, Congress “establish[ed] boundary

lines which [secured] a country and permanent home

to the whole Creek Nation of Indians.” Id. at 2460

(emphasis added, quoting treaty language). This was

not land that the Creek Nation could alienate;

rather, Congress authorized the President “to assure

the tribe … that the United States will forever

secure and guaranty to [the Tribe] the country so

exchanged with them.” Ibid. (quoting Indian

Removal Act of 1830, § 3, 4 Stat. 412). And while the

government was willing to issue a patent for the

land, such patent would provide a right of reverter to

the United States “if the Indians become extinct, or

abandon the same.” Ibid.

When the Creek Nation accepted the offer, the

government granted “a patent, in fee simple,” not to

individual families, but “to the Creek nation of

Indians,” and that patent came with a caveat that

“the right thus guaranteed by the United States

shall be continued to said tribe of Indians, so long as

they shall exist as a nation.” 140 S. Ct. at 2461

(citing 1833 Treaty, preamble, 7 Stat. 418, and Art.

III, id. at 419). This language was sufficient to create

a reservation, particularly given a later Congressional Act affirming the land to “be forever set apart

as a home for said Creek Nation” as “the reduced

Creek reservation.” 140 S. Ct. at 2461. “Under any

definition, this was a reservation.” Id. at 2462.

17

The situation here is different in every respect.

The 1855 Treaty fixed no borders; quite the opposite,

the government was free to sell tracts that went

unselected and unpurchased in phases I and II. The

Treaty was not intended to “secure a country,” as did

the Creek Nation reservation. The lands purchased

by Band members in phase II could be flipped and

sold immediately, and the land selected in phase I

could be sold ten years after the patents issued, with

no restraints on alienation. The government did

nothing to “secure and guaranty” these lands to the

Band or its members.” And the United States did not

grant a patent to any of the lands to the Band as a

whole, nor did the government have to retain a right

of reverter; it had the right to dispose of any

remaining lands after the Article I process ended.

The Band’s reliance on Minnesota v. Hitchcock,

185 U.S. 373 (1902), is equally inapposite. Pet.18.

There, the government identified a particular tract

and retained title to it subject to the Chippewa

Indians’ right of occupancy. The “effect was to leave

the Indians in a distinct tract reserved for their

occupation, and in the same act this tract was

spoken of as a reservation.” Id. at 389. It was enough

that the government had created “a certain defined

tract appropriated to certain purposes.” Id. at 390.

Not so here. The 1855 Treaty created no omnibus

tract with lasting borders dedicated to the Band. If,

in 1866, the government and the Band’s individual

members chose to sell all their tracts to third parties,

there would be no land left for any Band member on

which to remain. The property was not set aside for

permanent Band use but instead was allocated to

individual Band members who had the right to use

and dispose of their tracts as they wished.

18

The other, lower-court decisions on which the

Band relies are not in conflict, either. Pet.18–19.

Chemehuevi Indian Tribe v. McMahon, 934 F.3d

1076, 1080 (9th Cir. 2019), involved an executive

order directing that a specified tract of federal land

“be withdrawn from all form of settlement” to create

the Chemehuevi Reservation.

United States v. McIntire, 101 F.2d 650, 651 (9th

Cir. 1939), arose out of a treaty in which several

tribes ceded a large body of land to the United States

but reserved from the lands so ceded a defined tract

“for the use and occupation of said confederated

tribes, and as a general Indian reservation upon

which may be placed other friendly tribes.”

Klamath & Moadoc Tribes & Hahooskin Band of

Snake Indians v. United States, 85 Ct. Cl. 451, 454,

456 (1937), involved another tribal cession of land

that again specifically described a large tract to be

“set apart as a residence for said Indians [and] held

and regarded as an Indian reservation.”

Devils Lake Sioux Tribe v. North Dakota, 917

F.2d 1049, 1051 (8th Cir. 1990), did not involve the

question of whether a reservation had been

established but merely whether the bed of Devils

Lake was encompassed in that reservation.

And Pittsburgh & Midway Coal Mining Co. v.

Yazzie, 909 F.2d 1387, 1405 (10th Cir. 1990),

involved the issue of whether restoration of certain

reserved lands to the public domain cancelled what

had been undisputed reservation properties.

19

Rather than examine how the 1855 Treaty

actually treated the land at issue, the Band deems it

enough that the words “reserved” and “reservations”

appear once each in the Treaty. Pet.19 (citing

Pet.App.116a, 120a). But the district court debunked

that shallow analysis. The phrase “tract reserved,”

“[w]hen placed in the proper context,” “clearly and

unambiguously refers to the numbered paragraphs

that immediately precede it.” Pet.App.94a. “It simply

means that eligible Indians were entitled to make

their selection of land from within the larger tract

designated for this Band.” Ibid.

For example, “the head of a family within the

Beaver Island band was thus limited to selecting an

80-acre parcel from within the land description

referenced in the Paragraph Third, rather than any

of the other seven parcels withheld from sale for the

other Bands to make their selections.” Ibid. In no

way is the “use of ‘tract reserved’” “capable of a

broader meaning when placed in this context.” Ibid.

The same is true when the Treaty references

“tracts of land within the aforesaid reservations.”

The “use of the word ‘reservations’—or a similar

term—was necessary here to avoid creating an

ambiguity.” Pet.App.95a. The phrase merely “refer[s]

back to the land descriptions contained within the

number paragraphs that would be withdrawn from

[general] sale.” Ibid. What’s more, “[t]his

interpretation is confirmed by the language in the

following sentence as the drafters reverted to

referring to the withdrawn parcels as ‘aforesaid

tracts.’” Ibid.

20

The Band also criticizes the Sixth Circuit for

purportedly violating the rule “‘that Indian treaties

are to be interpreted liberally in favor of the Indians,’

with ambiguities ‘resolved in their favor.’” Pet.22

(quoting Mille Lacs, 526 U.S. at 200). But that

criticism is impossible to reconcile with the fact that

the Sixth Circuit began its analysis by citing Mille

Lacs for that very proposition. Pet.App.21a. The

problem was that even under a liberal

interpretation, the 1855 Treaty’s text did not create a

reservation of land but land freely alienable by Band

members and the federal government itself, with no

limitations.

2. The Band says that the Sixth Circuit compounded its error by “holding that allotment treaties

cannot create reservations.” Pet.23. Not so.

The Sixth Circuit appreciated that the Band was

arguing that the 1855 Treaty had to have created

Indian reservations if it provided Band members the

chance to own lands in severalty. But what the

Sixth Circuit understood—and the Band ignores—is

that the 1855 Treaty never created reservations to

divide up, i.e., allot, in the first place. The land

selections were simply land grants, not the division

of a reservation as a common land holding. That is

why the Sixth Circuit viewed the land selections

under the 1855 Treaty like public domain allotments

under 25 U.S.C. § 336, where the lands given to

individuals did not come from Indian reservations.

Indeed, although the Band neglects to mention

it, the Sixth Circuit “recognize[d], as McGirt did, that

allotments are not ‘inherently incompatible with

reservation status.’” Pet.App.29a n.8 (emphasis

added, quoting McGirt, 140 S. Ct. at 2475). “But a

lack of inherent incompatibility with reservation

21

status does not mean that an Indian reservation is

established wherever allotments are provided for.”

Pet.App.29a–30a n.8 (citing Pelican, 232 U.S. 442,

449 (1914), and Cohen’s Handbook of Federal Indian

law, § 3.04[2][c][iv] (2012)). Contrary to the Band’s

characterization of what the panel did, the Sixth

Circuit reached its conclusion “based on the Treaty

negotiations, and the Treaty’s text and construction,”

not a myopic focus on allotments. Ibid.

The cases on which the Band relies are again not

to the contrary. Indeed, the Band’s characterization

of its favored cases cannot be reconciled with what

those opinions actually say.

Take McGirt. The Band quotes from the opinion

using ellipses for the notion that allotment is

“completely consistent with … reservation status.”

Pet.24 (quoting McGirt, 140 S. Ct. at 2464). To begin,

the question in McGirt was not whether a treaty

allotment scheme could create a reservation; the

issue is whether “allotments automatically ended

reservations,” a question to which this Court

answered no. 140 S. Ct. at 2464 (emphasis added).

The full quote from McGirt is that allotment “is

completely consistent with continued reservation

status.” And “[i]t isn’t hard to see why. The federal

government issued its own land patents to many

homesteaders throughout the West. … But no one

thinks any of this diminished the United States’

claim to sovereignty over any land. To accomplish

that would require an act of cession.” Id. Accordingly,

“there is no reason why Congress cannot reserve

land for tribes in much the same way, allowing them

to continue to exercise governmental functions over

land even if they no longer own it communally.” Id.

22

Here, the 1855 Treaty did not contemplate that

the Band would govern the land that the Treaty

addressed. The Band’s members desired to be

acknowledged as Michigan “citizens.” Pet.App.8a.

(Articles 4 and 7 of Michigan’s 1850 Constitution

gave certain Indians the right to vote and the right

to be counted for the purpose of legislative

apportionment.) And after the Treaty was executed,

a leader and historian of the co-signing Ottawa

Indians of Michigan wrote to the Office of Indian

Affairs requesting additional educational assistance,

explaining that the tribe was now “under the laws of

the State of Michigan and the United States,” with

“equal rights and privileges with American citizens.”

Pet.App.27a.

And again, the legal problem inherent in the

Band’s claim is how the land selections and

purchases worked in the unique factual context of

the 1855 Treaty. There was no omnibus land set

aside for a reservation. There was no restraint on

individual Band members selling their property to

non-Band members. There was no need for a right of

reverter so the United States could ensure control of

the property if Band members ceased to live on the

land, as in the Creek Nation treaty. And there was

no discussion of the Band exercising governmental

sovereignty over a designated tract of land.

To the contrary, every Band member that

selected or purchased land was an individual

landowner, and the government had the right to sell

unselected, unsold tracts to third parties, creating a

“Swiss Cheese” tract with some parcels owned by

Band members and many more parcels owned by

non-Indians.

23

To the extent the Band claims conflict with

decisions of other circuits, it is wrong. For instance,

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

did not decide what constituted a reservation but

rather held that allotments did not disestablish or

diminish large tracts previously set aside “for Indian

reservations.” All the Murphy court held was that

“[a]llotment on its own does not disestablish or

diminish a reservation.” Id. That is because, again,

allotment can be “completely consistent with

continued reservation status.” Id. (emphasis added,

quoting Mattz v. Arnett, 412 U.S. 481, 497 (1973)).

Likewise, Bugenig v. Hoopa Valley Tribe, 266

F.3d 1201 (9th Cir. 2001), involved the issue of

whether the federal government vested itself of

jurisdiction

over

an

acknowledged

Indian

reservation. The Ninth Circuit merely held that

“federal jurisdiction within a reservation is not

dependent solely on the ownership status of the land

in question.” Id. at 1220. Where a reservation

remained “97.2 percent intact,” with “[l]ess than one

percent of the land [ ] owned in fee simple by nonIndians,” the court held that Congress did not intend

to divest itself of jurisdiction. Id. There is no conflict

with the Sixth Circuit’s holding here that a Treaty

did not create a reservation through its mechanisms

of individual property ownership and no collective

ownership, government, or sovereignty.

The Band points to other sundry circuit

decisions, asserting conflicts with the Sixth Circuit’s

conclusion that in the unique circumstances here,

granting patents for land parcels with only short

limitations on alienation was inconsistent with the

establishment of a reservation. But the cherry-picked

quotes from these decisions create no conflict.

24

For example, Thurston County v. Andrus, 586

F.2d 1212 (9th Cir. 1978), involved a treaty whereby

“the Omaha and Winnebago tribes ceded or sold most

of their land by treaty to the United States with the

exception of reservation lands on which the Indians

could live under the protection of the United States.”

Id. (emphasis added).

The treaty at issue in Wisconsin v. StockbridgeMunsee Community, 554 F.3d 657, 660 (7th Cir.

2009), arose out of an agreement to cede and

relinquish certain tribal lands “in exchange for a new

reservation in Wisconsin.” And while it is true that

new reservation involved allotments with alienation

rights after ten years, individual members could not

sell without “getting permission from both the Tribe

and the United States government.” Id. There is no

such permission requirement here.

The Band’s Treaty descriptions and summaries

never once mention the second or third phases of the

land-selection process, nor do they cite the parties’

understanding that they were creating a path to

Michigan citizenship. As the district court put it,

“when the United States allows for individual Indians to select land, which they would hold in fee, it

does not meet the requirement of a federal set aside

for Indian purposes or federal superintendence.”

Pet.App.103a. Likewise, “when the United States

maintains its ability to dispose of the alleged Indian

reservation after a finite time ‘as in the case of other

public lands,’ then no Indian reservation is established.” Ibid. “[I]t is only through a vast re-writing of

the Treaty, that the Tribe arrives at its conclusion

that an Indian reservation was created.” Ibid.

It is the Band’s position which creates conflicts

with other precedents. The petition should be denied.

25

II. The Sixth Circuit’s conclusion, in dicta,

that the Band’s reservation claim fails for a

lack of federal superintendence, does not

conflict with precedents of this or any other

Court.

As an independent ground for affirmance, the

Sixth Circuit applied this Court’s precedents and

concluded that the lack of any ongoing federal

superintendence likewise counseled against the

finding of a reservation. The Band attacks this dicta

and claims yet more conflicts of authority. But those

conflicts do not exist.

Start with this Court’s unambiguous holdings in

Citizen Band, John, and Pelican, each of which

states the test for assessing whether land is an

Indian reservation as: “whether the land in question

‘[1] had been validly set apart [2]for the use of the

Indians as such, [3] under the superintendence of the

Government.’” Citizen Band, 498 U.S. at 511; John,

437 U.S. at 649; Pelican, 232 U.S. at 449. It is telling

that after originally citing Citizen Band to the

district court as supplying the proper test, the Band’s

petition never once cites Citizen Band or Pelican and

cites John only for unrelated propositions.

The lower courts’ reliance on this Court’s trilogy

of reservation cases did not conflict with McGirt.

Contra Pet.28. The issue of federal superintendence

wasn’t even raised in that case. And if it had been,

the result would not have changed because the

United States promised to “secure and guaranty” the

land it was creating as a reservation, agreed to the

possible military enforcement of tribal ownership,

and retained a power of reverter to ensure the

government could keep that promise. 140 S. Ct. at

2460–61.

26

Indeed, the Band’s citation to United States v.

Thomas, 151 U.S. 577 (1894), and Leavenworth,

Lawrence, & Galveston R.R. Co. v. United States, 92

U.S. 733 (1875), see Pet.29, demonstrates that

federal superintendence over land was a requirement

for Indian reservations even before the Court decided

Citizen Band, John, and Pelican. As Thomas noted,

Paragraph 3d of the Treaty with the Chippewa, Sept.

30, 1854, 10 Stat. 1109, authorized the President to

establish the boundaries of the reservation at Lac

Court Oreilles. See 151 U.S. at 583. The treaty itself

provided active federal superintendence, including

the President’s right to allot the reservation lands

and his right to continue a prohibition against liquor

being “made, sold, or used” on reservation lands. See

10 Stat. 1109. Thus, Thomas’s observation that the

United States has “full authority” to pass laws

concerning Indians on an Indian reservation is fully

grounded in the federal government having already

established its active superintendence over the

reservation land. Thomas, 151 U.S. at 585. That’s

the opposite of how the government treated the lands

it agreed to patent to Band members in the 1855

Treaty.

As for Leavenworth, it too acknowledged that the

federal government held the fee to unceded Indian

lands, which gave the United States substantial

powers over the lands to ensure the Indian right of

occupancy. Leavenworth, 92 U.S. at 747. Vesting the

fee to the unceded lands in the federal government

“deprived” the Indians “of the power of alienation”

and granted the United States the “exclusive

privilege of buying” the lands, both of which worked

as a hedge against intrusion by settlers on Indian

lands. Id.

27

That power to restrict the sale of land and to

ensure Indian occupation to the exclusion of others

are classic examples of federal superintendence. See

Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 532–33 (1998). This type of

superintendence is also compatible with StockbridgeMunsee, discussed above, where individual members

could not sell without “getting permission from both

the Tribe and the United States government.” 554

F.3d at 660. It is incompatible with the 1855 Treaty,

which allowed the Band’s members to select parcels

and sell them without restriction or permission ten

years after the issuing of land patents, and which

allowed the government to sell remaining parcels to

third parties of its choice.

There is no conflict between this Court’s precedents and the en banc Tenth Circuit’s decision in

Hydro Resources, Inc. v. United States EPA, 608 F.3d

1131 (10th Cir. 2010), either. The en banc court

began its analysis by referencing this Court’s

decision in Venetie. According to the en banc court,

Venetie “explained that ‘dependent Indian communities’ under [18 U.S.C.] 1151(b) embrace ‘a limited

category of Indian lands that are neither

reservations nor allotments’ encompassed by” 18

U.S.C. 1151(a) or (c). 608 F.3d at 1148 (quoting

Venetie, 118 S. Ct. at 948). The en banc court

continued: “The Court then identified two necessary

‘requirements’ for lands falling into § 1151(b)’s

‘dependent Indian communities’ category,” “much

like reservations or allotments, ‘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.’” Id. (quoting Venetie,

118 S. Ct. at 948) (emphasis added).

28

In other words, the en banc Tenth Circuit

followed Venetie—and Citizen Band, John, and

Pelican—in recognizing unequivocally that a reservation requires ongoing federal superintendence.

Nowhere does the en banc court describe the federalsuperintendence requirement as one that applies

only to the “dependent Indian community” analysis

and not to a “reservation” analysis.

In further support, the Band points to the Second

Circuit’s decision in Oneida Indian Nation of New

York v. City of Sherrill, 337 F.3d 139 (2d Cir. 2003).

Pet.32. But that only compounds the Band’s Hydro

Resources problem. City of Sherrill likewise turned to

this Court’s decision in Venetie in establishing the

analytical framework for deciding whether the

Oneida reservation could be considered Indian

Country under 18 U.S.C. 1151. The court described

Venetie as concluding that the land at issue in that

case “was not Indian Country because it neither had

been ‘set aside by the Federal Government for the

use of the Indians as Indian land’ nor was ‘under

federal superintendence’” requirements “that applied

equally

to

reservations,

dependencies,

and

allotments.” 337 U.S. at 155 (quoting Venetie, 522

U.S. at 527, 532–34).

The Second Circuit then rejected the City of

Sherrill’s argument that the land the City sought to

tax was not Indian country. Citing John, the court

held that “[w]hile questions may arise as to whether

nonreservation property owned by Indians is in

Indian country, there are no such questions with

regard to reservation land, which by its nature was

set aside by Congress for Indian use under federal

supervision.” 337 F.3d at 155 (citing John, 437 U.S.

at 634) (emphasis added).

29

Far from a conflict, then, this Court’s precedents

and those of the Second, Sixth, and Tenth Circuits

are in perfect harmony; each includes ongoing

federal supervision or superintendence as a

foundational element of a reservation. So, in the

Sixth Circuit, as well as the Second and the Tenth,

the Townships would have prevailed on the Band’s

claim that the 1855 Treaty established a reservation

in Michigan.

III. The question presented does not warrant

review, and there is no need to call for the

views of the Solicitor General.

“[W]hen the [1855] Treaty is placed in the relevant historical context, it cannot plausibly be read to

have created an Indian reservation, and the Tribe’s

predecessors did not believe that it did so.”

Pet.App.104a. So, the Band’s petition asks this Court

to engage in mere error correction when the Treaty’s

plain text and accompanying historical evidence

show that no such error was made.

As demonstrated above, there are also no

conflicts to resolve. Both the Sixth Circuit and the

district court reached the same decision by

fastidiously examining this Court’s precedents and

applying them to the unique treaty and historical

record here. And the lower court’s analyses do not

conflict with a single circuit-court decision in any

applicable case. It is only by mixing and matching

cases in noncomparable contexts and carefully

snipping quotes that the petition can create even an

appearance of a conflict. Careful examination of

those cases shows no conflicting holdings, no

unsettled law, and no error of law in the decisions

below whatsoever.

30

For that reason, the Sixth Circuit’s decision will

not create “broad legal confusion that will plague

reservation-status disputes nationwide.” Pet.34. The

decision is a carefully crafted opinion that slavishly

adheres to this Court’s precedents. The overarching

legal issue is not whether a stray use of the word

“reservation” in a treaty or historical discussion

creates a reservation. Contra Pet.34. The issue is

whether a reservation was created here under this

particular treaty and these particular facts. It was

not.

What’s more, there is no need for this Court to

call for the views of the Solicitor General. The 1855

Treaty’s text and context are clear, and the Solicitor

General’s views will do nothing to add to or subtract

from that clarity.

The Band tries to justify such a request by

invoking Congressional enactments that referred to

the 1855 Treaty as creating a “reservation,” such as

the Acts of 1872 and 1875. Pet.35, 20. But as the

Sixth Circuit explained, “when Congress further

discussed the Treaty of 1855 in the Act of 1876, it

omitted the word ‘reservation’ included in the 1872

Act, demonstrating that the lands were no longer

withheld from sale and, therefore, were not even

reserved in the common sense of the word.”

Pet.App.28a–29a (emphasis added). And when the

Band lobbied Congress to reaffirm the Band’s federal

trust relationship, “it did not ask Congress to

reaffirm an 1855 Treaty reservation.” Ibid. If the

Band believed that the 1855 Treaty created a

reservation, that would have been an ideal time to

raise the subject.

***

31

This litigation concerns a significant amount of

land and casts a long jurisdictional shadow over,

among other areas, the Township of Bear Creek, the

Township of Bliss, the Township of Center, the

Township of Cross Village, the Township of

Friendship, the Township of Little Traverse, the

Township of Pleasantview, the Township of

Readmond, the Township of Resort, the Township of

West Traverse, and all these Townships’ residents.

Upsetting the settled expectations of the Treaty’s

negotiators would have substantial disruptive

consequences on arrangements that have been in

place for over a century, including criminal and

zoning laws, taxation, and even adoption, custody,

and child-placement to name just a few, creating

jurisdictional chaos for the foreseeable future.

The Sixth Circuit made no new law. It applied

this Court’s well-established framework from Citizen

Band, John, and Pelican for determining when a

treaty establishes a reservation. And when one

compares the language of the 1855 Treaty and

accompanying negotiating history to this Court’s and

other Circuits’ decisions, the Sixth Circuit’s

conclusion falls neatly in line with every precedent.

For its part, the Band seems to suggest that this

Court should hear every case involving the

establishment of a reservation, or at a minimum,

should ask for the views of the Solicitor General in

every case involving that issue. Pet.33–36. But this

Court has never said that, and reservation cases as a

class are not within the Court’s original jurisdiction.

The Circuits must decide many of these cases—just

as they decide many other important cases—and

they have mechanisms to ensure that the most

important are given requisite attention.

32

The Band’s arguments here could not persuade

even a single member of the Sixth Circuit to request

that a poll be called on rehearing by the full court.

Pet.App.112a. Where this Court has established a

clear framework for resolving these types of cases,

and the lower courts have properly applied that

framework, there is no good reason for this Court to

exercise its discretionary authority and to grant

certiorari.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

JANUARY 2022

MICHAEL E. CAVANAUGH

Counsel of Record

THADDEUS E. MORGAN

FRASER TREBILCOCK

DAVIS & DUNLAP, P.C.

124 W. Allegan

Suite 1000

Lansing, MI 48933

(517) 482-5800

mcavanaugh@fraserlawfirm.com

Counsel for 10 Intervenor-Appellee Townships