_ LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS

_ LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS

Tribal Court

Court Mailing Address: 7500 Odawa Circle, Harbor Springs, MI 49740 Phone: 231-242-1462

TRIBAL COURT

Case No: €-200-0914

Timothy LaCroix, et al.

Plaintiffs,

vs,

Rick Snyder, Governor Michigan, er al.

Defendants,

ORDER OF DISMISSAL FOR LACK OF PERSONAL AND SUBJECT MATTER

JURISDICTION

A. Factual Summary ond Procedural History

On September 23, 2014, Plaintiffs Article32.org, an advocacy group incorporated

under the laws of the Little Traverse Bay Bands of Odawa Indians (“LTBB”); Timothy

LaCroix, an LTBB Tribal Citizen and board member of Article32,org; and Phil Bellfy,

board member of Article32.org, filed a Complaint seeking immediate injunctive relief

against the named Defendants in this case. Defendants are State of Michigan officials.

The Plaintiffs’ Complaint alleges that the Defendants had authorized ot were “poised to

immediately issue” fresh water withdrawal permits for fracking activities that threatened

to affect areas within the ceded waters of the 1836 Treaty of Washington and 1855 Treaty

territory, in violation of LTBB law, State law, Federal law by way of treaty, and the

Intergovernmental Water Accord of 2004, which the Plaintiffs maintain prohibit certain

fracking activity. Plaintiffs’ Complaint, pp. 2-3 (citing LTBB Protection of Great Lakes

Code, LTBB Natural Resource Protection Code, Michigan Natural Resources and

Environmental Protection Act, Great Lakes—St. Lawrence River Basin Sustainable

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Water Resources Agreement, and the Intergovernmental Water Accord of 2004),

Specifically at issue is a permit issued by the State of Michigan to Encana Oil (USA),

Inc. (“Encana”), for the State Excelsior 5-12 HD1 well (Permit # 60767) located in

Excelsior Township, Kalkaska County, Michigan.! Encana has since sold its interest in

all of its oil and gas leases in Michigan to Marathon Oil Company (“Marathon”). .

Pursuant to LTBB Rules of Civil Procedure (LTBBRCP”), R. LX, the Plaintiffs request

an immediate injunction enjoining the Defendants from authorizing the complained of

fracking activity because the “issuance of fresh-water withdrawal permits by the

Defendants would result in irreparable harm” to the resources protected by the -

aforementioned documents.

Upon receipt and review of the Plaintiffs’ Complaint, but prior to receiving the

Defendants’ Response, the Court issued an Order of Dismissal for Lack of Subject Matter

Jurisdiction, LaCroix, ef al. y. Snyder, No. C-200-0914 (Oct. 2, 2014). The Court

reasoned that the documents and agreements cited to in the Plaintiffs’ Complaint that

purport to give the Plaintiffs standing to seek recourse in this action, either solely

authorize Tribal or State officials—not private parties—to bring suit to enforce their

terms, or that the agreements serve as unenforceable pledges between the State of

Michigan and several of the federally-recognized tribes located in ceded territories within

Michigan that do not create a private right of action. Id. ;

In response to the Court’s actions, the Plaintiffs filed an appeal of the Court’s

Order of Dismissal with the Tribal Appellate Court (‘Appellate Court”), The Appellate

Court did not issue an opinion on the Plaintiffs’ appeal on the merits, and instead vacated

the Court’s Order of Dismissal and remanded the case back to this Court in order to

provide the Defendants with an opportunity to file a formal response to the Plaintiffs’

original Complaint. LaCroix & Bellfy v. Synder et al., No. A-024-1014 (Little Traverse

Bay Bands of Odawa Indians Ct. App. Dec. 12, 2014), Absent such an opportunity to file

a response, the Appellate Court reasoned that an Order of Dismissal by the Court was

premature as a proper record of the case was not compiled and the Court’s opinion was 7

not informed by arguments from all of the parties to the case. Id.

On remand, the Clerk of the Court, in accordance with the LTBBRCP, issued a

briefing schedule to the parties that, inter alia, scheduled a hearing date for January 23,

2015 and provided the Defendants an opportunity to reply to the Plaintiffs’ original

Complaint. As an opening response, the Defendants filed a Motion to Extend Deadlines,

requesting that the Court extend the deadlines for all briefings, hearings, and other

actions concerning the Plaintiffs’ Complaint for at least thirty days after the Court rules

on the Defendants’ Motion to Dismiss,” Defendants’ Motion to Extend Deadlines, filed

on December 23, 2014. The rationale for the Defendants’ Motion to Extend Deadlines

' The Defendants’ Motion to Dismiss states with supporting documentation, and the Plaintiffs do not

contest this point, that Marathon does not at present have authorization to conduct water withdrawal for

hydraulic fracturing. It is unclear whether Marathon wil! seek authorization to conduct water withdrawal

for hydraulic fracturing prior to it’s the State Excelsior 5-12 HD] well permit expiring on June 21, 2015.

? Defendants filed their Motion to Dismiss Plaintiffs’ Complaint on January 16, 2015.

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concerned insufficient time under the briefing schedule for the Defendants to file a

Motion to Dismiss, and for the Plaintiffs to subsequently respond, before the scheduled

hearing on January 23, 2015. After reviewing the Defendants’ Motion to Extend

Deadlines and receiving no objection to the Motion from the Plaintiffs within the time

_ allowed in LTBBRCP, Rule XIII, the Court found good cause for granting the Motion,

and issued such an Order on February 6, 2015. LaCroix et al. v, Snyder et al., No. C-

200-0914 (Feb. 6, 2015),

On February 9, 2015, the Court heard oral argument on the Defendants’ Motion to

Dismiss.° During the hearing on the Defendants’ Motion to Dismiss, the Defendants,

through their Attorney, Assistant Attorney General Jaclyn Shoshana Levine, argued that

the Plaintiffs’ Complaint should be dismissed for lack of personal jurisdiction over the

Defendants. Specifically, the Defendants, through their oral argument and brief, argued

that Article IV of the LTBB Constitution, read in conjunction with Article Ill, Section H

of the LTBB Constitution, holds that the jurisdiction of the Tribe extends to “any and all

persons or activities” within the territory of the LTBB set out in the Treaty of 1855, 11

Stat. 621, and in the Treaty of 1836, 7 Stat. 491, “plus any lands outside of those

boundaries which are now or in the future declared to be [LTBB] reservation” by the

Department of the Interior. LTBB Const. arts, II, Section H; art. IV, Sections A,B.

Jurisdiction over members of the LTBB additionally extends beyond the territory outlined

in the 1855 and 1836 treaties “whenever they are acting pursuant to, or jurisdiction is

created or affirmed by treaty, LTBB law, Federal law relating to the tribe or its members,

or any “compact, contract or other agreement entered into pursuant to applicable law .

pertaining” to the LTBB or its members. id. at art. IV, Section B,*

Because the well in question in this action is located in Excelsior Township,

Kalkaska County, Michigan, which the Defendants contend is outside of the Tribe’s 1855

and 1836 Treaty territory and part of land and mineral rights owned by the State of

Michigan, and is not otherwise part of any reservation declared by the Department of the

Interior, the Defendants argue that the Court lacks jurisdiction over them based on the

aforementioned constitutional provisions, :

Additionally, the Defendants, in their brief, argue that the Court lacks subject

matter jurisdiction to hear and address the issues complained of in the Plaintiffs’

Complaint. Although the Defendants’ brief also claims that Federal Jaw prohibits the

Court from exercising jurisdiction over the Defendants, the Defendants at oral argument

emphasized to the Court their belief that the matter can be resolved on the basis of LTBB

law alone.

The opinion of the Court follows.

3 The Court notes that the Plaintiffs, despite being properly served by First Class Mail to their addresses on

file, failed to appear at the hearing on the Defendants’ Motion to Dismiss.

“Tt has been established in the Defendants’ Brief and supporting affidavits, that none of the Defendants are

members of the Little Traverse Bay Bands of Odawa Indians and that none of the Defendants are members

of a federally-recognized Indian tribe, something that the Plaintiffs do not contest,

3

B, Discussion

Personal and Territorial Jurisdiction

As a general matter, the Court notes that it must possess both personal jurisdiction

over the parties to a case and subject matter jurisdiction in order to rule on the merits of a

case. See LTBBRCP, R. XVI(b)(2). Parties against whom a claim has been made “may

move the Court to dismiss the claim of the adverse” parties for “lack of jurisdiction over

the person.” Jd. With respect to personal jurisdiction, the LTBB Constitution defines the

extent of Tribal jurisdiction over both members and nonmembers, Specifically, Article

IV.B of the Constitution states:

“The jurisdiction of the Little Traverse Bay Bands of Odawa Indians shall

extend to all territory set forth in Section (A) of this article and to any

and all persons or activities therein based upon the inherent sovereign

authority of the Little Traverse Bay Bands of Odawa Indians and Federal

law. The jurisdiction includes but is not limited to air, water, surface,

subsurface, natural and cultural resources, and any interests therein.

Jurisdiction over members of the Little Traverse Bay Bands of Odawa

Indians shall extend beyond the territory set out in Section (A) whenever

they are acting pursuant to...” .

Article IV.A of the Constitution explains that the “territory of the Little Traverse

Bay Bands of Odawa Indians shall encompass all lands and waters within the Reservation

as defined in Article I] (H) and any other lands which are now and hereafter owned or

acquired by the Little Traverse Bay Bands of Odawa Indians or held in trust for the Tribe

by the United States,

The term “Reservation” is defined in Article IILH to mean:

“[AJll lands within the boundaries of the reservations for the Little

Traverse Bay Bands of Odawa Indians as set out in Article I, paragraphs

third and fourth of the Treaty of 1855, 11 Stat. 621, plus any lands set out

in Articles Second and Third of the Treaty of March 28, 1836, 7 Stat, 491,

in the event that the 1836 reservation is determined to include lands which

are not included within the 1855 reservation, plus any lands outside of

those boundaries which are now or in the future declared to be Little

Traverse Bay Bands of Odawa Indians reservation by the U.S. Department

of the Interior,”

The Treaty of 1855, Article 1, paragraphs third and fourth, identify the townships

in Emmett and Charlevoix Counties set aside as a reservation for the LTBB:

“Third, For the Beaver Island Band—High Island, and Garden Island, in

Lake Michigan, being fractional townships 38 and 39 north, range 11

west—40 north, range 10 west, and in part 39 north, range 9 and 10 west,

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Fourth. For the Cross Village, Middle Village, L’Arbrechroche and Bear

Creek bands, and of such Bay du Noc and Beaver Island Indians as may

prefer to live with them, townships 34-39, inclusive, north, range 5 west—

townships 34 to 38, inclusive, north range 6 west—townships 34, 36, and

37 north, range 7 west, and all that part of township 34 north, range 8

west, lying north of Pine River.”

By the plain language of Article HLH, Atticle IV.A, and Article IV.B of the

Constitution, this Court and Tribe lack jurisdiction over all territory outside of the defined

provisions detailed above as well as over “any and all persons or activities therein.”

As is detailed in exhibits provided by the Defendants, the State Excelsior 5-12

HD1 well does not occur within the territory defined in Article IV.A of the Constitution,

Specifically, the State Excelsior 5-12 HD1 well lies in Excelsior Township, described as

township 27 north, range 7 west, falling outside of the range of the townships reserved to

the LTBB in the Treaty of 1855. Ex. F, Permit (location and footages box) in the case

file. This range, which is within Kalkaska County, is south of the Treaty of 1855

reservation. Moreover, the Defendants have established, and the Plaintiffs do not

contend otherwise, that the State of Michigan owns the land and mineral rights to the

State Excelsior 5-12 HD1 well. Ex. A, Fitch Affidavit, P. 8, in the case file. Therefore,

the land is not held in trust (and declared as Reservation land by the Department of the

Interior) and considered as reservation land subject to the jurisdiction of the LTBB.

Accordingly, the Court is required to dismiss this action for lack of personal jurisdiction

over the Defendants for the acts alleged in the Plaintiffs’ Complaint.

Subject Matter Jurisdiction

The Court reaches the same conclusion as this matter relates to subject matter

jurisdiction. Decisions issued by a court on the merits while lacking subject matter

jurisdiction leaves the decisions void ab initio. See Dillon v. Dillon, 187 P. 27 (Cal. App.

1919); in Re Application of Wyatt, 300 P. 132 (Cal. App. 1931). That is to say that, when

a court is not granted the authority, either by statute or other means, to hear a dispute, but

does so anyway, the ruling is without effect and unenforceable. Jd, Thus, a finding by

the Court that it lacks subject matter jurisdiction to hear a case presents a fatal blow to a

petitioning party’s complaint. The LTBBRCP that governs this issue is Rule XVI(6\1),

which states that a “party against whom a claim has been made may move the Court to

dismiss the claim of the adverse party” for “lack of jurisdiction over the subject matter.”

Turning to the Plaintiffs’ Complaint, the Court notes that the Plaintiffs are barred

by both LTBB and State law from either maintaining a private cause of action against the

Defendants to enforce the LTBB and State laws, treaty rights, and compacts cited in the

Complaint or barred from filing an action seeking enforcement of said agreements in an

5 The Court notes that Articles Second and Third of the Treaty of March 28, 1836, 7 Stat, 491, do not

appear to include lands presently part of the LTBB Reservation which are not included within the Treaty of

1855 reservation boundaries. :

LTBB court. More specifically, by their plain and explicit language:

. (1) WOTC 4.604(B), “Violations of Federal Law Based on Treaties,” states that

the “LTBB will take any appropriate and necessary action to prevent” “[a]ny

drilling, sale or diversion which has the potential for impacting the waters of

Lakes Michigan, Superior or Huron ceded by the 1836 Treaty of

Washington.” By stating that the “LTBB will take any appropriate action,”

the Code is clear that the only Tribe, and not individual Tribal Citizens or

Tribal corporations, may bring suit to enjoin parties from engaging in

“drilling” or “diversion” activities with the potential to impact the waters

ceded by the 1836 Treaty of Washington in violation of Tribal or Federal law.;

(2) WOTC 4,1110 authorizes only LTBB officers, and other tribal, state, or

‘ federal law enforcement agencies, as approved by Tribal Council, to bring suit

to enforce the LTBB Natural Resource Protection Code (individuals and

corporations are not authorized to bring suit to enforce the provisions of the

Cade).;

(3) MCL 324,1701, “Natural Resources and Environmental Protection Act,”

states that “[t]he attorney general or any person may maintain an action in the

circuit court having jurisdiction where the alleged violation occurred or is

likely to occur for declaratory and equitable relief against any person for the

protection of the air, water, and other natural resources and the public trust in

these resources from pollution, impairment, or destruction” (emphasis added).

While this section authorizes private parties to bring suit to enforce the

Michigan Natural Resources and Environmental Protection Act, the section is

clear that such actions may only be brought in an appropriate Michigan

circuit court. As the court of general jurisdiction for the Little Traverse Bay

Bands of Odawa Indians, a sovereign, dependent nation with a government-togovernment relationship with the United States distinct and separate from

state political entities, this Court, or any LTBB court for that matter, is clearly

not a Michigan circuit court. Accordingly, MCL 324.1701 neither grants the

Defendants standing to bring suit to enforce the Natural Resources and

Environmental Protection Act in this Court nor authorizes the Court to hear

such a claim.;

(4) Section 600(4) of the Great Lakes—St. Lawrence River Basin Sustainable

Water Resources Agreement of 2005, which states that a “[p]erson who is not

a [patty to this Agreement may not seek dispute resolution under this

Agreement,” authorizes only parties to the Agreement to seek enforcement of

the Agreement. The Great Lakes—-St. Lawrence River Basin Sustainable

Water Resources Agreement of 2005, which is an agreement between and

among several states, clearly excludes the Plaintiffs, as non-parties to the

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agreement, from filing suit to enforce its terms.; and

(5) The Intergovernmental Water Accord of 2004’s operative clause states that

“the Governor and the undersigned Tribes affirm their joint commitment to

the preservation, restoration and enhancement of the Great Lakes ecosystem

and pledge to work together to clean-up the pollutants now present...” The

language in this clause is merely a pledge between the State of Michigan and

the several federally-recognized tribes in Michigan to take certain actions and

does not create a private right of action to enforce a failure to faithfully adhere

to the pledge.

As is clear from a plain reading of the aforementioned texts, the Plaintiffs do not have

and cannot maintain a private cause of action against the Defendants in this matter’ The

aforementioned texts are, thus, inapplicable, which leaves the Plaintiffs with no statutory

or other legitimate basis to support their motion for immediate injunctive relief against

the named Defendants. Accordingly, the Court must dismiss the motion for a lack of

subject matter jurisdiction.

Tribal Jurisdiction over Nonmembers under Federal Law

Because this matter can be adjudicated without interpreting Federal case law on

the constitutional limits of tribal jurisdiction over non-Indians, and the Plaintiff's do not

contend that any Federal law—other than the Treaty of 1836, which this Court has

already determined does not authorize private rights of action—on the subject compels or

otherwise authorizes this Court to assert jurisdiction over the Defendants in contravention

of the LTBB Constitution, the Court declines to address the Federal law issues.

C. Conclusion

In light of the above findings, the Court GRANTS the Defendants’ Motion to

Dismiss and DISMISSES the Plaintiffs’ Complaint. Additionally, as the Court has

granted the Defendants’ Motion to Dismiss, the Defendants’ Motion to Extend Deadlines

is moot and the Plaintiffs are free to file an appeal in accordance with the LTBB Court

Rules.

6 The Court additionally notes that the 1836 Treaty of Washington, as an agreement between the

governments of the U.S. and the Odawa and Chippewa nations, does not grant the Plaintiffs in this case a

private right of action under these circumstances, Indeed, with the exception of some grants made to

individual members of the Odawa and Chippewa nations, which are not at issue here, the Treaty is an

agreement between sovereigns, not private parties; for the purposes of this action, the Treaty places

obligations on governments, which private parties may not enforce absent explicit language and

authorization otherwise. See Treaty with the Ottawa, Mar. 28, 1836, 7 Stat. 491; US. v. Michigan, No.

M26-73 C.A. (WD. Mich. 1979) (nothing that the fishing rights “reserved by the [Odawa and Chippewa

Indians] in 1836 . . . is the communal property of the tribes . . . it does not belong to individual tribal

members”). The Court, thus, catmot create an implied private right of action for the Plaintiffs under the

Treaty—and the Treaty does not create an explicit right of action—for an agreement made between

soversigns, though such a right of action undoubtedly exists with the successors in interest to the Odawa

and Chippewa nations that were signatories to the Treaty.

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IT IS SO ORDERED

le

Date Allie Greenleaf Maldonado, LTBB Chief Judge

CERTIFICATE OF MAILING

I certify that on this date copies of this Order were served to the parties by First-Class

and/or Internal Mail. VAS

March le IIS O )

Date 9 Court Officer an