Department of the Interior OFFICE OF THE SOLICITOR Northeast Region 5600 American Blvd. West, Suite 270 Bloomington, MN 55437

IN REPLY REFER TO AUG 1 3 2020 Memorandum

To: Tammie Poitra, Regional Director Bureau of Indian Affairs, Midwest Regional Office

Through: Kyle Scherer, Deputy Solicitor forIndian Affairs

Digitally signed by ERIC Eric Shepard, Associate Solicitor, Division of Indian Affairs ERIC SHEPARD Date: 2020.08.13 22'31 :40 SHEPARD -04'00' John Hay, Assistant Solicitor, Branch of Environment and Lands, JOHN Digitally signed by Division of Indian Affairs JOHN HAY Date: 2020.08.13 HAY 16:08:45 -04'00' From: Kallie Jacobson, Attorney-Advisor, Digitally signed by KALLIE KALLIE JACOBSON 2 3 Northeast Regional Solicitor's Office JACOBSON �;��,�� ��.�.

Subject: Federal Jurisdiction Status of the Little River Band of Indians in 1934

This memorandum addresses the authority of the Secretary of the Interior ("Secretary") to accept land into trust for the benefit of the Little River Band of Ottawa Indians, ("") and reviews the effect of the Bands of Odawa Indians and the Little River Band of Ottawa Indians Act ("Recognition Act") 1 on the Tribe's proposed fee-to-trust transfer.

Section 5 of the Indian Reorganization Act ("IRA" or "Act") authorizes the Secretary to acquire lands in trust for"Indians." 2 Section 19 of the IRA defines those "Indians" eligible for the Act's benefits.3 The United States Supreme Court ("Supreme Court") decision in Carcieri v. Salazar, 4 addressed the Secretary's authority to take land into trust pursuant to Section 19's firstdefinition of "Indian" ("Category 1 ") and held that the word "now" in the phrase "persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction" refers to the time of the passage of the IRA in 1934. The Carcieri majority also acknowledged that for some tribes, Congress expanded the Secretary's authority to accept land into trust through legislation, irrespective of whether the tribe would otherwise meet the IRA's definitionsof lndian. 5

1 Pub. L. No. 103-324, 108 Stat. 2156 (1994). As the Recognition Act applies to both the Tribe and the Little Traverse Bay Bands ofOdawa Indians, the conclusions of this memorandum should informany analysis undertaken in connection with land-into-trust applications submitted by the Little Traverse Bay Bands of Odawa Indians. 2 Act of June 18, 1934, § 5, Pub. L. No. 73-383, 48 Stat. 984 (1934), codifiedat 25 U.S.C. § 5108. 3 25 u.s.c. § 5129. 4 Carcieri v. Salazar, 555 U.S. 379 (2009) (hereafter"Carcieri"). 5 Carcieri at 392. As set forth below, wc have dctermincd that scctions 4(a) and 6(c) of the Recognition Act explicitly extends the Secretary's land-acquisition authority contained in Section 5 ofthe IRA to the Tribe. Bccausc the Recognition Act indepcndently and exprcssly authorizes thc sccrctary to exercise such authority, it is unnecessary lor us to determine whether the Tribe was under federal jurisdiction in I934.

I BACKGROUND

A. The Tribe's Pending Fee-to-Trust Application

On February 20,2015, the Tribe submitted an application to the Bureau oflndian Affairs requcsting that thc Sccretary acquire a parcel ofapproximately 60 acres in Muskegon County, Michigan in trust for the Tribe's benefit ("Application"). The Tribe submitted its Application pursuant to Section 5 of the IRA and its implementing rcgulations.6

B. History of the Little River Band of Ottawa Indians, Michigan

The Tribe is a federally recognized tribe that has resided in an area close to its ancestral homeland, now known as Manistee and Mason Counties, Michigan, since at least 18j6.7 The Tribe consists of over 4,000 members who descend primarily lrom the Odawa (Ottawa) and Ojibwa (Chippewa) ofthe northem Lower Peninsula and easrcm Upper Peninsula of Michigan.s During the treaty era, despite known differences among the various bands in northem Michigan, the United States treaty commissioners insisted on negotiating with them collectively as the "Ottawa and Chippewa Tribe."e As such, the Tribe is considered a descendent and political successor to thc Ottawa and Chippewa Tribc.l0

In 1836, the United States and the bands ofthe Ottawa and Chippewa Tribe entered into the 1836 Treaty of Washington ("1836 Treaty") which ceded to the United States a large portion ofland in I I the territory that would become the State of Michigan. Because of uncertainty regarding the reservation boundaries ofthe 1836 Trcaty, the bands ofthc Ottawa and Chippcwa Tribc cntered negotiations for a second treaty.l:

The 1855 Treaty of ("1855 Treaty") more specifically defined the location ofthe lands sct aside in thc 1836 Treaty and outlined a process for selection ofindividual Indian allotments.rl Article 5 ofthe 1855 Treaty expressly dissolved the "tribal organization of said Ottawa and

6 25 C.F.R, Pan l5 t. 7 See Recognition Act at $ 2(4). 3 .tee H.R. REp. No. 103-621, at2 (tuly 25, 1994)j Application at 4. e Grant Traverse Band of Ottawa and Chippewa lndians v. Office ofthe United States Attomey for the Western District oJ Michigan, 369 F.3d 960, 961 n.2 (6th Cir. 2OM)(finding that "Hcnry Schoolcraft, who negotiated the 1836 Treaty of Washington on bchalfofthe United Shtes, combined thc Ottawa and Chippewa nations into ajoint political unit solely for purposes offacilitating the negotiations ofthat treaty"). r0 7 Stat. 491 (March 28, 1836); I I Stat. 621 (July 31, 1855); see Recognitioo Acr at g (2)(1). I' 1836 Treaty. Art. l. t2 See,(Jnited States v. Michigan,4Tl F. Supp. 192,231 (W.D. Mich. 1979) (noring that "[r]he precise boundary of the cession was not known in 1836 becausc most ofthe land area was uninhabited and had not been thoroughly explored"). tr 1855 Trcaty, Art. V.

2 Chippewa Indians."ra Although intended to apply only to the entity created by the United States for the sole purpose oftreaty negotiations, the Department later misconstrued the provision to mean the individual bands' relationship with the federal government had bcen terminated.rs This confused reading was subsequently examined and clarified in 1979 by a federal district court in United States v. Michigan, finding that "the [t]crmination of this entity, not the termination ofthe Ottawa and Chippewa tribes or bands, was all that was accomplished by [Article 5]. '6

Though administrative actions prior to review ofthe record in federal court were inconsistent. federal agents who visited the Tribe in the 1930s, including the commissioner ol Indian Affairs, "attested to the continucd social and political cxistencc of the Tribe and concludcd that it was eligible for reorganization."l? Nonetheless, the Tribe's request to otganize under the IRA inl935 rs was denied, due in part to a lack of federal appropriations. In spite ofsuch dcnial, howcver, the Tribe maintained its political and social influence.re ln 1994, Congress enacted the Recogaition Act to reaffrrm and clariry the relationship ofthe federal government and the Tribe. Among other things, the Recognition Act expressly extended all provisions of the IRA to the Tribe and its members. The following year, the Tribe was included on the Secretary's 1995 Federal Register list of recognized tribes.20

II. STANDARD OF REVIEW

The first definition of"lndian" applies to "all persons oflndian descent who are members ofany rccognized Indian tribc now under Federal jurisdiction."2r To guide the Dcpartmcnt in implementing the Secretary's trust-acquisition authority after Ca rcieri, the Solicitor issued a four-step procedurc ("Solicitor's Guidancc") for usc by attomeys in thc Office ofthe Solicitor ("Solicitor's Office") to determine eligibility under Category 1.22 At Step One, the Solicitor,s O{Iilce must a-ssess whether Congress made the IRA applicable to the applicant tribe through separate statutory authority. Existence ofsuch authority makes it unnecessary to determine if the tribe was "under federal jurisdiction" in 1934. Only in the absence ofsuch authority does the analysis proceed to Stcp Two.

Section 5 of the IRA authorizes the Sccrctary, in his discretion, to acquirc "any intcrcst in lands, water rights, or surface rights to lands (...) for the purpose ofproviding lands for Indians."23 It *[t]itlc furthcr provides that to any lands or rights acquired pursuant to this Act (...) shall be takcn in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired."

t4 ld. 15 Letter fiom Secretary ofthe lnterior, C. Delano (Mar. 27, 1872). t6 (Jnited States v. Michigan,4Tl F. Supp. at 278. 17 See Recognition Act at $ (2X5). t8 td. /d. (2X6). " at S 20 60 Fed. Reg. 9250 (Feb. 16, 1995). ,r 25 u_s.c. $ 5129. 22 Procedure for Determining Eligibility for Land-inlo-Trust under the First Defnitio,t ol ''lndian" in Section l9 of the Indiqt Reorganization Act, Memordndwlrom the Solici,or ro Regional Solicitors, Field Solicitors, and SOL- Division oflndian Affairs (Mar. 9, 2020) (hereafter "Solicitor's Guidance"). ,r 25 u.s.c. $ 5108. l As noted above, the dccision in Carcieri spccifically addrcssed thc Secretary's authority to take land into trust under the category 1 definition of "lndian."2a Based on the facts ofthe case, the Supreme Court did not address the Secretary's authority to take land into trust for groups that fall under Section I 9's other definitions of "lndian," or for groups subject to separate legislation authorizing the Dcpartment to apply the IRA or otherwise take land into trust for a tribe,s benefit.

The Supreme court concluded that the term "now" in the phrase "all persons oflndian descent who are members of any recognized Indian tribe now under Federal jurisdiction" unambiguously refers to tribes that were under federal jurisdiction in 1934 at the time of the IRA's passage.25 ln reaching this result, the Supreme court rejected several arguments by the united states that the tcrm "now" as uscd in Scction l9 was ambiguous. As relevant here, the Suprcme Coun rejected the claim that the phrase "shall include" in section t 9's introductory clause left an interpretive gap for the agcncy to fill, concluding instcad that Congress had "explicitly and comprehensively defined the term by including only three discrete definitions" of"Indian."26 In support of its reasoning, the Supreme Court in footnote six of its decision listed examples ofsubsequent statutes in which Congress expanded the Secretary's IRA authority "to particular tndian tribes not necessarily encompassed" within the definitions ofsection 19.27 Had congress understood Section l9's use of"include" to encompass tribes falling outside Section l9's three definitions "Congress would not have needed to enact these additional statutory references to specific t nDes- --

Relying on the majority's reasoning and thc statutory examples it cites, thc Solicitor,s Office subsequently issued six opinions identifuing six other statutes in which Congress expanded the Secretary's authority to take land into trust under the IRA to particular tribes that might not necessarily be encompassed by Section l9's definition of"lndian.":e After examining the terms ofleach statute, the Solicitor's Offrce concluded thar they each made the IRA applicable to the

ra Scction 19 ofthe IRA dcllnes those "Indians" eligible lor Scction 5 IRA benefits as: [l ] all persons of lndian descent who are membcrs ofany rccognized Indian tribc now under Fcderal jurisdiction, and [2] all persons who are descendants ofsuch members who were, on Junc l, 1934, rcsiding within the present boundarics ofany , and shall further include [3] all other persons ofone-halfor more Indian blood. 25 U.S.C. $ 5129 (bracketed numbers added). 25 Carcien,555 U.S. at 395. t6 Id. at 39l. )1 Id. at392 i.6. 18 Id. at392. 2e U.S. Dept. ofthe Intcrior, Office ofthe Field Solicitor, Memorandum to BIA Westcm Reg. Dir. (May 15,2009) (Tonto-Apache Tribc, Pub. L. 92-470 (Oct. 6, 1972), 86 Star. 783) [Tonto Apache Op.]; Lerjcr, BtA Westem Reg. Dir. to Chairman, Pascua Yaqui Tribe ofArizona (Mar.26,2014) (Pascua Yaqui Tribc, Pub. L.95 375, g I (Scpt. I8, 1978), 92 Stat. 712) [Pascua Yaqui Op.]; Office of thc Solicitor, Memorandum to BIA Eastcm Reg. Dir. (Jan. 19,2017) (Mashantucket Pcquot Indian Claims Settlement Act, Pub. L.98 134, g 9 (Oct. 18, 1983),97 Stat. 855) [Pascua Yaqui Op,]; Officc ofthe Solicitor, Pac. Northwest Reg. to BIA Northwest Rcg. Dir. (Dec. 22,2016) (Coquille gl) Restoration Act, Pub. L. 101 42, S 3 (June 28, 1989), 103 Star. [Coquilte Op.]; Office ofthe Soliciror, Pac. Northwest Reg. to BIA Norrhwest Reg. Dir. (Jan. t 2, 20 | 7) (cow creek Band ofUmpqua Tribc of Indians Restoration Act, Pub. L. 97 391, $ 3 (Dec.29, 1982),96 Srat. 1960, as amended, pub. L. 100 139, S5 (b) (Ocr.26, 1987), l0l Stat. 827) [Cow Creek Op-]; and Office ofthc Solicitor, Knoxville Field Office to BIA Eastem Regional Dir. (July 30,2016) (Coushatta Tribe of Louisiana, Pub. L. 100-41 I (Aug- 22, 1988), l02 Srat 1097) lcoushatta op.l.

4 particular tribe or tribes for which the statute was enacted.r0 Accordingty, the Solicitor's office concluded that congress rendered the question of whether such tribes were "under federal jurisdiction" immatcrial. wc concludc that the tcrms of the Recognition Act require us to reach the same result here.

III. ANALYSIS

The Tribe's Recognition Act was not one of the statutes that the Supreme courr in Carcieri specifically cited as demonstrating congress's extension ofthe IRA to certain tribes. However, the language in thc scctions 4(a) and 6(c) ofthe Recognition Acr establishing that "[a]ll laws and regulations ofthe united states ofgeneral application to Indians or nations, tribes or bands of Indians, including thc IlRA] (...) shall bc applicable to rhe Bands and its members,'rr and that "[t]he Secretary may accept any additional acreage in each ofthe Bands' service area (...) pursuant to his authority undcr the [IRe]":z is analogous to the statutes cited by the Carcieri majority,rr as well as those later assessed by the Sotiiitor's office as having extended the IRA to particular tribes.l{

The plain language of the Recognition Act demonstrates that congress chose to extend the Secretary's trust acquisition authority under the IRA to the Tribe without regard to whether the Tribe is encompassed in the definition of"lndian" in Section 19 ofthe IRA. This plain language is consistent with thc purpose ofthc Recognition Act, which contained a finding that federal officials within the Office of Indian Affairs found the Tribe eligible for reorganization under the IRA around the timc ofthc Act's passagc.3s Therefore, it is not necessary to maks a determination as to whether the Tribe was "under federal jurisdiction" in 1934 or whether the Tribe mcets anothcr definition of"Indian" as would otherwise be rcquired under the Carcieri decision. The Sections 4(a) and 6(c) ofthe Recognition Act has explicitly made the IRA, including the section providing authority to take land into trust, applicable to the Tribe.

Because application ofthe IRA to the Tribe is expressly limited under the Recognition Act only to the extent it is inconsistent with the Recognition Act's specific provisions, it is ncccssary to determine ifany other sections ofthe Recognition Act restrict or curtail the applicability of Soction 5 ofthe IRA. Scction 6 ofthe Recognition Act provides that the Sccretary "shall acquirc

r0 Mashantucket Pcquot op. (tRA applied to Tribc as a law ofgeneral application undcr the Act); cow creek op. (Act applied IRA generally and no language in the Act specifically restricted the application ofsection 5); Louisiana Coushatta Op. (Act applied IRA generally and no languagc in the Act specifically restricted the application of Section 5); Coquille Op. (Act specifically made IRA applicable to the Tribe and its membeni); Pascua Yaqui Op. (Act specifically madc IRA applicablt'to the Tribe and its members): Ysleta del Sur Op- (Acr applied IRA gencrally and no language in thc Act specifically restricted thc applicatioD ofSection 5); Tonto Apachc Op. (Act spccifically rcfereoced "25 U. S.C. 461 - 479" which was inclusive of $ 465, being Section 5 of the tRA). rr Rccognition Acr at t! 4(a). r? /d. ar g 6(c). 11 Carcieri at 392 n.6 (citing Act of May l, 1936, ch. 254, 49 Stat. 1250 (exrending IRA to Territory ofAlaska); Shawncc Tribe Status Act of 2000, Pub. L. 10G568, Titte \rll,9 7Oj (Dec.27,2000), I 14 Stat. 2913; Tcxas Band of Kickapoo Act, Pub. L. 97-429, s 5 (Jan. 8, 1983), 96 srar. 2270); yslera dcl Sur pueblo and Alabama coushatta Indian Tribes ofTexas Restorarion Acr, Pub. L. 100 89, title I, g 103 (Aug. 18, 1987), 101 Srat.667). )a See e.g.. Ysleta del Sur Op. (Act applied IRA generally and no language in the Actspecifically restricted thc application of Section 5). r5 Rccognition Act a{ { 2(5).

5 real property in Manistee and Mason counties for the benefiI of the Little River Band.16 Section 6 also states that "The Secretary may accepr any additional acreage in each of the Bands' service area (...) pursuant to his authority undcr the IlRA]." Thc Tribe's service area is then defincd at Section 4(b)(2):

For purposes ofthe delivery ofFederal services to enrolled members ofthe Little River Band of Ottawa Indians, the Counties of Manistee, Mason, Wexford and Lake, in the State of Michigan, shall be deemed to be within or near a reservarion, notwithstanding the establishment of a reservation for the tribe after the date of the enactment of this Act. Scrvices may bc provided to members outside the named Counties unless prohibited by law or program regulations.3T

We find the discretionary authority to acquire land in trust is not limited to these named Counties. A narrow reading ofthe Recognition Act would be contrary to the statutory languagc and the broad extension ofthe Secretary's general authority to take lands into trust for the Tribe under Section 5 of the IRA. while the Recognition Act's explicit authority for the secretary to acquire lands for the Tribe's benefit pursuant to the IRA refers to the Tribe's "service area," the Recognition Act also provides that "services may be provided to members outside ofthe named Counties unless prohibited by law or program regulations."ss

Hcrc, thc casc of Conn. ex. rel. Blumenthalre is instructive to our analysis. In this mattcr, the United States Court ofAppeals for the Second Circuit ("Second Circuit") was required to dcterminc whether thc connecticut Indian Land claims Settlcment Act ("connecticut Act") prohibited the Secretary from using his authority granted in the IRA from taking land outside an arca dcsignated by the statute into trust on for thc Mashantucket pequot Tribe oflndians.a0 Similar to the Recognition Act, the connecticut Act expressly authorized the secretary to accept into trust certain land located within a designated area, but was silent regarding the Secretary,s general authonty to take land into trust outside that designated area. The Second Circuit held that this statutory silence effectively authorized the secretary to take such lands into trust, finding that "[n]othing in [the Connecticur Act] supplants thc Sccretary's power under the IRA to takc into trust lands" outside the designated area.al

Similar to the Connecticut Act, nothing in the Recognition Act expressly limits the Secretary,s power under the IRA to accept land that is located outside thc counties of Manistee, Mason, Lake, and Wexford into trust for the Tribe. And without such a limitation, the Solicitor,s Office cannot find that Congress intended to restrict the Secretary's land acquisition authority under the IRA. The purpose of the Recognition Act was to reestablish the federal trust relationship

16 We note that ifthc Tribe submits an application for trust lands under Section 6(b) ofthe Recognition Act, the Bureau oflndian Affairs should consult the Solicitor's Offica to rcquest a wdtten determination that the statutc mandatcs the Secrctary acquire thc lands in trust, consistent with the Department's guidance goveming thc review of mandatory acquisitiorls. see Fee-to-Tri$t Handbook at 3l-38' Memorandum fiom Larry Echo Hawk, Assistant Secrctary Indian Affairs, to Regional Dircctors and Supcrintendents, Bureau oflndian Affair" (April 6,2012), in Fee-To-Trust Handbook at 56 60. r7 Recognition Act at 6 4(bX2XB). 38 Id. 1e Conn. Ex. Rel. Blumenthal v. Lr.S. Dep't. of the Interior, 228 F.3d 82 (2nd Cir- 2000), cert. denied, 532 U.S. 1007 (2001). 40 Id. 41 1d ar 88

6 between the United States and the Tribe, including provisions to facilitate fee-to-trust land transfers. By including a provision expressly making the IRA applicable to the Tribe, Congress brought the Tribe within the ambit of the IRA in its entirety, including Section 5. To hold otherwise would be inconsistent with the plain meaning of the Recognition Act, and deny the Tribc "the capstonc ofthe land-related provisions ofthe IRA."a2

By enacting the Recognition Act, Congress provided authority for the acquisition of land in trust for the Tribe. No further analysis is required in order to find that the secretary has authority to take land into trust for the Tribe.a3

IV. CONCLUSION

Through the Recognition Act, Congress intended to broadly extend the benefits ofthe ILA to the Tribe. The provisions at Section 6 ofthe Recognition Act dctailing the Secretary,s mandatory and discretionary authority to accept land in trust for the Tribe do not conflict or limit in any way the generally applicable provisions ofthe iRA which otherwise authorize the Secretary to accept trust lands outside the Tribe's service area. Accordingly, the Solicitor's office concludes that the Tribe satisfies step 1 ofthe Solicitor's Guidance, and that the secretary possesses the statutory authority to accept land in trust on behalfofthe Tnbe.

a2 CoHEN's HANDBoOK oF FEDSRAL INDIAN LAw g 15.Oj (2\lj\. ar This memorandum reflects thc conclusions of the Solicitor's Officc without application ofthc Indian canon of statutory construction, which states that "statutes are to be construed liberally in favor ofthe lndians. with ambiguous provisions irterpreted to their berlertt-" Montana v. Blackfeet Tribe,41l u.s. 759,766 (19g5). should a federal court decide that application ofthe Indian canon is appropriate in interpreting the Recognition Act, the conclusions reachcd by this mcmorandum are only st-cngthened.

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