Opposition Brief — M. A. v. Colorado (No. 06-428)

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QUESTIONS PRESENTED

1. Did both courts below err in concluding that the 1854

Treaty with the Chippewa at La Pointe, in light of its unique

language and history, precludes taxation of Indian lands

allotted and made alienable under the treaty, and that

Congress has never abrogated that treaty right?

2. Did both courts err in concluding that, as both parties

had conceded, there were no genuine issues of material fact

precluding resolution of this case on summary judgment?

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TABLE OF CONTENTS

Page

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IS he oa dd peisuveee eserves ll

NE re ili

ee eee i pa wen sé eeu ees |

DPMEEy FTOVIBIONS IBVOIVER .. ccc ccc ecees l

eS SUL e 6 Ua taees e's e295 l

Reasons for Denying the Petition ............... 9

EE Ay ae ce: ae

Appendix — Treaty with the Chippewa, 1854 ..... la

iii

TABLE OF CITED AUTHORITIES

Page

Cases:

Air France v. Saks, 470 U.S. 392 (1985) ......... 9

Cass County, Minnesota v. Leech Lake Band of

Chippewa Indians, 524 U.S. 103 (1998) ... 4,6, 10,11, 12

Choctaw Nation of Indians v. United States, 318 U.S.

GE Geckos be win oben seein G

County of Yakima v. Confederated Tribes and Bands

of the Yakima Indian Nation, 502 U.S. 251 (1992)

RE Pie He Ee ey EE ee 6, 10, 11

Goudy v. Meath, 203 U.S. 146 (1906) .......... 11, 12

The Kansas Indians, 72 U.S. 737 (1866) ......... 5

Keweenaw Bay Indian Community v. Michigan, 784

F. Supp. 418 (W.D. Mich. 1991) ........ 2,3, 4, 5, 6

Lummi Indian Tribe v. Whatcom County, Washington,

5 F.3d 1355 (9th Cir. 1993), cert. denied, 512 U.S.

SRE Stake ¢heen ces was ee unes 7, 8,9, 12, 13

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

COMET 84s hae aad 3 44640 0e us Pe re ery 10

Minnesota v. Mille Lacs Band of Chippewa Indians,

7 tk Bee li, eee ‘fsuedbeses 7,9, 10

Cited Authorities

Page

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759

PU ee ee cette uv od out asey acs eae i0

The New York Indians, 72 U.S. 761 (1866) ....... 5

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ... 7,10

Statutes:

REE 0S ss nl aks oe

SIS ee ee oa eer

Burke Act, 34 Stat. 182 (1906) ...............-. 7

Act of Mar. 3, 1893, 27 Stat. 612 (1893) .......... 1

Nelson Act, 25 Stat. 642 (1889) ................ 11

General Allotment Act, 24 Stat. 388 (1887) .... 8, 11, 14

Treaties: ~

Treaty of Point Elliott (Treaty with the Dwamish,

Suquamish ef al.), Jan. 22, 1855, 12 Stat.927 ... 12

Treaty with the Chippewa at La Pointe, Sept. 30,

1854, 10 Stat. 1109 (the “1854 Treaty”) ...... passim

ee EO he 0 os bas cored <u paces eae 3

Cited Authorities

Page

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Pee WI NE 8 6 cs ok whos oe ee eG ee 3,9

Pee RINE, OO ES ss bade ee scan eee eapeteere passim

Treaty with the Omaha, Mar. 16, 1854, 10 Stat.

a a ne CNP R ap iorace ns Wo wap eeet? Ye 12

Treaty with the Chippewa at La Pointe, Oct. 4, 1842,

7 Stat. 591 (the “1842 Treaty”) 2... cccncceces 2

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Other Authorities:

<http://www.indianlandtenure.org/ILTFallotment/

specinfo/specinfo.htm> (detailed charts available

by clicking map) (visited Oct. 25, 2006) ....... 14

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INTRODUCTION

Petitioners argue that the decision below misapplies this

Court’s precedent, conflicts with a decision of the Ninth

Circuit, and raises questions of general importance. On the

contrary, both lower courts agreed on the interpretation of

language and history unique to a single Indian treaty. Their

decisions apply well-established legal principles, create no

conflict with other courts, and involve the property tax status

of a small part of a single reservation. There is no reason for

further review.

TREATY PROVISIONS INVOLVED

The text of the Treaty with the Chippewa at La Pointe,

Sept. 30, 1854, 10 Stat. 1109 (the “1854 Treaty”), is set forth

in the Appendix to this brief.

STATEMENT

The court of appeals’ holding that the State of Michigan

cannot impose its ad valorem property tax on land owned

in fee by the Keweenaw Bay Indian Community

(the “Community”) and its members within the L’Anse

Reservation rests upon the court’s interpretation of a unique

1854 treaty as it applies to land in one reservation. The

Community, a federally recognized Indian tribe, is the

successor in interest to the L’Anse band of Lake Superior

Chippewa, for which the L’ Anse Reservation was established.

The fee land at issue encompasses approximately 6% of the

59,840-acre Reservation. '

1. The fee land consists of approximately 2,947 acres owned by

the Community and approximately 688 acres owned by Community

members. Affidavit of Susan LaFernier 4 6, R. 26, 6th Cir. App. 72, 74.

1. Pursuant to the Treaty with the Chippewa at La Pointe,

Oct. 4, 1842, 7 Stat. 591 (the “1842 Treaty”), the Chippewa

of Lake Superior and the Mississippi ceded the western half

of Michigan’s Upper Peninsula as well as portions of northern

Wisconsin to the United States. Keweenaw Bay Indian

Community v. Michigan, 784 F. Supp. 418, 421 (W.D. Mich.

1991). Most of the Chippewa continued to live and reside

within the ceded area, however. Article II of the 1842 Treaty

guaranteed to the Chippewa the right to hunt within the ceded

area with the usual privileges of occupancy unless and until

required to remove by the President, as well as the protection

of the federal Indian trade and intercourse laws. /d. By the

late 1840s the United States had surveyed and begun to sell

land in the Keweenaw Bay area, causing fear among the

Chippewa that they would be forced to remove from their

residences and villages in the ceded area. Jd. The Chippewa

leaders sent numerous petitions and letters to the President

and Indian agents asking for the creation of permanent

reservations. /d. The local Indian agent remarked that removal

was ““‘the great terror of [the Indians’] lives and I hazard

nothing in saying they will sooner submit to extermination

than comply with it.’” Jd. “A consistent Indian theme

throughout the period ... prior to the 1854 Treaty was an

ardent desire for permanent homes for the Indians in their

present locations.” /d. at 422.

As a result of the petitions and letters from the Chippewa,

the United States agreed to negotiate another treaty with them

in 1854. The 1854 Treaty created permanent homes for the

Chippewa on reservations that encompassed their actual

dwelling places. Keweenaw, 784 F. Supp. at 424. For the

L’ Anse and Vieux De Sert bands, the United States “agree[d]

to set apart and withhold from sale” the lands that became

known as the L’Anse Reservation. 1854 Treaty, art. 2. In

exchange for these reservations, the Chippewa ceded to the

United States over seven million mineral-rich acres located

in the Arrowhead region of present-day Minnesota, portions

of which are known today as the Iron Range. 1854 Treaty,

art. 1; see also Pet. App. 9a, 20a, 48a.

The court of appeals’ decision rests primarily on Article

11 of the 1854 Treaty, which provides in pertinent part that

“the Indians shall not be required to remove from the homes

hereby set apart for them.” 1854 Treaty, art. 11. Also relevant

is Article 3, which provides the President with authority to

make allotments of land to each head of a family or single

person over twenty-one years of age and “at his discretion, . . .

issue patents therefore to such occupants, with such

restrictions of the power of alienation as he may see fit to

impose.” 1854 Treaty, art. 3. The record demonstrates — and

Petitioners have conceded — that all of the allotments within

the L’Anse Reservation were made, and that such allotted

lands were made alienable, by the President or his delegates

pursuant to the 1854 Treaty. Pet. 5; Pet. App. 32a-33a.

In 1991, in other litigation between the Community and

the State of Michigan, the United States District Court for

the Western District of Michigan held that all of the fee land

within the exterior boundaries of the L’Anse Reservation

formed part of the Community’s Reservation and constituted

“Indian country” within the meaning of 18 U.S.C. § 1151.

Keweenaw, 784 F. Supp. 418. As the court noted, “Since

earliest times, [the vicinity of L’Anse, Baraga, and the

Keweenaw Bay] has been an uninterrupted residential

community of Chippewa Indians whose identity has been

well-known and frequently asserted.” /d. at 428. The court

held it would “def[y] common sense to conclude that Indians

would seek a treaty to create a permanent home for

themselves and exclude the Indian villages and the property

upon which many of their own residences were located.”

Id. at 424. The record in Keweenaw “was fully developed

during eight days of trial,” id. at 420, and the State did not

pursue an appeal.

2. In 1994, pursuant to the terms of a stipulated consent

judgment, the Community and the affected local governments

resolved a dispute over the taxable status of fee land

owned by the Community and its members within the

L’Anse Reservation. The consent judgment acknowledged

that all of the fee land owned by the Community and its

members within the L’ Anse Reservation was nontaxable, and

the Community agreed to make (and made) payments in lieu

of property taxes to the affected local governments for

governmental services provided to the Community and its

members. Pet. App. 12a.

In 1999, however, Petitioners or their predecessors,

acting in their capacity as officials of the Michigan State Tax

Commission, directed all local property tax officials

throughout Michigan to place all real property owned by

Indian tribes and their members on the tax assessment rolls,

based on their reading of this Court’s decision in Cass County,

Minnesota v. Leech Lake Band of Chippewa Indians, 524

U.S. 103 (1998). Pet. App. 12a. The Community subsequently

brought this action against Petitioners and the assessing units

of local government to prevent state taxation of the fee land

owned by the Community and its members within the L’ Anse

Reservation. The Community based its complaint on several

grounds, including that state taxation of the fee land was

impermissible under the particular terms of the 1854 Treaty,

and that in any event the taxation had not been authorized by

Congress, either directly or by a statute making the land

alienable, as required under Cass County.

After Petitioners had conducted written discovery and

the parties had exchanged expert reports, Petitioners filed a

motion for summary judgment contending that there were

no genuine issues of material fact having a bearing on the

taxability of the land at issue and that the Community’s

complaint should be dismissed. The Community filed a cross-

motion for summary judgment. The district court held that

the 1854 Treaty precluded state taxation. Considering the

text of the Treaty, in particular the Article 11 provision that

“the Indians shall not be required to remove from the homes

hereby set apart for them,” and its purpose to create

permanent reservations for the Chippewa at the location of

their existing homes, the court concluded that the State could

not require the Indians to be removed from their homes for

non-payment of property taxes, and hence (under this Court’s

precedents) the taxes themselves could not be imposed.

Pet. App. 42a-43a, 45a-48a; see, e.g., The Kansas Indians,

72 U.S. 737, 760 (1866) (“taxes must first be levied, and

they cannot be realized without the power of sale and

forfeiture, in case of non-payment); The New York Indians,

72 U.S. 761 (1866) (striking down New York statute that

imposed property taxes on an Indian reservation but

purported to preserve the Indians’ continued right to occupy

such lands).

The court also examined the thorough treatment of the

historical record in the previous Keweenaw decision, as-well

as in the expert reports and briefs, and determined that there

was no evidence that the signatories to the Treaty -- the Indian

Tribes and the United States — intended by the allotment

provision in Article 3 to negate the provisions of Article 11

and subject the allotted lands to state or local taxation upon

the removal of alienation restrictions. Pet. App. 37a-40a, 45a-

48a. Finally, the court applied the longstanding requirement

that Indian treaties must be interpreted in the sense

in which they would naturally be understood by the

Indians, with ambiguities resolved in the Indians’ favor. Pet.

App. 47a-48a. Echoing the previous Keweenaw decision, the

court concluded that “[i]t defies logic to believe that the

Indians would have signed a treaty ceding over seven million

acres to the United States, knowing that they could lose the

land they kept as a reservation the following year, due to

non-payment of taxes.” Pet. App. 48a.

The court also held that state taxation was precluded

under the federal common law rule that “Indian reservation

land is generally exempt from state and local taxation absent

cession of jurisdiction or other federal statute[s] permitting

it.” Pet. App. 48a (citing Cass County and County of Yakima

v. Confederated Tribes and Bands of the Yakima Indian

Nation, 502 U.S. 251, 254 (1992)). The court noted that in

Cass County, the Supreme Court held that “‘when Congress

makes reservation lands freely alienable, it is unmistakably

clear that Congress intends that land to be taxable by state

and local governments, unless a contrary intent is clearly

manifested.’” Pet. App. 49a (quoting Cass County, 524 U.S.

at 113). The district court then held that, unlike in Cass

County, the land here was made alienable not by an Act of

Congress but pursuant to the terms of the 1854 Treaty, which

preserved tax immunity through the Article 11 non-removal

provision. The court concluded that because Congress had

not acted to override the Treaty and make the land taxable,

either expressly or by making it freely alienable through a

later congressional act, there was no congressional

authorization to supersede otherwise applicable general

principles and permit state taxation of Indian-owned

reservation lands. Pet. App. 50a-53a.

3. The United States Court of Appeals for the Sixth

Circuit affirmed. Pet. App. la-35a. The court recognized that

this Court’s decisions interpreting Indian treaties from

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), to

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.

172 (1999), require that treaty language must be evaluated

in light of the history and context of the particular treaty at

issue. Pet. App. 16a-17a. It concluded that the particular

guarantee against removal in Article 11 of the 1854 Treaty

precluded any involuntary alienation of Indian-owned

property, including tax sales. Pet. App. 17a, 20a, 22a. Like

the district court, the court of appeals held that: “The

Chippewa Indians envisioned land set aside for them

permanently; it simply does not make sense that the

Chippewa Indians would disapprove of the mass removal of

their society but would sanction a gradual removal of

individuals through involuntary alienation.” Pet. App. 22a.

The court of appeals also noted that any ambiguity in

an Indian treaty must be resolved in favor of the Indians.

Pet. App. 16a-17a, 22a.

The court of appeals then addressed whether Congress

had ever clearly expressed an intent to abrogate the

Community’s rights under Article 11 of the Treaty or had

otherwise clearly authorized state taxation of the fee land at

issue. Pet. App. 23a-28a. The court rejected Petitioners’

contention that the alienation provisions of the 1854 Treaty

itself demonstrated congressional intent to permit taxation

sufficient to abrogate the negotiated, immunity-preserving

terms of the Treaty. It explained that a treaty, while it has the

force of law, is quite different from an Act of Congress.

Pet. App. 28a-29a. The court also considered and rejected,

Pet. App. 29a-30a, Petitioners’ reliance on cases from other

circuits, including the Ninth Circuit’s decision in Lummi

Indian Tribe v. Whatcom County, Washington, 5 F.3d 1355

(9th Cir. 1993), cert. denied, 512 U.S. 1228 (1994), which

had permitted state taxation of land that was ultimately made

alienable in accordance with the provisions of a different

treaty and later congressional enactments. Moreover, the

court explained that there was no basis for concluding that

any land within the L’Anse Reservation had been allotted or

made alienable under the General Allotment Act, 24 Stat.

388 (1887), or any other federal statute that might have

evinced a clear congressional intent to override the Treaty

and permit taxation. Accordingly, the court held that the

Indian-owned lands within the Reservation were immune

from state property tax, under both the 1854 Treaty and

federal common law. Pet. App. 31a-33a.

In a brief dissent, Judge Guy noted that “[t]he court has

accurately set forth the facts .. . [and t]he result reached is

certainly plausible.” Pet. App. 34a. He disagreed, however,

with the majority’s interpretation of the 1854 Treaty to

include preservation of the tax immunity of allotted land that

became freely alienable. Pet. App. 35a. He would instead

have construed the treaty to have “nothing to do with what

might happen when freely alienable land was under individual

ownership.” /d. In the absence of any treaty immunity, Judge

Guy would have followed what he understood to have been

the Ninth Circuit’s approach in Lummi and held that even on

the L’Anse Reservation the “alienable status” of reservation

fee land, whatever its source, “determines its taxability.”

5 F.3d at 1357. :

Petitioners did not seek en banc review of the court of

appeals’ dectsion.

REASONS FOR DENYING THE PETITION

The court of appeals’ holding results from its straight-

forward application of this Court’s longstanding and well-

established precedents to the particular language and history of

the 1854 Treaty and to land allotted and made alienable under

that Treaty. The decision below does not conflict with this

Court’s cases or with the Ninth Circuit’s decision in Lummi —

in which the relevant treaty, unlike here, expressly contemplated

potential alienation and forfeiture of allotted land in accordance

with the specific consent of Congress, which was subsequently

obtained. Nothing about the lower courts’ application of settled

legal principles to the unique facts of this case merits this Court’s

review.

|. A treaty is a negotiated agreement, the meaning of which

is governed by the intentions and “shared expectations of the

contracting parties.” Air France v. Saks, 470 U.S. 392, 399

(1985); accord Mille Laes Band;526 U.S. at 206. Because each

treaty is a unique agreement created in different factual

circumstances by different parties, treaty language must be

analyzed in light of the particular facts and circumstances

surrounding its making in order to ascertain the intentions of

the contracting parties. Mille Lacs Band, 526 U.S. at 202 (“[T]he

State’s argument that similar language in two Treaties involving

different parties has precisely the same meaning reveals a

fundamental misunderstanding of basic principles of treaty

construction.”’); Air France, 470 U.S. at 400-03; Choctaw Nation

of Indians v. United States, 318 U.S. 423, 431-32 (1943). An

Indian treaty, moreover, must be interpreted “to give effect to

the terms as the Indians themselves would have understood

them.” Mille Lacs Band, 526 U.S. at 196. Finally, Indian treaties

must be construed liberally in favor of the Indians, with any

ambiguities resolved in their favor. /d. at 200; Worcesier, 31

U.S. (6 Pet.) at 582 (“The language used in treaties with the

Indians should never be construed to their prejudice. If words

be made use of which are susceptible of a more extended

meaning than their plain import, as connected with the tenor of

the treaty, they should be considered as used only in the latter

sense.”’).

Carefully applying these principles, both lower courts

interpreted the 1854 Treaty to preclude state taxation of the land

at issue based on the Treaty’s unique language, purpose,

negotiations, and historical context. Pet. App. 14a-22a, 42a-

48a. There is nothing about the courts’ application of settled

law to construe a particular Indian treaty that would warrant

review by this Court.

2. Contrary to the Petitioners’ contention (Pet. 5-7), the

court of appeals’ holding is consistent with both the holding

and the rationale of Cass County. There, the Court recited the

well-established common-law rule that “{s]tate and local

governments may not tax Indian reservation land absent cession

of jurisdiction or other federal statutes permitting it.” 524 U.S.

at 110 (citing County of Yakima, 502 U.S. at 258, and Mescalero

Apache Tribe v. Jones, 411 U.S. 145, 148 (1973)) (internal

quotations omitted). The Court also noted that it has

“consistently declined to find that Congress has authorized such

taxation unless it has made its intention to do so unmistakably

clear.” 524 U.S. at 110 (citing County of Yakima, 502 U.S. at

258, and Montana v. Blackfeet Tribe of Indians, 471 U.S. 759,

765 (1985)) (internal quotations omitted). The Court held that

“{w]hen Congress [by statute] makes reservation lands freely

alienable, it is ‘unmistakably clear’ that Congress intends that

land to be taxable by state and local governments, unless a

contrary intent is ‘clearly manifested.*” 524 U.S. at 113 (quoting

County of Yakima, 502 U.S. at 263).

As Petitioners acknowledge (Pet. 5), Cass County found

the requisite “unmistakably clear” indication of congressional

intent to override common-law Indian tax immunity in an

Act of Congress, the Nelson Act, 25 Stat. 642 (1889), which

authorized and effectuated the sale and alienation of Indian

reservation land within Minnesota. 524 U.S. at 108, 113. The

Court relied on two earlier decisions which also concerned

the interpretation of congressional statutes that rendered

Indian reservation land alienable, County of Yakima, 502 U.S.

at 258 (involving the General Allotment Act and the Burke

Act, 34 Stat. 182 (1906)), and Goudy v. Meath, 203 U.S.

146, 147 (1906) (involving the Act of Mar. 3, 1893, ch. 209,

27 Stat. 612, 633 (1893)). Each case addressed the intent of

Congress, in enacting a statute making Indian reservation

land alienable (or consenting to a state statute with that

effect), to override otherwise applicable rules of immunity

from state taxation. E.g., Cass County, 524 U.S. at 106, 110,

113, 114, 115; County of Yakima, 502 U.S. at 258-59, 263-

64, 267; Goudy, 203 U.S. at 147, 148, 149, 150.

The situation here is different. The lower courts

construed the 1854 Treaty to assure the Indian parties their

traditional tax immunity, even if land was allotted and became

voluntarily alienable pursuant to the Treaty’s terms.

Cass County and its predecessors do not affect that

interpretation. It makes no sense to argue that a treaty that

preserved tax immunity (through its non-removal provision

in Article 11) embodied, at the same time, an “unmistakably

clear” intent to override that same immunity. The Cass

County cases would be relevant in construing a later

congressional Act that expressly modified a treaty or made

reservation land alienable. Neither of those situations is

present here. The court of appeals properly rejected

Petitioners’ attempt to identify any such later statute below

(Pet. App. 31a-33a), and Petitioners do not renew that attempt

here. There is thus no basis for Petitioners’ claim of a conflict

with Cass County.’

3. There is likewise no conflict with the Ninth Circuit’s

decision in Lummi. The Lummi court described the issue

before it in broad terms as involving the status of land

“patented under a treaty,” and concluded that the land in

question in the case was “taxable if it is alienable.” 5 F.3d at

1357, 1358. But the Treaty of Point Elliott at issue in Lummi,

like the treaty before this Court in Goudy v. Meath, was

“patterned after the Treaty with the Omahas,” which

permitted allotment, but provided that “restrictions on

alienation would remain until the state legislature, with

Congressional consent, removed them.” Lummi, 5 F.3d at

1357-58 (emphasis added).* The fee land at issue in Lummi

(like the land in Goudy) was thus made alienable pursuant

2. Nothing in the court of appeals’ decision questions “the

accepted constitutional position of self-executing treaties ... as law

of the land.” Pet. 6. To the contrary, the courts below construed the

treaty and, finding no superseding congressional enactment, enforced

it in accordance with its terms.

3. Article 7 of the Treaty of Point Elliott (Treaty with the

Dwamish, Suquamish et a/., Jan. 22, 1855, 12 Stat. 927) incorporated

by reference Article 6 of the Treaty with the Omaha, Mz... 16, 1854,

10 Stat. 1043, which provided that allotments

shall be exempt from levy, sale, or forfeiture, which

conditions shall continue in force, until a State

constitution, embracing such land within its boundarics,

shall have been formed, and the legislature of the State

shall remove the restrictions. ... No State legislature

shall remove the restrictions herein provided for, without

the consent of Congress.

to specific later Acts of Congress. /d.; see also id. at 1356-

57 (citing 25 U.S.C. § 372); id. at 1360 (Beezer, J., dissenting)

(same). Lummi did not consider a case like this one, where

the treaty itself preserves immunity from taxation, and land

became alienable under the terms of the treaty itself rather

than pursuant to any later congressional action. There is no

reason to assume that the Ninth Circuit, faced with facts

similar to those here, would reach a result different from the

one reached by the Sixth Circuit in this case.

4. Petitioners argue secondarily that the courts below

somehow erred in resolving this case on summary judgment.

Pet. 9-11. That is incorrect. Contrary to Petitioners’

suggestion, the parties’ experts disagreed only about the legal

conclusion of how the 1854 Treaty should be interpreted in

light of an undisputed historical record. Pet. App. 20a-22a.

Indeed, Petitioners themselves initiated the cross-motions

for summary judgment that led to the decisions below. In

their brief in support of their motion in the district court,

Petitioners asserted that “[s}ummary judgment under Fed.

R. Civ. Pro. 56 is ... appropriate as a matter of law on

whether [the] state can impose an ad valorem property tax

on the land in this case,” that its claims involved “a pure

question of law,” that “{s]ummary judgment is appropriate

on these types of issues because there is no genuine issue of

material fact,” and that “the Community has failed to raise a

genuine issue of material fact sufficient to avoid dismissal

with prejudice.” See Defs.’ Br. Supp. Mot. Dismiss and/or

Summ. J. at 3, 11, 19, R. 62, 6th Cir. App. 361, 363, 371,

379. Likewise, during the hearing on the cross-motions,

Petitioners informed the court that no fact issues remained

that would prevent the issuance of summary judgment.

Transcript of 2005 Motion Hearing at 61-62, R. 105, 6th Cir.

App. 727, 787-88. Reviewing the summary judgment record

submitted by the parties, each lower court applied established

Jegal rules of treaty interpretation and explained why those

rules supported the Community’s interpretation as a matter

of law. Pet. App. 13a-22a, 40a-48a. Petitioners’ procedural

argument provides no basis for further review.

5. Even if there were grounds to question the outcome

below (which there are not), this case is not of sufficient

general importance to warrant review. The court of appeals’

decision is unlikely to have any impact beyond the L’Anse

Reservation. The vast majority of the fee land within Indian

reservations in the United States — even land that was

originally allotted pursuant to the terms of a treaty — became

alienable pursuant to the General Allotment Act or other post-

treaty congressional enactments.* Moreover, so far as the

Community’s counsel are aware (after substantial inquiry),

the guarantee against involuntary removal provided in Article

11 of the 1854 Treaty, which the courts below properly

construed to preserve tax immunity even for land made

alienable under the Treaty, is unique among extant Indian

treaties. While Congress no doubt has the power to modify

or abrogate the Community’s treaty immunity should it

choose to do so, there is no reason for intervention by this

Court.

4. See <http://www.indianlandtenure.org/ILT Fallotment/

specinfo/specinfo.htm> (detailed charts available by clicking map)

(visited Oct. 25, 2006).

CONCLUSION

The petition for a writ of certiorari should be denied.

October, 2006

Respectfully submitted,

VERNLE C. Durocuer, JR.

Mary J. Srreirz*

CHRISTOPHER R. DUGGAN

Dorsey & WuitNEY LLP

50 South Sixth Street

Suite 1500

Minneapolis, MN 55402

(612) 340-2600

Joun R. BAKER

Tribal Attorney

KEWEENAW Bay INDIAN COMMUNITY

107 Beartown Road

Baraga, MI 49908

(906) 353-4106

Counsel for Respondent

* Counsel of Record

APPENDIX

TREATY WITH THE CHIPPEWA, 1854.

Articles of a treaty made and concluded at La Pointe, in the

State of Wisconsin, between Henry C. Gilbert and David B.

Herriman, commissioners on the part of the United States,

and the Chippewa Indians of Lake Superior and the

Mississippi, by their chiefs and head-men.

ARTICLE 1. The Chippewas of Lake Superior hereby

cede to the United States all the lands heretofore owned by

them in common with the Chippewas of the Mississippi, lying

east of the following boundary-line, to wit: Beginning at a oe.

point, where the east branch of Snake River crosses the

southern boundary-line of the Chippewa country, running

thence up the said branch to its source, thence nearly north,

in a Straight line, to the mouth of East Savannah River, thence

up the St. Louis River to the mouth of East Swan River,

thence up the East Swan River to its source, thence in a

straight line to the most westerly bend of Vermillion River,

and thence down the Vermillion River to its mouth.

The Chippewas of the Mississippi hereby assent and

agree to the foregoing cession, and consent that the whole

amount of the consideration money for the country ceded

above, shall be paid to the Chippewas of Lake Superior, and

-in consideration thereof the Chippewas of Lake Superior

hereby relinquish to the Chippewas of the Mississippi, all

their interest in and claim to the lands heretofore owned by

them in common, lying west of the above boundry-line.

Appendix

ARTICLE 2. The United States agree to set apart and

withhold from sale, for the use of the Chippewas of Lake

Superior, the following described tracts of land, viz:

Ist. For the L’Anse and Vieux De Sert bands, all the

unsold lands in the following townships in the State of

Michigan: Township fifty-one north range thirty-three west;

township fifty-one north range thirty-two west; the east half

of township fifty north range thirty-three west; the west half

of township fifty north range thirty-two west, and all of

township fifty-one north range thirty-one west, lying west

of Huron Bay.

2d. For the La Pointe band, and such other Indians as

may see fit to settle with them, a tract of lar ' bounded as

follows: Beginning on the south shore of Lake Superior, a

few miles west of Montreal River, at the mouth of a creek

called by the Indians Ke-che-se-be-we-she, running thence

south to a line drawn east and west through the centre of

township forty-seven north, thence west to the west line of

said township, thence south to the southeast corner of

township forty-six north, range thirty-two west, thence west

the width of two townships, thence north the width of two

townships, thence west one mile, thence north to the lake

shore, and thence along the lake shore, crossing Shag-waw-

me-quon Point, to the place of beginning. Also two hundred

acres on the northern extremity of Madeline Island, for a

fishing ground.

3d. For the other Wisconsin bands, a tract of land lying

about Lac De Flambeau, and another tract on Lac Court

Orielles, each equal in extent to three townships, the

Appendix

boundaries of which shall be hereafter agreed upon or fixed

under the direction of the President.

4th. For the Fond Du Lac bands, a tract of land bounded

as follows: Beginning at an island in the St. Louis River,

above Knife Portage, called by the Indians Paw-paw-sco-

me-me-tig, running thence west to the boundary-line

heretofore described, thence north along said boundary-line

to the mouth of Savannah River, thence down the St. Louis

River to the place of beginning. And if said tract shall contain

less than one hundred thousand acres, a strip of land shall be

added on the south side thereof, large enough to equal such

deficiency.

Sth. For the Grand Portage band, a tract of land bounded

as follows: Beginning at a rock a little east of the eastern

extremity of Grand Portage Bay, running thence along the

lake shore to the mouth of a small stream called by the Indians

Maw-ske-gwaw-caw-maw-se-be, or Cranberry Marsh River,

thence up said stream, across the point to Pigeon -River,

thence down Pigeon River to a point opposite the starting-

point, and thence across to the place of beginning.

6th. The Ontonagon band and that subdivision of the

La Pointe band of which Buffalo is chief, may each select,

on or near the lake shore, four sections of land, under the

direction of the President, the boundaries of which shall be

defined hereafter. And being desirous to provide for some of

his connections who have rendered his people important

services, it is agreed that the chief Buffalo may select one

section of land, at such place in the ceded territory as he may

see fit, which shall be reserved for that purpose, and conveyed

Appendix

by the United States to su h person or persons as he may

direct.

7th. Each bead of a family, or single person over twenty-

one years of age at the present time of the mixed bloods,

belonging to the Chippewas of Lake Superior, shall be

entitled to eighty acres of land, to be selected by them under

the direction of the President, and which shall be secured to

them by patent in the usual form.

ARTICLE 3. The United States will define the

boundaries of the reserved tracts, whenever it may be

necessary, by actual survey, and the President may, from time

to time, at his discretion, cause the whole to be surveyed,

and may assign to each head of a family or single person

over twenty-one years of age, eighty acres of land for his or

their separate use; and he may, at his discretion, as fast as

the occupants become capable of transacting their own

affairs, issue patents therefor to such occupants, with such

restrictions of the power of alienation as he may see fit to

impose. And he may also, at his discretion, make rules and

regulations, respecting the disposition of the lands in case

of the death of the head of a family, or single person

occupying the same, or in case of its abandonment by them.

And he may also assign other lands in exchange for mineral

lands, if any such are found in the tracts herein set apart.

And he may also make such changes in the boundaries of

such reserved tracts or otherwise, as shall be necessary to

prevent interference with any vested rights. All necessary

roads, highways, and railroads, the lines of which may run

through any of the reserved tracts, shall have the right of

way through the same, compensation being made therefor as

‘n other cases.

Appendix

ARTICLE 4. In consideration of and payment for the

country hereby ceded, the United States agree to pay to the

Chippewas of Lake Superior, annually, for the term of twenty

years, the following sums, to wit: five thousand dollars in

coin; eight thousand dollars in goods, household furniture

and cooking utensils; three thousand dollars in agricultural

implements and cattle, carpenter’s and other tools and

building materials, and three thousand dollars for moral and

educational purposes, of which last sum, three hundred

dollars per annum shall be paid to the Grand Portage band,

to enable them to maintain a school at their village. The

United States wilkatse-pay the further sum of ninety thousand

dollars, as the chiefs in open council may direct, to enable

them to meet their present just engagements. Also the further

sum of six thousand dollars, in agricultural implements,

household furniture, and cooking utensils, to be distributed

at the next annuity payment, among the mixed bloods of said

nation. The United States will also furnish two hundred guns,

one hundred rifles, five hundred beaver-traps, three hundred

dollars’ worth of ammunition, and one thousand dollars’

worth of ready-made clothing, to be distributed among the

young men of the nation, at the next annuity payment.

ARTICLE 5. The United States will also furnish a

_blacksmith and assistant, with the usual amount of stock,

during the continuance of the annuity payments, and as much

longer as the President may think proper, at each of the points

herein set apart for the residence of the Indians, the same to

be in lieu of all the employees to which the Chippewas of

Lake Superior may be entitled under previous existing

treaties.

6a ,

Appendix

ARTICLE 6. The annuities of the Indians shall not be

taken to pay the debts of individuals, but satisfaction for

depredations committed by them shall be made by them in

such manner as the President may direct.

ARTICLE 7. No spirituous liquors shall be made, sold,

or used on any of the lands herein set apart for the residence

of the Indians, and the sale of the same shall be prohibited in

the Territory hereby ceded, until otherwise ordered by the

President.

ARTICLE 8. It is agreed, between the Chippewas of

Lake Superior and the Chippewas of the Mississippi, that

the former shall be entitled to two-thirds, and the latter to

one-third, of all benefits to be derived from former treaties

existing prior to the year 1847.

ARTICLE 9. The United States agree that an

examination shall be made, and all sums that may be found

equitably due to the Indians, for arrearages of annuity or other

thing, under the provisions of former treaties, shall be paid

as the chiefs may direct.

ARTICLE 10. All missionaries, and teachers, and other

persons of full age, residing in the territory hereby ceded, or

upon any of the reservations hereby made by authority of

law, shall be allowed to enter the land occupied by them at

the minimum price whenever the surveys shall be completed

to the amount of one quarter-section cach.

ARTICLE 11. All annuity payments to the Chippewas

of Lake Superior, shall hereafter be made at L’Anse, La

Appendix

Pointe, Grand Portage, and on the St. Louis River; and the

Indians shall not be required to remove from the homes

hereby set apart for them. And such of them as reside in the

territory hereby ceded, shall have the right to hunt and fish

therein, until otherwise ordered by the President.

ARTICLE 12. Inconsideration of the poverty of the Bois

Forte Indians who are parties to this treaty, they having never

received any annuity payments, and of the great extent of

that part of the ceded country owned exclusively by them,

the following additional stipulations are made for their

benefit. The United States will pay the sum of ten thousand

dollars, as their chiefs in open council may direct, to enable

them to meet their present just engagements. Also the further

sum of ten thousand dollars, in five equal annual payments,

in blankets, cloth, nets, guns, ammunition, and such other

articles of necessity as they may require.

They shall have the right to select their reservation at

any time hereafter, under the direction of the President; and

the same may be equal in extent, in proportion to their

numbers, to those allowed the other bands, and be subject to

the same provisions.

They shall be allowed a blacksmith, and the usual

smithshop supplies, and also two persons to instruct them in

farming, whenever in the opinion of the President it shall be

proper, and for such length of time as he shall direct.

It is understood that all Indians who are parties to this

treaty, except the Chippewas of the Mississippi, shall

hereafter be known as the Chippewas of Lake Superior.

Appendix

Provided, That the stipulation by which the Chippewas of

Lake Superior relinquishing their right to land west of the

boundary-line shall not apply to the Bois Forte band who

are parties to this treaty.

ARTICLE 13. This treaty shall be obligatory on the

contracting parties, as soon as the same shall be ratified by

the President and Senate of the United States.

In testimony whereof, the said Henry C. Gilbert, and the

said David B. Herriman, commissioners as aforesaid, and

the undersigned chiefs and headmen of the Chippewas of

Lake Superior and the Mississippi, have hereunto set their

hands and seals, at the place aforesaid, this thirtieth day of

September, one thousand eight hundred and fifty-four.

HENRY C. GILBERT,

DAVID B. HERRIMAN,

Commissioners.

RICHARD M. SMITH, Secretary.

Appendix

La Pointe Band.

KE-CHE-WAISH-KE,

or the Buffalo, Ist chief,

- CHAY-CHE-QUE-OH, 2d chief,

A-DAW-WE-GE-ZHICK, or

Each Side of the sky, 2d chief,

O-SKE-NAW-WAY, or the

Youth, 2d chief,

MAW-CAW-DAY-PE-NAY-SE,

or the Black Bird, 2d chief,

NAW-WAW-NAW-QUOT,

headman,

KE-WAIN-ZEENCE, headman,

WAW-BAW-NE-ME-KE, or the

White Thunder, 2d chief,

PAY-BAW-ME-SAY, or the

Soarer, 2d chief,

NAW-WAW-GE-WAW-NOSE,

or the Little Current, 2d chief,

MAW-CAW-DAY-WAW-QUOT, -

or the Black Cloud, 2d chief,

ME-SHE-NAW-WAY, or the

Disciple, 2d chief,

KEY-ME-WAW-NAW-UM,

headman,

SHE-GOG, headman,

his x mark.

his X mark.

his x mark.

[L.S.]

10a

Appendix

Ontonagon Band.

O-CUN-DE-CUN, or the

Buoy ist chief, his x mark.

WAW-SAY-GE-ZHICK, or the

Clear Sky, 2d chief, his x mark.

KEESH-KE-TAW-WUG,

headman, his X mark.

L’Anse Band.

DAVID KING, Ist chief, his x mark.

JOHN SOUTHWIND,

headman, his x mark.

PETER MARKSMAN,

headman, his x mark.

NAW-TAW-ME-GE-ZHICK,

or the First Sky, 2d chief, his x mark.

AW-SE-NEECE, headman, his x mark.

Vieux De Sert Band.

MAY-DWAY-AW-SHE,

Ist chief, his x mark.

POSH-QUAY-GIN, or the

Leather, 2d chief, his x mark.

[L.S.]

lla

Appendix

Grand Portage Band.

SHAW-GAW-NAW-

SHEENCE, or the Little

Englishman, Ist. chief, his x mark.

MAY-MOSH-CAW-WOSH,

headman, his x mark.

AW-DE-KONSE, or the

Little Reindeer, 2d chief, his x mark.

WAY-WE-GE-WAM,

headman, his x mark.

Fond Du Lac Band.

SHING-GOOPE,

or the Balsom, Ist chief, his x mark.

MAWN-GO-SSIT, or the

Loon’s Foot, 2d chief, his x mark.

MA Y-QUAW-ME-WE-

GE-ZHICK, headman, his x mark.

KEESH-KAWK, headman, his x mark.

CAW-TAW-WAW-BE-DAY,

headman, his x mark.

O-SAW-GEE, headman, his x mark.

KE-CHE-AW-KE-WAIN-ZE,

headman, his x mark.

NAW-GAW-NUB, or the

Foremost Sitter, 2d chief, his x mark.

AIN-NE-MAW-SUNG, 2d chief, his x mark.

NAW-AW-BUN-WAY, headman, his x mark.

12a

Appendix

WAIN-GE-MAW-TUB, headman, his x mark.

AW-KE-WAIN-ZEENCE,

headman, his x mark.

SHAY-WAY-BE-NAY-SE,

headman, his x mark.

PAW-PE-OH, headman, his x mark.

Lac Court Oreille Band.

AW-KE-WAIN-ZE,

or the Old Man, Ist chief, his x mark.

KEY-NO-ZHANCE, or the

Little Jack Fish, lst chief, his x mark.

KEY-CHE-PE-NAY-SE, or the

Big Bird, 2d chief, his x mark.

KE-CHE-WAW-BE-SHAY-SHE,

or the Big Martin, 2d chief, his x mark.

WAW-BE-SHAY-SHEENCE,

headman, his x mark.

QUAY-QUAY-CUB, headman, his x mark

SHAW-WAW-NO-ME-TAY,

headman, his x mark.

NAY-NAW-ONG-GAY-BE,

or the Dressing Bird,|st chief, his x mark.

O-ZHAW-WAW-SCO-GE-

ZHICK, or the Blue Sky, 2d chief, his x mark.

I-YAW-BANSE, or the

Little Buck, 2d chief, his x mark.

KE-CHE-E-NIN-NE, headman, his x mark.

HAW-DAW-GAW-ME, headman, his x mark.

WAY-ME-TE-GO-SHE, headman, his x mark.

PAY-ME-GE-WUNG, headman, his x mark.

13a

Appendix

Lac Du Flambeau Band.

AW-MO-SE, or the Wasp,

Ist chief, his x mark.

KE-NISH-TE-NO, 2d chief, his x mark.

ME-GEE-SEE, OR THE

EAGLE, 2d chief, his x mark.

KAY-KAY-CO-GWAW-

NAY-AW-SHE, headman, his x mark.

O-CHE-CHOG, headman, his x mark.

NAY-SHE-KAY-G WAW-

NAY-BE, headman, his x mark.

O-SCAW-BAY-WIS,

or the Waiter, Ist chief, his x mark.

QUE-WE-ZANCE, or the

White Fish, 2d chief, his x mark.

NE-GIG, or the Otter, 2d chief, his x mark.

NAY-WAW-CHE-GE-GHICK

-MAY-BE, headman, his x mark.

QUAY-QUAY-KE-CAH,

headman, his x mark.

Bois Forte Band.

KAY-BAISH-CAW-DAW-

WAY, or Clear Round the

Prairie, lst chief, his x mark.

WAY-ZAW-WE-GE-ZHICK,

SKING, headman, his x mark.

O-SAW-WE-PE-NAY-SHE,

headman, his x mark.

(L.S.]

[L.S.]

14a

Appendix

The Mississippi Bands.

QUE-WE-SAN-SE, or Hole

in the Day, head chief,

CAW-NAWN-DAW-WAW-

WIN-ZO, or the Berry Hunter,

lst chief,

WAW-BOW-JIEG, or the

White Fisher, 2d chief,

OT-TAW-WAW, 2d chief,

QUE-WE-ZHAN-CIS, or the

Bad Boy, 2d chief,

BYE-A-JICK, or the

Lone Man, 2d chief,

I-YAW-SHAW-WAY-GE-

ZHICK, or the Crossing

Sky, 2d chief,

MAW-CAW-DAY, or the

Bear’s Heart, 2d chief,

KE-WAY-DE-NO-GO-

NAY-BE, or the Northern

Feather, 2d chief,

ME-SQUAW-DACE, headman,

NAW-GAW-NE-GAW-bo,

~ headman,

WAWM-BE-DE-YEA, headman,

WAISH-KEY, headman,

CAW-WAY-CAW-ME-GE-

SKUNG, headman,

MY-YAW-GE-WAY-WE-

DUNK, or the One who

carries the Voice, 2d chief,

his x mark.

lSa

Appendix

John F. Godfroy,

Geo. Johnston,

S.A. Marvin,

Louis Codot, Interpreters.

Paul H. Beaulieu,

Henry Blatchford,

Peter Floy,

Executed in the presence of

Henry M. Rice,

J.W. Lynde,

G.D. Williams,

B.H. Connor,

E.W. Muldough,

Richard Godfroy,

D.S. Cash,

H.H. McCullough,

E. Smith Lee,

Wm. E. Vantassel,

L.H. Wheeler.

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