No. 19-2070 in the UNITED STATES COURT of APPEALS for the SIXTH CIRCUIT LITTLE TRAVERSE BAY BANDS of ODAWA INDIANS, Plaintiff

Case: 19-2070 Document: 69 Filed: 05/20/2020 Page: 1

No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

TOWNSHIP OF BEAR CREEK; TOWNSHIP OF BLISS; TOWNSHIP OF CENTER; TOWNSHIP OF CROSS VILLAGE; TOWNSHIP OF FRIENDSHIP; TOWNSHIP OF LITTLE TRAVERSE; TOWNSHIP OF PLEASANTVIEW; TOWNSHIP OF READMOND; TOWNSHIP OF RESORT; TOWNSHIP OF WEST TRAVERSE; EMMET COUNTY LAKE SHORE ASSOCIATION; THE PROTECTION OF RIGHTS ALLIANCE; CITY OF CHARLEVOIX; TOWNSHIP OF CHARLEVOIX,

Intervenors - Appellees.

Appeal from the United States District Court Western District of Michigan, Southern Division Honorable Paul L. Maloney

BRIEF OF INTERVENORS – APPELLEES TOWNSHIP OF BEAR CREEK, TOWNSHIP OF BLISS, TOWNSHIP OF CENTER, TOWNSHIP OF CROSS VILLAGE, TOWNSHIP OF FRIENDSHIP, TOWNSHIP OF LITTLE TRAVERSE, TOWNSHIP OF PLEASANTVIEW, TOWNSHIP OF READMOND, TOWNSHIP OF RESORT, AND TOWNSHIP OF WEST TRAVERSE

ORAL ARGUMENT REQUESTED Case: 19-2070 Document: 69 Filed: 05/20/2020 Page: 2

Submitted by:

Thaddeus E. Morgan (P47394) Fraser Trebilcock Davis & Dunlap, P.C. Attorneys for the Intervenors – Appellees Township of Bear Creek, Township of Bliss, Township of Center, Township of Cross Village, Township of Friendship, Township of Little Traverse, Township of Pleasantview, Township of Readmond, Township of Resort, and Township of West Traverse 124 W. Allegan Street, Suite 1000 Lansing, Michigan 48933 (517) 482-5800

Case: 19-2070 Document: 69 Filed: 05/20/2020 Page: 3

No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Bear Creek makes the following disclosure: (Name of Party) 1. Is said party a subsidiary or affiliate of a publicly owned corporation? No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No. /s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Bliss makes the following disclosure: (Name of Party) 1. Is said party a subsidiary or affiliate of a publicly owned corporation? No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No. /s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Center makes the following disclosure: (Name of Party) 1. Is said party a subsidiary or affiliate of a publicly owned corporation? No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

/s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Cross Village makes the following disclosure: (Name of Party) 1. Is said party a subsidiary or affiliate of a publicly owned corporation? No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

/s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Friendship makes the following disclosure: (Name of Party)

1. Is said party a subsidiary or affiliate of a publicly owned corporation? No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

/s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Little Traverse makes the following disclosure: (Name of Party)

1. Is said party a subsidiary or affiliate of a publicly owned corporation? No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

/s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Pleasantview makes the following disclosure: (Name of Party)

1. Is said party a subsidiary or affiliate of a publicly owned corporation? No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

/s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Readmond makes the following disclosure: (Name of Party)

1. Is said party a subsidiary or affiliate of a publicly owned corporation? No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

/s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of Resort makes the following disclosure: (Name of Party)

1. Is said party a subsidiary or affiliate of a publicly owned corporation? No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

/s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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No. 19-2070

In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS,

Plaintiff - Appellant Cross-Appellee, v.

GOVERNOR GRETCHEN WHITMER, Governor of the State of Michigan,

Defendant - Appellee,

CITY OF PETOSKEY; CITY OF HARBOR SPRINGS; EMMET COUNTY, MI; CHARLEVOIX COUNTY, MI,

Intervenors - Appellees Cross-Appellants,

Intervenors - Appellees.

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Township of West Traverse makes the following disclosure: (Name of Party)

1. Is said party a subsidiary or affiliate of a publicly owned corporation? No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

/s/ Thaddeus E. Morgan 5/20/2020 (Signature of Counsel) Thaddeus E. Morgan (Date)

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TABLE OF CONTENTS Page

Disclosure Of Corporate Affiliations And Financial Interest ...... i

Table of Authorities ...... xiii

Statement in Support of Oral Argument ...... xvi

Jurisdictional Statement ...... 1

Statement of Issue Presented ...... 2

Introduction ...... 3

Summary of the Argument ...... 3

Standard of Review ...... 5

Legal Standard ...... 5

Argument...... 6

I. The 1855 Treaty lacks the language used to create Indian reservations...... 6

A. Withdrawal language, on its own, does not create Indian reservations...... 7

B. Manypenny treaties used characteristic terms missing from the 1855 Treaty...... 9

C. The 1854 La Pointe Treaty and 1864 Saginaw Treaty do not support the Tribe’s claim that the 1855 Treaty created reservations...... 14

1. The 1854 La Pointe Treaty ...... 14

2. The 1864 Saginaw Treaty ...... 20

D. The language of other treaties shows that the Tribe’s proposed test is an effort at misdirection...... 24

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II. The Tribe does not present evidence of the Indian understanding of the 1855 Treaty...... 26

A. Federal Indian policy did not dictate that the 1855 Treaty create reservations...... 29

B. The post-treaty documents the Tribe cites shed little light on the Indian understanding of the treaty when it was negotiated in 1855...... 32

C. The Odawa and Ojibwe band leaders understood their agreement to obtain individual landownership in the 1855 Treaty...... 38

Conclusion and Relief Requested ...... 45

Certificate of Compliance ...... 47

Certificate of Service ...... 48

Designation of Relevant District Court Documents ...... 49

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TABLE OF AUTHORITIES Page

Cases Bullard v. Des Moines & Ft. Dodge R. Co., 122 U.S. 167 (1887) ...... 7

DeCoteau v. Dist. County Court for Tenth Judicial Dist., 420 U.S. 425 (1975) ...... 38

Estate of Romain v. City of Grosse Pointe Farms, 935 F.3d 485 (6th Cir. 2019) ...... 5

Hagen v. Utah, 510 U.S. 399 (1994) ...... 8

Henderson v. Walled Lake Consol. Sch., 469 F.3d 479 (6th Cir. 2006) ...... 5

Keweenaw Bay Indian Cmty. v. Naftaly, 452 F.3d 514 (6th Cir. 2006) ...... 14

Leavenworth, L. & G.R. Co. v. United States, 92 U.S. 733, 742 (1875) ...... 25

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ...... 5

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) . 6, 15, 19

Newhall v. Sanger, 92 U.S. 761 (1875) ...... 8

Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991) ...... 10

Oregon Dep’t of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985) ...... 6

S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735 (10th Cir. 2005) ...... 7

Saginaw Chippewa Indian Tribe v. Granholm, No. 05-10296-BC, 2010 WL 5185114 (E.D. Mich. Dec. 17, 2010) ...... 14

South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986) ...... 9

United States v. Grand Rapids & I.R. Co., 165 F. 297 (6th Cir. 1908) ...... 8, 9

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United States v. Midwest Oil Co., 236 U.S. 459 (1915) ...... 7, 8

Wisconsin Cent. R. Co. v. Forsythe, 159 U.S. 46 (1895) ...... 8, 9

Statutes 18 U.S.C. § 1151 ...... 3

Other Authorities Const, art. IV, § 3 ...... 8

Webster’s Dictionary, R.600-53 ...... 8

Rules 6th Cir. R. 26.1 ...... passim

Fed. R. App. P. 32(a)(5) ...... 47

Fed. R. App. P. 32(a)(6) ...... 47

Fed. R. App. P. 32(a)(7)(B)(i) ...... 47

Fed. R. App. P. 32(f) ...... 47

Fed. R. Civ. P. 56(a) ...... 5

Treatises Treaty of Detroit, 11 Stat. 621 (July 31, 1855) ...... passim

Treaty of La Pointe, 10 Stat. 1109, art. 2 (Sept. 30, 1854) ...... passim

Treaty of La Pointe, 7 Stat. 591, art. 1 (Oct. 4, 1842) ...... 14

Treaty of Washington, 7 Stat. 491, arts. 2 and 3 (Mar. 28, 1836) ...... 12, 25

Treaty with the Chippewa of Saginaw, Etc., 11 Stat. 633 (Aug. 2, 1855) ...... 20

Treaty with the Chippewa of Saginaw, Etc., 14 Stat. 657 (Oct. 18, 1864) ...... 4

Treaty with the Chippewa of Sault Ste. Marie, 11 Stat. 631 (Aug. 2, 1855)...... 20

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Treaty with the Chippewa, 10 Stat. 1165 (Feb. 2, 1855) ...... 11

Treaty with the Chocktaw and Chickasaw, 11 Stat. 611 (June 22, 1855) ...... 11

Treaty with the Omaha, 10 Stat. 1043 (March 16, 1854) ...... 10

Treaty with the Oto and Missouri, 10 Stat. 1038, art. I (March 15, 1854) ...... 9, 10

Treaty with the Sauk and Foxes of Missouri, 10 Stat. 1074 (May 18, 1854) ...... 9

Treaty with the Yakima, 12 Stat. 951 (June 9, 1855) ...... 10, 25

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STATEMENT IN SUPPORT OF ORAL ARGUMENT This case asks whether Article I, Paragraphs Third and Fourth of the Treaty of Detroit, 11 Stat. 621 (July 31, 1855) (1855 Treaty), as amended, created a permanent Indian reservation for the Plaintiff Little Traverse Bay Bands of Odawa

Indians’ (the Tribe’s) predecessors that must be treated as Indian country. The issues in this case and the history surrounding them are complex and involve an extensive documentary record. Oral argument will assist the Court in understanding the historical details and the applicable law, as well as the significant consequences that local units of government will face as a result of its decision.

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JURISDICTIONAL STATEMENT The Township of Bear Creek, Township of Bliss, Township of Center,

Township of Cross Village, Township of Friendship, Township of Little Traverse,

Township of Pleasantview, Township of Readmond, Township of Resort, and

Township of West Traverse (collectively, the Emmet County Townships) do not contest the Tribe’s jurisdictional statement.

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STATEMENT OF ISSUE PRESENTED

1. Did the district court correctly rule that the 1855 Treaty “cannot plausibly be read to have created an Indian reservation” for the Tribe’s predecessors?

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INTRODUCTION The Tribe claims that Article I, Paragraphs Third and Fourth of the 1855

Treaty, as amended, established a permanent Indian reservation that must be treated

as its Indian country under 18 U.S.C. § 1151. The Tribe has never presented any

coherent theory explaining why the language of the 1855 Treaty or the historical

evidence surrounding it demonstrate that the Odawa and Ojibwe bands that were

parties to the treaty understood it to create Indian reservations. This Court must

affirm the district court’s detailed and well-reasoned opinion because the Tribe did

not present evidence of a material question of fact that requires a trial or

demonstrates that it is entitled it to have judgment entered in its favor.

The Emmet County Townships concur in the Governor’s and other

Intervenors’ briefs on appeal, including in the cross-appeal. To minimize

duplication, the Emmet County Townships adopt the facts and arguments from those

briefs. This brief focuses more narrowly on issues that the Governor and other

Intervenors have not addressed or have touched on lightly.

SUMMARY OF THE ARGUMENT Withdrawing land from sale and reserving lands are distinct legal concepts.

In the mid-1800s, treaties used characteristic language to create Indian reservations.

Both the Treaty of La Pointe, 10 Stat. 1109, art. 2 (Sept. 30, 1854) (1854 La Pointe

Treaty), and the Treaty with the Chippewa of Saginaw, Etc., 14 Stat. 657 (Oct. 18,

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1864) (1864 Saginaw Treaty), used that language to establish Indian reservations in

Michigan. However, the 1855 Treaty lacks that characteristic language. The Court must give effect to the plain language in the 1855 Treaty that temporarily withdraws public lands from sale, but does not reserve those lands for the bands. The Tribe’s proposed reservation test – which no court has applied – focuses on withdrawing lands from sale as a distraction to draw attention away from the fact that the 1855

Treaty is missing the language that would have created Indian reservations.

The Tribe does not provide any analysis showing that the Odawa and Ojibwe band leaders who negotiated the 1855 Treaty understood it to create Indian reservations. It overlooks the evidence in the record leading up to and including the

Detroit treaty council in 1855, instead focusing on the federal Indian policy crafted by Americans. But federal Indian policy in the mid-1800s did not require all treaties

with tribes to provide an Indian reservation. Granting individual landownership

without creating Indian reservations was consistent with other goals of federal Indian

policy while George Manypenny was the Commissioner of Indian Affairs.

The Tribe also lists multiple documents written after the 1855 Treaty that

simply use the word reservation to refer to locations described in Article I. Most of

the documents are authored by non-Indians; only six were authored by Indians. The

Tribe does not analyze any of the documents. Providing little more than a list of

documents that use the word reservation cannot alter the clear and unopposed

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evidence that the band leaders who negotiated the 1855 Treaty understood it to make eligible band members landowners and not to create Indian reservations.

Further, the Tribe never provides any insight into its ancestors who negotiated the treaty. The record confirms that they had the capacity to understand the 1855

Treaty’s terms and did not understand it to create Indian reservations.

STANDARD OF REVIEW This Court reviews de novo the district court’s decision to grant summary

judgment to the Governor and Intervenors. Henderson v. Walled Lake Consol. Sch.,

469 F.3d 479, 486 (6th Cir. 2006).

LEGAL STANDARD Fed. R. Civ. P. 56(a) permits a district court to grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “A fact is material if it would establish or refute an essential element of a cause of action or defense asserted by the parties.” Estate of Romain v. City of Grosse Pointe Farms, 935 F.3d 485, 490

(6th Cir. 2019) (internal quotation omitted). A court reviews all evidence in the record in the light most favorable to the non-moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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ARGUMENT

I. The 1855 Treaty lacks the language used to create Indian reservations. By its plain language, Article I of the 1855 Treaty withdraws unsold public

lands from sale for a temporary period. (1855 Treaty, R.558-6, PageID##6893-

6895.) The Tribe’s theory is that the treaty implements mid-nineteenth-century

federal Indian policy that created Indian reservations. But the Tribe never analyzes

other treaties from that period that created reservations, including Michigan treaties

from 1854 and 1864, to put the 1855 Treaty’s language into historical context.

Analyzing those treaties demonstrates that the withdrawal language in the 1855

Treaty is not the language that would create Indian reservations.

To be clear, a comparative language analysis here does not use other treaties

with different indigenous people to demonstrate how these Ojibwe and Odawa bands

understood the 1855 Treaty. The defense has developed an extensive record of the

“history, purpose, and negotiations” of the 1855 Treaty to present the Indian

understanding of the treaty in accord with the Indian canons of construction.

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999).

Rather, analyzing other treaties is important to understanding and giving effect to the withdrawal language in the 1855 Treaty and to rebutting the Tribe’s argument that federal policy mandates that this be read as a reservation treaty. See

Oregon Dep’t of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774 (1985)

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(“courts cannot ignore plain language that, viewed in historical context and given a

‘fair appraisal,’ clearly runs counter to a tribe’s later claims”) (internal citations omitted). With this context in mind, it also becomes clear that the Tribe promotes an Indian reservation test that hinges largely on withdrawal language because there is no language in the 1855 Treaty that creates Indian reservations.

A. Withdrawal language, on its own, does not create Indian reservations. Withdrawing lands is not “synonymous” with reserving lands. S. Utah

Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 784-85 (10th Cir. 2005), as amended on denial of reh’g (Jan. 6, 2006); see also United States v. Midwest Oil

Co., 236 U.S. 459, 481 (1915) (distinguishing between withdrawals and reservations). Withdrawing land simply “exclude[s it] from sale, purchase, or pre- emption” under public land laws. Bullard v. Des Moines & Ft. Dodge R. Co., 122

U.S. 167, 171 (1887). A withdrawal is temporary and intended to maintain “the

status quo while Congress or the executive decides on the ultimate disposition of the

subject lands.” S. Utah, 425 F.3d at 784. “A reservation, on the other hand, goes a

step further: it not only withdraws the land from the operation of the public land

laws, but also dedicates the land to a particular public use.” Id.

Though this legal distinction between a withdrawal and a reservation is clear,

neither Congress nor the courts used the terms consistently in the nineteenth century.

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For instance, in Wisconsin Cent. R. Co. v. Forsythe, 159 U.S. 46, 54-55 (1895), the

Supreme Court used the word “reserved” to describe lands withdrawn from sale pursuant to a railroad land grant statute, but still concluded that the lands were within

Congress’s disposing power, i.e., the lands were in the public domain. See Newhall v. Sanger, 92 U.S. 761, 763 (1875) (“The words ‘public lands’ are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.”); see also Const, art. IV, § 3 (Congressional power over the public domain). Lands in the public domain are, by definition, not reserved. See Hagen v.

Utah, 510 U.S. 399, 413 (1994). Thus, despite the language the Forsythe Court used in discussing the case, the Supreme Court’s reasoning confirmed that the railroad land grant statute only effectuated a withdrawal, not a reservation.

Part of the confusion concerning the words reservation and withdrawal stems from the fact that the words have been used “interchangeably.” S. Utah, 425 F.3d at

784. (Webster’s Dictionary, R.600-53, PageID#10790.) Moreover, in cases that involve disputes over land title, reservations and withdrawals have the same legal effect; both actions make land unavailable for disposal under the public land laws, even if the withdrawal is only temporary and the reservation is an indefinite dedication to a public purpose. See Midwest Oil, 236 U.S. at 476; see also United

States v. Grand Rapids & I.R. Co., 165 F. 297, 302 (6th Cir. 1908) (land temporarily withdrawn from sale but excluded from the 1855 Treaty could not be lawfully

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conveyed under a railroad land grant statute until the treaty was proclaimed).

Imprecise usage readily explains why cases like Forsythe and Grand Rapids

substituted the word reserve for withdraw and still reached the correct conclusion

under the applicable precedent.

But this case is a dispute over jurisdiction, not land title, where the difference

between a temporary withdrawal and a permanent reservation is consequential. The

Tribe is not entitled to have this Court read the unambiguous withdrawal language

as if it were reservation language or ignore the plain meaning of the 1855 Treaty.

See South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 506 (1986) (Indian

canons of construction do not “permit reliance on ambiguities that do not exist”).

B. Manypenny treaties used characteristic terms missing from the 1855 Treaty. When George Manypenny was the Commissioner of Indian Affairs in the

1850s, many Indian treaties he negotiated or oversaw used a set of terms to create

Indian reservations. Some treaties excepted or saved and reserved land for tribes.

For instance, in the Treaty with the Oto and Missouri, 10 Stat. 1038, art. I (March

15, 1854), the tribes ceded their lands west of the Missouri River, “excepting a strip of land on the waters of the Big Blue River, ten miles in width and bounded as” described. Similarly, the Treaty with the Sauk and Foxes of Missouri, 10 Stat. 1074

(May 18, 1854), “sav[ed] and reserv[ed] fifty sections, of six hundred and forty acres

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each, which shall be selected in the western part of the cession by the delegates … which shall be located in one body and set off by metes and bounds.…” These terms illustrate how to keep Indian lands separate from the public domain to reserve them for a public use, in that case the collective tribe’s residence.

Other treaties used terms like set aside or set apart, again implying separation from the public domain. For example, Article 2 of the Treaty with the Yakima, 12

Stat. 951 (June 9, 1855), “reserved” lands from a land cession and stated that they

“shall be set apart and, so far as necessary, surveyed and marked out, for the exclusive use and benefit of said confederated tribes and bands of Indians, as an

Indian reservation….” The Supreme Court adopted this “set apart” terminology in its test for Indian country. See Oklahoma Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991) (test for Indian country requires lands to be (1) set apart, (2) for Indian purposes, and (3) subject to federal superintendence).

Treaties from this period also referred to Indian reservations as the permanent or future homes for tribes, or as lands guaranteed to tribes. See Treaty with the Oto and Missouri, 10 Stat. 1038, art. I (March 15, 1854) (describing alternate location that “shall be assigned by the United States to said Indians, for their future home” that would be “tract properly set off by durable monuments” if located outside of ceded lands); Treaty with the Omaha, 10 Stat. 1043 (March 16, 1854) (identifying

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land “reserved by the Omahas for their future home,” and repeatedly referring to that

“future home,” “new home,” and “permanent home”); Treaty with the Chocktaw and

Chickasaw, 11 Stat. 611 (June 22, 1855) (“[T]he United States do[es] hereby forever secure and guarantee the lands embraced within the said limits, to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to be held in common; so that each and every member of either tribe shall have an equal, undivided interest in the whole[.]”). All this language describes an abiding status for the lands, not merely a limited period, and their dedication to use by the collective members of the whole tribe, not just by individuals.

Some treaties combined these typical terms. For example, only months before the 1855 Treaty, Manypenny negotiated a land cession treaty with the Minnesota

Ojibwe that stated, “There shall be, and hereby is, reserved and set apart, a sufficient quantity of land for the permanent homes of the said Indians; the lands so reserved and set apart, to be in separate tracts, as follows….” Treaty with the Chippewa, 10

Stat. 1165 (Feb. 2, 1855) (emphasis added). The treaty identified a series of lands for the Mississippi bands, separately identifying three tracts “to be located and bounded” for the Pillager and Lake Winnibigoshish bands. Id. (emphasis added).

The treaty separately prescribed a process in which the President could have “the said reservation, or such portion or portions thereof as may be necessary, to be surveyed” in order to “assign” lands to eligible individuals, which could not be sold

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without the President’s agreement. Id. (emphasis added). Combining terms like reservation, set apart, located and bounded left no doubt that the treaty established reservations even though it established a process to allot those commonly held lands.

The language characteristic of the Manypenny treaties creating reservations is plainly missing from the 1855 Treaty, just as the land cession that was part of the bargain in these other treaties is also missing. Article I of the 1855 Treaty allows eligible band members to select and purchase land to own as individuals; it does not grant the bands the right to select or purchase any lands. The 1855 Treaty does not set apart or set aside land for the bands themselves to own, use, or govern. Nor does the 1855 Treaty provide lands to be held in common, the language used to establish reservations for these Odawa and Ojibwe bands in the Treaty of Washington, 7 Stat.

491, arts. 2 and 3 (Mar. 28, 1836) (1836 Treaty).

The 1855 Treaty also did not impose a permanent status on the lands withdrawn from sale unless a patent was issued to an individual, making Article I fundamentally different from the treaties that created a permanent residence for tribes. Under Article I, the United States expressly made the withdrawal temporary by retaining the right to sell or dispose of all lands that had been withdrawn, but were not selected or purchased within ten years. (1855 Treaty, R.558-6, PageID#6895.)

The 1855 Treaty did not require the band members who selected or purchased lands under Article I to keep those lands. The lands the band members selected were

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subject to a temporary restriction, and the lands they purchased under the 1855

Treaty were never subject to a restriction on alienation at all. The treaty left the lands withdrawn from sale as fee lands, subject to being retained or sold by their individual owners.

The obligation that the United States assumed under Article I was to withdraw the unsold public lands in the areas described from sale. There is no reference to the

United States excepting, saving, reserving, securing, or guarding the lands for the bands. Ongoing federal superintendence is plainly missing from the 1855 Treaty.

The Tribe attempts to make something of the way that Article I employs the phrases

“tracts reserved” and “aforesaid reservations” to refer back to the numbered paragraphs at the beginning of the article that were withdrawn from sale. However, other Manypenny treaties did not rest solely on a flimsy internal cross-reference to withdrawal language. The language creating reservations in those treaties is embedded in the United States’ essential obligation to the tribes in the treaty. Here, the United States’ obligation is only to withdraw land temporarily, not to set apart land for the bands permanently. That withdrawal language does not – on its own – create reservations. See S. Utah, 425 F.3d at 784-85.

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C. The 1854 La Pointe Treaty and 1864 Saginaw Treaty do not support the Tribe’s claim that the 1855 Treaty created reservations. The Tribe cites Saginaw Chippewa Indian Tribe v. Granholm, No. 05-10296-

BC, 2010 WL 5185114 (E.D. Mich. Dec. 17, 2010) and Keweenaw Bay Indian Cmty.

v. Naftaly, 452 F.3d 514 (6th Cir. 2006), Michigan cases involving the Isabella

Indian Reservation and the L’Anse Indian Reservation. But the Tribe never explains

the language in those cases that created Indian reservations. Looking at the text of

those treaties only confirms that the 1855 Treaty is missing language that would

have been used to create reservations in Michigan at the time.

1. The 1854 La Pointe Treaty In 1842, Ojibwe bands from Michigan, Wisconsin, and Minnesota entered

into the Treaty of La Pointe, 7 Stat. 591, art. 1 (Oct. 4, 1842) (1842 La Pointe Treaty),

which ceded an area roughly extending from Marquette, Michigan to Duluth,

Minnesota. (Royce Map, R.558-31, PageID#7266, Area 261.) See also Indian land

cessions in the United States, Charles C. Royce, Wisconsin Map 1, available at

(Area 261). The treaty allowed the President to order the bands removed from the ceded lands and designated unceded Indian lands in Minnesota for their relocation. See 1842 La

Pointe Treaty, arts. 3 and 6.

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In 1850, President James Tyler issued an executive order that federal officials viewed as a removal order for the bands that signed the 1842 La Pointe Treaty. See

Mille Lacs, 526 U.S. at 179. To force the bands to remove, the Indian agent for the bands moved annuity payments from La Pointe (on Madeline Island in Lake

Superior) to the unceded Indian lands at Sandy Lake, Minnesota, late in the year.

See id. at 180. Between cold, starvation, and disease, hundreds of Ojibwe did not survive the trek to Sandy Lake or their time there. See id.

The Sandy Lake tragedy spurred the Lake Superior Ojibwe band leaders to marshal non-Indian supporters and to seek to end the threat of removal under the

1842 La Pointe Treaty. See Mille Lacs, 526 U.S. at 180-81. For the Americans, though, minerals were the important issue. As Manypenny said, Ojibwe bands in

Michigan and Wisconsin continued to

occupy their former locations on lands ceded by the treaties of 1837 and 1842. It has not, thus far, been found necessary or practicable to remove them. They are very unwilling to relinquish their present residences, as are all the other bands of the same Indians; and it may be necessary to permit them all to remain, in order to acquire a cession of the large tract of country they still own east of the Mississippi, which on account of its great mineral resources, it is an object of material importance to obtain. They would require but small reservations; and thus permanently settled, the efforts made for their improvement will be rendered more effectual.

(1854 Annual Report of the Commissioner of Indian Affairs (ARCOIA), R.558-49,

PageID##7510-7511 (emphasis added).) Even with the valuable Minnesota iron

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ranges to acquire, the federal government was willing to create only “small reservations.” (Id.)

In 1854, the Lake Superior Ojibwe and Americans met again at La Pointe to negotiate a new treaty. See 1854 La Pointe Treaty, introduction. Gilbert, along with

David Herriman, negotiated the treaty on behalf of the United States. See 1854 La

Pointe Treaty, introduction. They used a combination of the terms that were characteristic of Indian reservation treaties at the time.

Unlike the 1855 Treaty, the 1854 La Pointe Treaty did not merely withhold land from sale for a ten-year period. Rather, it stated that the “United States agree[d] to set apart and withhold from sale” reservations in the Upper Peninsula and

Wisconsin. See 1854 La Pointe Treaty, art. 2 (emphasis added). The treaty also referred to: the “reserved tracts” and the “tracts herein set apart” (Article 3); the

“points herein set apart for the residence of the Indians” (Article 5); the “lands herein set apart for the residence of the Indians” (Article 7); and the “homes hereby set apart” for the bands (Article 11). (Id.) The textual differences between the 1854 La

Pointe Treaty and the 1855 Treaty are not subtle. The 1855 Treaty lacks any reference to setting apart lands.

There are other substantive differences between the 1854 La Pointe Treaty and the 1855 Treaty. Importantly, the 1854 La Pointe Treaty involved a substantial

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land cession by the Ojibwe bands to lands in Minnesota. See 1854 La Pointe Treaty,

art. 1. The 1855 Treaty ceded no lands.

Further, the 1854 La Pointe Treaty established a compact, bounded

reservation consisting of two full and three fractional survey townships for the

L’Anse and Lac Vieux Desert bands on the east side of the Keweenaw Peninsula in

the western Upper Peninsula. See 1854 La Pointe Treaty, art. 2, ¶ 1st. It allowed

the Ontonagon band to select only four sections of land on the lakeshore, the size of

about 1/9th of a single township. See id., art. 2, ¶ 6th. President Franklin Pierce ultimately declared a very small reservation for the Ontonagon band on the west side of the Keweenaw Peninsula measured by lots and fractional sections, not townships.

(Executive Orders, R.559-41, PageID#8356.)

The area described in Article I, Paragraphs Third and Fourth of the 1855

Treaty is immense compared to these two small Michigan reservations under the

1854 La Pointe Treaty. (1878 Map, R.558-28, PageID#7260; Compl. Map, R.1-1,

PageID#19.) Paragraphs Third and Fourth of Article I identify lands that consist of two islands in the Beaver Island archipelago plus an additional fifteen full and fractional townships. (1855 Treaty, R.558-6, PageID#6893.) If the 1854 La Pointe

Treaty is emblematic of the reservations the United States was willing to create for

Indians in Michigan, the 1855 Treaty was far too generous to fit that policy.

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The Tribe may point to the 1854 La Pointe Treaty because it included a provision that allowed the United States to convey land to individual band members.

See 1854 La Pointe Treaty, art. 3. But even that provision differs significantly from

Article I of the 1855 Treaty. Under the 1855 Treaty, eligible band members had an unconditional right to select and purchase land with only limited restrictions on alienation for the selected lands. (1855 Treaty, R.558-6, PageID#6894-6895.) The

1855 Treaty also guaranteed the band members’ rights to have their heirs inherit lands they selected or purchased. (Id., PageID#6895.)

The 1854 La Pointe Treaty was not as accommodating to band members as the 1855 Treaty. Article 3 of the 1854 La Pointe Treaty did not give band members a right to select or purchase lands at all. Rather, it gave the President the discretion to decide whether to “assign” land to band members, when patents would issue, whether the patents would include restrictions on alienation, and whether to make rules concerning inheritance and other matters. 1854 La Pointe Treaty, art. 3. The

1854 La Pointe Treaty also did not set a time to end this land process, allowing lands to be assigned to band members in the future (such as when they came of age) rather than opening excess lands to non-Indian settlement. Id. This was consistent with the federal government’s intent to permanently “set apart” the lands described in

Article 2, to require them to be used for Indian purposes indefinitely, and to have the

United States exercise ongoing superintendence over the land. That federal

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superintendence the land was also reinforced by provisions controlling the sale of liquor on the reservations, as well as the President’s continuing authority to adjust the “boundaries of such reserved tracts or otherwise, to prevent interference with any vested rights.” Id. at art. 3 and art. 7.

The fact that both of these Michigan treaties involved Manypenny and Gilbert, as well as treaty secretary Richard Smith and interpreters Louis Cadotte and John

Godfroy, within the span of a single year indicates that the 1855 Treaty intentionally omits operative language, like “set apart,” that was used to create reservations during that era. Manypenny and Gilbert knew how to express an intent to create Indian reservations, as they showed in the 1854 La Pointe Treaty. They could have included that language in the 1855 Treaty if the parties had agreed to establish Indian reservations. See Mille Lacs, 526 U.S. at 195 (Manypenny’s omission of usufructuary rights language in treaty was “telling because the United States treaty drafters had the sophistication and experience to use express language for the abrogation of treaty rights” and had used it recently in another treaty). But the 1855

Treaty only accomplishes what Article I says: it withdrew from sale unsold public lands for a limited period. Viewed against the language of the 1854 La Pointe

Treaty, the language of the 1855 Treaty plainly did not create Indian reservations.

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2. The 1864 Saginaw Treaty The 1855 Treaty was the first of three treaties Manypenny and Gilbert negotiated in little more than a week in Detroit. They negotiated a similar, but shorter, treaty with the Saginaw, Swan Creek, and Black River bands from the central Lower Peninsula. See Treaty with the Chippewa of Saginaw, Etc., 11 Stat.

633 (Aug. 2, 1855) (1855 Saginaw Treaty); see also Treaty with the Chippewa of

Sault Ste. Marie, 11 Stat. 631 (Aug. 2, 1855) (ceding right to fish at the Falls of St.

Mary’s and a fishing encampment under an 1820 treaty). In Article 1 of the 1855

Saginaw Treaty, the United States agreed to “withdraw from sale, for the benefit of said Indians … all the unsold public lands” within six survey townships in Isabella

County and near the Saginaw Bay. The 1855 Saginaw Treaty gave band members the right to select and purchase lands under the “same rules and regulations” in the

1855 Treaty and provided the same exclusive right to purchase lands for five years.

See 1855 Saginaw Treaty, art. 1.

By 1864, Indian agents had delivered “[m]ost of the land certificates” to the members of the Saginaw, Swan Creek, and Black River who had selected their individual lands under the 1855 Saginaw Treaty. (1864 ARCOIA, R.558-64,

PageID#7700-7701.) But certificates were not enough. Members of these bands and members of the Odawa and Ojibwe bands that were parties to the 1855 Treaty felt “that their title [was] not yet quite perfected and ask[ed] that their Great Father

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send them patents.” (Id., PageID#7701.) Michigan Indian Agent D.C. Leach

thought issuing patents was a bad idea. (Id.) In his view, “[v]ery few” of the band

members were “yet capable of managing their affairs properly, and if patents were

placed in their hands their lands would very soon be squandered, and they would

once more become homeless wanderers.” (Id.)

Leach proposed a new treaty with the Saginaw, Swan Creek, and Black River

bands, as well as a new treaty with the Odawa and Ojibwe bands that were parties

to the 1855 Treaty. (Leach to Dole, R.600-143, PageID#11308.) Commissioner of

Indian Affairs William Dole appointed H.J. Alvord as a special commissioner to

negotiate both treaties when making annuity payments in the fall of 1864. (Dole to

Alvord, R.600-95, PageID#10909.).

Alvord and Leach negotiated a new treaty with the Saginaw, Swan Creek, and

Black River bands in which the bands ceded their rights to lands on the Saginaw Bay

and gave up their right to make land selections under the 1855 Saginaw Treaty. See

1864 Saginaw Treaty, art. 1. In return, the United States “agree[d] to set apart for

the exclusive use, ownership, and occupancy of the said Chippewas of Saginaw,

Swan Creek, and Black River, all of the unsold lands within the six townships in

Isabella County, reserved to said Indians by the treaty of August 2, 1855[.]” Id.

(emphasis added). This was far more than an agreement to withhold unsold public land from sale temporarily so that individual band members would have first pick of

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them. The federal government gave the Saginaw, Swan Creek, and Black River bands rights to use, own, and occupy all the unsold lands in the six townships. With all the unsold lands set apart and permanently dedicated to Indian uses, the 1864

Saginaw Treaty did not provide for any of the unsold lands in those townships to be disposed of by the United States.

The 1864 Saginaw Treaty also provided a new land selection process for

Saginaw, Swan Creek, and Black River band members on the Isabella Indian

Reservation and did not allow the process under the 1855 Saginaw Treaty to continue. See 1864 Saginaw Treaty, art. 3. The treaty did not prescribe a date for the new land selection process to end. See id. It also allowed all band members (not just men) and those born after the treaty was signed to make land selections, indicating that the process would continue until there were no more lands to select.

See id.

Federal superintendence over the lands was also clear in the 1864 Saginaw

Treaty. The treaty did not require patents to issue immediately or within a specific period, which would have left them free of federal oversight. Nor did the treaty guarantee that patents would be issued to all band members. Only those band members the Indian agent deemed “competent” would receive patents in fee for their lands. See 1864 Saginaw Treaty, art. 3. Band members deemed “incompetent” would be subject to a patent with a restriction on alienation that would last until the

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Interior Secretary lifted the restriction, if ever. Id. The treaty also prescribed other

ongoing duties for federal officials, including oversight of a “manual-labor school

upon said reservation” and the administration of the proceeds from selling a sawmill,

if the bands chose to sell it. Id. at arts. 4 and 6.

In contrast, the 1855 Treaty did not involve a land cession, provide an

indefinite land selection process, or grant land rights to band members who came of

age or were born after the treaty became effective. Nor did the 1855 Treaty set apart

any lands, permanently dedicate lands to the exclusive use, ownership, or occupancy

of the Odawa and Ojibwe bands, or prescribe continuing federal obligations with

respect to Indian affairs on the ground. The absence of those features reflected the

temporary nature of the land selection process under the 1855 Treaty and the parties’

agreement that the United States could open the remaining lands to non-Indian

settlement. And once again, the amount of land described in Article I, Paragraphs

Third and Fourth was vastly larger than the small, bounded reservation that the 1864

Saginaw Treaty established. (1878 Map, R.558-28, PageID#7260; Compl. Map,

R.1-1, PageID#19.)

The 1864 Saginaw Treaty demonstrates exactly what is missing from the 1855

Treaty. Only a new treaty like the 1864 Saginaw Treaty could have created Indian reservations for the Odawa and Ojibwe bands that were parties to the 1855 Treaty.

President Abraham Lincoln temporarily withdrew lands for sale in anticipation of a

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new treaty with the Odawa and Ojibwe bands in 1864. (Executive Orders, R.559-

41, PageID##8355-8356.) But the Tribe’s political predecessors never entered another treaty with the United States after 1855. Accordingly, in 1874, President

Ulysses Grant canceled President Lincoln’s order and returned those lands to market.

(Executive Orders, R.559-41, PageID#8356; Notice of Restoration to Market,

R.560-4, PageID#8693.) Thus, unlike the modern-day Saginaw Chippewa Indian

Tribe of Michigan, which is a successor to the bands that were parties to the 1864

Saginaw Treaty, the Tribe does not have a treaty reservation today.

D. The language of other treaties shows that the Tribe’s proposed test is an effort at misdirection. The Tribe argues that, to decide this appeal, this Court need only examine the

1855 Treaty to determine whether it describes “(1) a defined body of land, (2) withheld from sale by the federal government, and (3) appropriated for Indian purposes.” (Br. 2.) The Tribe crafts a test that focuses on withdrawal rather than reservation language because it cannot meet the Supreme Court’s Indian country test to show that it has the reservation it claims in this case. See Citizen Band, 498 U.S. at 511. But a withdrawal is not a reservation.

In addition to being legally inaccurate, the Tribe’s withdrawal test should not be adopted by this Court because it is not functional. Some reservation treaties do not mention withdrawals at all because the reservations are located on unceded

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Indian lands where the public land laws do not apply. See, e.g., Treaty with the

Yakima, 12 Stat. 951 (June 9, 1855); 1836 Treaty, arts. 2 and 3. Likewise, there are

treaties that establish reservations even before they are located, making it impossible

to know which lands to withdraw from sale. See 1854 La Pointe Treaty, art. 2, para.

6th. Those reservations would simply fall through the cracks in the Tribe’s test.

Nor does the Tribe’s test account for the fact that lands can be withheld from

sale temporarily, even if the United States does not ultimately enter into a treaty. As

noted above, President Lincoln temporarily withdrew lands for a potential treaty

with the Odawa and Ojibwe in 1864, which President Grant returned to market in

1874. (Executive Orders, R.559-41, PageID##8355-8356; Notice of Restoration to

Market, R.560-4, PageID#8693.) Not even the Tribe has argued that those lands are

an Indian reservation today. But adopting a test that focuses on a withdrawal without

requiring that the lands be set aside would be highly disruptive to landowners, as

well as states and local governments that exercise jurisdiction over lands temporarily

withdrawn from sale and later returned to market.

Likewise, the Tribe does not attempt to explain the implications of using a test

that would recognize an Indian reservation where the federal government does not

exercise jurisdiction. The federal government’s power to enforce federal law on

Indian lands has long been intertwined with tribal rights over land. See

Leavenworth, L. & G.R. Co. v. United States, 92 U.S. 733, 742 (1875). That federal

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authority remains essential today. As 18 U.S.C. § 1151(a) indicates, federal law is concerned with Indian reservations that fall under the federal government’s jurisdiction. The Tribe’s test leaves significant questions about whether federal laws would apply inside of reservations where there is no federal jurisdiction and how those federal laws could be enforced.

The Tribe’s emphasis on withdrawing land, not setting it apart, and the complete absence of any federal superintendence in its test attempts to direct the

Court’s attention away from the reservation-creation language missing from the

1855 Treaty. Following the Supreme Court’s direction to apply the three-part Indian country test to resolve disputes over different forms of Indian lands is the only logical and consistent way to decide questions like the one presented in this case and in other cases where a federally-recognized Indian tribe claims a treaty grants it

Indian country.

II. The Tribe does not present evidence of the Indian understanding of the 1855 Treaty. The modern-day Tribe leaves no doubt that it wants the 1855 Treaty to have created Indian reservations accorded the status of Indian country under federal law.

But it does not provide historical and anthropological evidence showing that its ancestors who negotiated the 1855 Treaty thought they had secured the right to

Indian reservations under federal jurisdiction.

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It is very difficult to imagine band members who were denied the permanent

reservations that they were promised in the 1836 Treaty and who feared removal by

the federal government wanted to live on reservations. A reservation may seem like

a good deal today – certainly better than the land frauds and tax forfeitures that

robbed the band members of their lands in the 1800s. But that perspective is the

product of hindsight. There is no evidence that any of the federal or band

representatives could have predicted that those events would occur as the 1855

Treaty was being negotiated.

Moreover, the Tribe downplays what it would have meant to live on reservations in the 1800s. The Tribe quotes a secondary source that described Indian reservations as “schools for civilization, in which Indians under the control of the agent would be groomed for assimilation.” (Br. 6.) (Cohen’s Handbook, R.606-5,

PageID#11691.) That same source goes on to explain that reservations “were not, however, voluntary schools.” (Id.) The federal government used the military to exclude people from the reservations thought to have a bad influence on the Indians, protect Indian agents, and control the Indians through force. (Id.) As Commissioner of Indian Affairs Francis Walker once put it, Indians

should be made as comfortable on, and uncomfortable off, their reservations as it was in the power of the Government to make them; that such of them as went right should be protected and fed, and as such went wrong should be harassed and scouraged without intermission…. Such a use of the strong arm of the Government is not war, but discipline.

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(Id., PageID#11691 at fn 283(internal quotation marks and citation omitted).) Nor

was the desire to “civilize” Indians independent of American aims to acquire Indian

lands. Federal officials hoped that, as the Indians learned to become “civilized” on

reservations, they would “need less reservation land,” allowing the United States to

acquire and sell the surplus lands. (Id., PageID#11691.)

Had the Odawa and Ojibwe treaty negotiators learned that Manypenny and

Gilbert were promising reservations under the 1855 Treaty, some discussion (likely

a loud protest) would have been recorded in the journal of the treaty council. But

there was no discussion of establishing new Indian reservations at the treaty council

at all. The Tribe unsuccessfully attempts to fill this evidentiary void by relying on

federal policy, post-treaty documents that do not reflect an understanding of the treaty negotiations, and generalities about Indian understanding.

The Odawa and Ojibwe bands faced many disadvantages in the nineteenth century. But in 1855, their leaders understood the deal they struck to allow band members to acquire individual lands and live under state jurisdiction, finally free of the risk that the federal government would remove them from Michigan.

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A. Federal Indian policy did not dictate that the 1855 Treaty create reservations. The Tribe presents federal Indian policy under Manypenny as if it required

Indian reservations in every treaty or if the reservations were the path to “civilizing”

every Indian. That was not the case.

Manypenny did not philosophically favor reservations. As he explained to

Interior Secretary McClelland, “This policy [of establishing reservations] was

deemed objectionable, and not to be adopted if it could be avoided[.]” (1853

ARCOIA, R.558-45, PageID#7421.) He viewed reservations not “consistent with

their [the Indians’] true interests” and thought that, if the tribes ceded their territory,

“no reservations should, if it can be avoided, be granted or allowed.” (Id.) Further,

as Manypenny pointed out, “There are some Indians in various tribes who are

occupying farms, comfortably situated, and who are in such an advanced state of

civilization, that if they desire to remain” he proposed that “their farms in each case

be reserved for their homes.” (Id.) Those Indians “would be qualified to enjoy the

privileges of citizenship.” (Id.)

By 1854, Manypenny realized that removing Indians would eventually

become impractical as westward expansion continued. (Cohen’s Handbook, R.606-

5, PageID#11690.) But the federal government did not “shift[] fully away from removal to concentration on fixed reservations” until 1858. (Id.) When Manypenny was considering the future of the Odawa and Ojibwe bands in Michigan, there was

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no law or other federal mandate to establish reservations for all tribes, much less for tribes without aboriginal lands left to cede.

Further, the circumstances in Michigan did not require the federal government to establish reservations for the Odawa and Ojibwe bands. The Michigan bands were not blocking non-Indian settlement. (1853 ARCOIA, R.558-45,

PageID##7416-7417.) To the contrary, the bands were concerned that the non-

Indians were already taking prime lands. (Kowize, R.559-35, PageID#8313.) Nor did the state advocate for removing the bands in 1855. (1855 Journal, R.558-11,

PageID#7144.) The Americans considered the Odawa and Ojibwe bands to be different from other bands or tribes because they presented themselves as Christians.

(1855 Journal, R.558-11, PageID#7147.)

More importantly, Manypenny had already embraced the idea of having

“civilized” Indians own farms and become citizens. (1853 ARCOIA, R.558-45,

PageID#7421.) Federal officials viewed the Odawa and Ojibwe bands to be more

“civilized” than other bands. (1855 ARCOIA, R.558-50, PageID#7558.) In addition to being landowners, many of the Odawa and Ojibwe were engaged in farming lands and performing skilled labor. (Id., PageID#7558; 1853 ARCOIA, R.558-46,

PageID#7464.) Michigan had also done its part by extending the right to vote to

“civilized” male Indians, effectively offering them state citizenship. (1850 Michigan

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Constitution, R.559-28, PageID#8184, 8190; Richmond to Medill, R.559-24,

PageID##8164-8165.)

The 1855 Treaty encompassed significant federal Indian policy goals for the

Odawa and Ojibwe band members, particularly with respect to ending annuities, landownership, and citizenship. (1853 ARCOIA, R.558-45, PageID##7421, 7431-

7432.) Consistent with those goals, the 1855 Treaty: ended annuities under multiple treaties; replaced those annuities with payments in goods and a finite sum of money; required payment for the 1836 reservations; made individual band members landowners; funded Indian education; allowed the United States to support churches and schools; and made it possible for non-Indians to settle among the Indians once the United States opened the remaining lands for settlement. (1855 Treaty, R.558-

6, PageID##6893-6896.)

All these features of the 1855 Treaty moved the Odawa and Ojibwe band members along Manypenny’s preferred path toward being self-sustaining,

“civilized” farmers and citizens. The 1855 Treaty was consistent with federal policy even though it did not create Indian reservations. As Commissioner Manypenny explained in 1856, “[U]nder the liberal provisions of the treaties of 1855, by which every family is to receive a homestead from the public domain, and the friendly feelings manifested toward them by the people of that State, present indications

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would seem to justify the hope that they will attain a much higher state of civilization….” (1856 ARCOIA, R.558-52, PageID#7589.)

B. The post-treaty documents the Tribe cites shed little light on the Indian understanding of the treaty when it was negotiated in 1855. The Tribe points to documents from between the 1850s and the 1870s that used the word reservation to refer to the lands withdrawn from sale, claiming those documents as evidence that those lands were Indian reservations under federal law.

(Br. 16-19, 43-48.) But the Tribe’s argument never accounts for the fact that the word reservation –in its common meaning – accurately described lands that were unavailable for purchase or entry during a period when they were temporarily withdrawn from sale or subject to a restriction on alienation. (1850 Webster’s

Dictionary, R.600-53, PageID#10790.) A deeper look at those documents shows that the word reservation was used at the time to refer to geographic areas where lands were withdrawn from sale rather than as a legal term of art. Further, those documents do not change the language of the 1855 Treaty or its purpose revealed through the parties’ negotiations.

The Tribe begins this part of its brief with reports by Michigan Indian agents in the 1850s and 1860s. (Br. 43-46.) The Tribe is preoccupied with the number of reservations that the agents identified, but it never explains why the number is important to interpreting the language of the 1855 Treaty or the Indians’

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understanding of it in 1855. (Id.) The Tribe also skips documents from 1864, when

Agent Leach proposed a new treaty to “set apart” land for the Odawa and Ojibwe bands to prevent issuing patents to band members, which would have left them vulnerable to dispossession. (Leach to Dole, R.600-143, PageID#11308.)

More importantly, many of the documents that the Tribe cites provide evidence that lands under the 1855 Treaty were not treated as Indian reservations, a point that the district court understood from its own detailed review of the record.

For instance, an 1857 report from Michigan Indian Agent A.M. Fitch listed the reservations under the 1854 La Pointe Treaty that had been surveyed, but on which allotments to Indians had not been made at that time. (1858 ARCOIA, R.558-4,

PageID#7616.) The same report drew a contrast with the 1855 Treaty by highlighting the individual land selections and improvements that had already occurred on those lands. (Id., PageID#7616, 7618.) In other words, federal officials had different starting points for the bands that were parties to the 1854 La Pointe

Treaty and the 1855 Treaty because they treated the lands differently. Because the

1854 La Pointe Treaty created Indian reservations, the federal officials’ first step was to survey and mark those reservations. But because the 1855 Treaty made band members individual landowners instead of creating reservations, the federal officials’ first step was to implement the land selection process.

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The Tribe moves on to snippets of documents from higher-level federal officials, none of whom attended the 1855 Treaty council. (Br. 47.) The Tribe does not explain the context for any of the quotes. For instance, one document is a cover letter from Commissioner of Indian Affairs Dole to Interior Secretary J.P. Usher.

(Executive Orders, R.559-41, PageID#8355.) Dole forwarded Leach’s letter proposing to withdraw lands from sale in anticipation of negotiating an 1864 treaty with the Odawa and Ojibwe bands. (Id.) But the new treaty was never negotiated, the lands were returned to market, and the band members ultimately received their patents under the 1855 Treaty. (Executive Orders, R.559-41, PageID#8356; Notice of Restoration to Market, R.560-4, PageID#8693.) This document from Dole reveals only that the federal government had, at one time, planned to move away from individual landownership for band members, but never executed that plan.

(Executive Orders, R.559-41, PageID#8355.) It says nothing about the 1855 Treaty establishing Indian reservations.

Finally, the Tribe cites six Indian letters, most relegated to a footnote. (Br.

48.) The Tribe does not name any of the Indian authors, place them at the 1855

Treaty council, note any basis for their knowledge of the treaty, provide a quote from the correspondence, or explain how the United States responded. The Tribe’s analysis consists of a single sentence in footnote 4 that says, “References in the

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record to the Indians referring to the 1855 Treaty lands as reservations abound.”

(Id.)

The letters do not support the Tribe’s argument. For instance, Nabunnagesich

wrote to Fitch in 1859, asking whether he and the other band members near

Pentwater would be given a team of oxen to help them clear the land, a reference to

the assistance the federal government promised in Article 2, Paragraph Second of

the 1855 Treaty. (Nabunnagesich, R.600-60, PageID#10810; 1855 Treaty, R.558-

6, PageID#6895.) He refers to the “Indian reservation,” but makes the point that if

he had a “good yoke of oxen” he would “soon have me a farm cleared up[.]”

(Nabunnagesich, R.600-60, PageID#10810.) He had “five stacks of hay to feed

cattle this winter” and noted lands that his brother and another band member had

cleared. (Id.) He recalled that the agent had promised a cow to the Indian with the

best farm and “claim[ed]” that “present,” saying that “any unconcerned man will

agree” that he had cleared the most land. (Id.)

Nabunnagesich used the word reservation, but the substance of his letter stresses his individual effort on his individual farm. (Nabunnagesich, R.600-60,

PageID#10810.) The letter also reveals that the Indian agent did not use military- style tactics to compel band members to clear land to farm, as might have happened on a reservation. (Id.) This letter is evidence that both the Indians and federal agents

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viewed the band members as individual landowners under the 1855 Treaty, not

residents of an Indian reservation subject to federal governance.

In 1862, Nebenesahn and other band members wrote to Leach to complain

about a missionary named Henry Jackson who sought to establish his own church

for the band members and to “claim a lot of land on this reservation” although he

was a “Canadian born Indian[.]” (Nebenesahn, R.600-65, PageID#10829.) The

band members were “satisfied with our present form & mode of worship[.]” (Id.)

They wanted to rid themselves of the annoying missionary and reminded Leach that

Canadian Indians,1 like Jackson, could not claim lands under the 1855 Treaty. (Id.)

Nebenesahn was correct that Article I limited land selections “only to those Indians who are at this time actual residents of the State of Michigan, and entitled to annuities” under the 1836 Treaty. (1855 Treaty, R.558-6, PageID#6895.) But defending land selections from ineligible claimants is consistent with the 1855

Treaty’s promise of individual landownership to eligible band members for a limited period; it says nothing about Indian reservations.

The other letters also address matters important to the Odawa and Ojibwe, but do not substantively support the Tribe’s position. Cabmoosey and band members on the “Oceana Reserves” asked to change the location where they received annuity

1 Due to the threat of removal, many band members had fled from Michigan to Canada before 1855.

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payments in the fall because of a number of issues, including the difficulty in moving

materials late in the year and the availability of alcohol at Pentwater. (Cabmoosey,

R.600-62, PageID#10814.) Peter Wakazoo and band members on the “Emmet

County Reservation” petitioned the Commissioner of Indian Affairs to have their land selections surveyed and certificates issued. (Wakazoo, R.600-63,

PageID#10819.) They also requested materials to build and furnish their homes and tools like “grub hoes” and “corn shellers” for farming their lands. (Id.) Nebenancy and others wrote to Leach from Pere Marquette in 1861 complaining about the interpreters on the “reservations” were not working hard, asking to maintain a blacksmith shop in its current location, and seeking a new blacksmith. (Nebenancy,

R.600-64, PageID#10827.) These letters involved Indian rights under the 1855

Treaty, including annuities, materials, and blacksmiths under Article 2 and interpreters under Article 4. (1855 Treaty, R.558-6, PageID##6895-6896.) But none of them provide insight into the Odawa and Ojibwe understanding of Article I when it was negotiated in 1855.

This section of the Tribe’s brief is little more than the tables the Tribe used in its district court briefing, albeit without the grid lines. If the Tribe chooses to ignore most of the historical record leading up to the 1855 Treaty, including the journal recording the treaty negotiations, then it must do more than provide the Court and parties with a list of post-treaty documents. It must explain how those documents

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are “significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment.” Chao v.

Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). The Tribe’s failure to do so requires affirming the district court.

C. The Odawa and Ojibwe band leaders understood their agreement to obtain individual landownership in the 1855 Treaty. One of the most astounding aspects of this litigation is that the Tribe leaves it to the other parties to inform the Court about its ancestors. The Tribe never introduces the resilient and resourceful people who faced more than one dire threat and found ways to survive and adapt. In doing so, the Tribe advances its modern interests at the expense of the bargain the Odawa and Ojibwe struck in 1855. The

Indian canons of construction prevent that outcome. See DeCoteau v. Dist. County

Court for Tenth Judicial Dist., 420 U.S. 425, 447 (1975) (Indian canons of construction do not permit courts to disregard tribal intent).

Bands in the Great Lakes had their first contact with the French in 1615.

(Compl., R.1, PageID#4, ¶16.) The British followed not long after, and then the

Americans. (Blackbird’s Song, R.335-4, PageID#3712.) These non-Indian newcomers married into the extended Indian families that provided the structure for

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the Odawa and Ojibwe culture, economy, and politics.2 (Id., PageID#3713; Hamlin

Biography, R.335-11, PageID#3777-3779.)

The Americans may try to take credit for bringing religion, education,

agriculture, homes, and other trappings of non-Indian life to the Odawa and Ojibwe.

But they claim credit where none is due. The bands already grew crops, lived houses

in villages, interacted with non-Indians, and had contact with missionaries dating to

the 1600s. (Hamlin Biography, R.335-11, PageID#3778; Blackbird’s Song, R.335-

4, PageID##3716, 3719.)

By the first half of the nineteenth-century, band leaders knew that the

Americans were in Michigan to stay and that change was necessary to their survival.

(Blackbird’s Song, R.335-4, PageID##3715, 3719; Hamlin Biography, R.335-11,

PageID#3779.) Among several strategic choices they made, band leaders sent

children who showed promise for more education so they could act as

intermediaries. (Hamlin Biography, R.335-11, PageID##3779-3780.) Young

people, like Augustin Hamlin, Jr. (Kanapima), and his cousins William, Margaret,

2 Those kinship connections reached all the way to the White House. The 1836 Treaty, Article Ninth, provides money in lieu of a reservation to Joseph Framboise, a French fur trader. (1836 Treaty, R.558-2, PageID#6828.) He married an Odawa- French woman, Madeline or Magdelaine La Framboise, who became a highly successful fur trader on Mackinac Island after his untimely death. (Blackbird’s Song, R.335-4, PageID#3712.) Their daughter, Josette, married Benjamin K. Pierce – President Pierce’s brother – when he was the commander of the fort on Mackinac Island after the War of 1812. (Id., PageID#3713.)

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and Andrew Jackson Blackbird (Makade Binissii or Mucudepenase) were educated

with non-Indians. (Id.; Blackbird Marker, R.600-127, PageID#11086; Blackbird

Marker in Anishinaabemowin, R.616-3, PageID#12030.) See, generally, Matthew

L.M. Fletcher, Wenona T. Singel, Indian Children and the Federal-Tribal Trust

Relationship, 95 Neb. L. Rev. 885, 910 (2017).

These young people and others grew up to be advocates for the bands.

Hamlin’s name appears repeatedly in the historical record as he attended the 1836

Treaty council and petitioned the state and federal government on behalf of the bands. (1836 Journal, R.558-4, PageID#6874; Hamlin to Cass, R.559-14,

PageID##8087-8088; Hamlin to Mason, R.559-20, PageID##8132-8134.)

Blackbird was an author. (Blackbird Article, R.559-48, PageID##8424-8425.) Both men participated in the 1855 Treaty council. (1855 Journal, R.558-11,

PageID##7125, 7143.)

The Odawa and Ojibwe did not watch passively as the world changed around them. They knew how to access power, through their Indian agents and other officials. (Hamlin to Mason, R.559-20, PageID##8132-8134; Blackbird Book,

R.600-125, PageID#11080.) They wrote repeatedly to federal and state officials to express their desire to stay in Michigan and to signal their willingness to adapt the way they lived. The Odawa and Ojibwe petitions in the 1830s, 1840s, and 1850s show their insight into American culture. The bands knew exactly what the

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Americans wanted from them. As a result, their petitions stress the same four themes: (1) a willingness to become “civilized” and educated; (2) a desire to become state citizens; (3) their conversion to Christianity; and (4) the quest to become landowners. (Apakosigan, R.335-7, PageID#3753; Hamlin to Mason, R.559-20,

PageID##8132-8134; Chippeways and Ottawa, R.559-34, PageID##8305-8306;

Kowize, R.559-35, PageID#8313; Nabunegezhick, R.600-45, PageID#10762;

Blackbird Book, R.600-125, PageID#11080.) When written petitions were not enough, they traveled all the way to Washington, D.C., to meet with federal officials in person. (Chippeways and Ottawa, R.559-34, PageID##8305-8306; 1855 Journal,

R.558-11, PageID##7126-7127, 7139-7140.)

Waubojeeg, Assagon, Blackbird, and the other band leaders who were at the treaty council in Detroit in July 1855 knew exactly what was at stake. This was not the first treaty between the United States and these bands – it was their sixth treaty.

(Gilbert to Manypenny, R.559-33, PageID##8285-8286; 1855 Journal, R.558-11,

PageID##7129-7135.) If the band leaders had not personally participated in negotiating the 1836 Treaty or the Articles of Assent after the Senate changed the

1836 Treaty, they knew about those negotiations from others and had personally lived with the consequences. (1855 Journal, R.558-11, PageID#7127; Articles of

Assent, R.558-5, PageID#6879-6890.) To borrow Hamlin’s words from an 1851 letter he wrote to the chiefs about a removal plot, they could “not use any ambiguous

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words.” (Kanapima, R.559-30, PageID#8211.) They had to assert their right to stay in Michigan, out from under federal control. And that is exactly what they did at the treaty council in 1855.

In the Odawa and Ojibwe culture, leaders are chosen for a range of reasons that include their oratorical skills. (Driben Dep., R.335-10, PageID#3766.) Those skills were on full display at the treaty council in Detroit and are captured in enough detail in the treaty council journal to show what the band leaders understood. Even the English-language papers reporting on the negotiations noted the band leaders’ engaging style, describing one band leader’s speech greeting Lewis Cass as

“eloquence of the heart.” (Christian Advocate, R.559-46, PageID#8418.)

The band leaders used allegory, metaphor, and descriptive terms. In one of the most lyrical examples of the negotiations, Wasson used the story of the little swan, much like the goose that laid the golden egg, to explain the Indians’ desire to continue annuity payments. (1855 Journal, R.558-11, PageID#7128.) This not only demonstrated the band leaders’ understanding of money, it resonated with the

Americans, who picked up the allegory and used it in other money discussions. (Id.,

PageID## 7150, 7151.) By the end of the negotiations, Assagon expressed the band leaders’ assent to stop annuities after ten years using the same reference, saying,

“Now since our little swan is to live ten years & not diminish by age, we wish you to feed him, & are willing to take the interest & the $10,000 for ten years. And we

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wish you in the meantime to take good care of the swan, so that we shall find him in good order.” (Id., PageID#7152.)

The journal also provides evidence of its own authenticity and accuracy. The band leaders peppered the discussions with the four themes that appeared in their petitions leading up to 1855: “civilization” and education; citizenship; Christianity; and landownership. (1855 Journal, R.558-11, PageID##7139-7140, 7143-7145,

7147-7148, 7152, 7155, 7160.) Paybahmesay even compresses most of those themes into a single statement, saying, “We find your advice good. That we should be christians, civilized & educated & honest, is good. We will not forget it.” (Id.,

PageID#7160.) That consistency shows that those statements recorded at the treaty council genuinely reflected the Odawa and Ojibwe negotiators’ position in the negotiations. Blackbird also used an interesting rhetorical device, voicing the bands’ concerns that the United States would not grant titles and would take back the lands being offered, inviting Manypenny to tell him those concerns were unfounded. (Id.,

PageID#7144.) Manypenny obliged him, reassuring the “young man” that he was

“in error on some points.” (Id.) Perhaps most importantly, when the 1855 Treaty council journal is read as a whole, there is substantial consistency between the negotiations and the language in the 1855 Treaty, making the journal a valuable aid in understanding the Indian perspective.

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There is nothing implausible about the Americans and Indians reaching a

mutual understanding over individual landownership at the treaty council. The band

leaders expressed both their agreement and disagreements clearly, such as when

Shawwasing accepted the individual lands proposal or when Assagon insisted on

land for orphans. (1855 Journal, R.558-11, PageID##7140, 7148.) Manypenny

knew that some of the band leaders (though not all) read and spoke English.3 (Id.,

PageID#7158.) At one point in the negotiations, the band leaders even presented

their demands in writing. (Id., PageID#7149.) The Americans read the treaty aloud

and explained it. (Id., PageID#7154.)

Experienced interpreters also assisted the negotiations. (Driben Dep., R, 335-

10, PageID##3770-3772; Valentine Dep., R.616-4, PageID#12043; Valentine Dep.,

R.616-8, PageID#12073.) According to the Tribe’s linguist, “with enough attention,

care, time,” the treaty concepts could be interpreted for the band leaders who did not

speak English. (Valentine Dep., R.616-4, PageID#12042.) And there is every

indication that the band leaders had enough time to consider and understand these

terms. Treaty negotiations lasted a full week with the only complaints from the

3 The Tribe’s lawyers misunderstand why the band leaders signed the treaty with an X. (Br. 13.) That mark is not a literacy test. Even Blackbird, who was literate in English, signed the treaty with an X. (1855 Treaty, R.558-6, PageID#6897.) The act that made the treaty operative from the band leaders’ cultural perspective was touching a pen to the treaty paper. (Driben Rep., R.335-3, PageID#3691.)

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Indians being that they were eager to be done, not that the negotiations were moving

too quickly. (1855 Journal, R.558-11, PageID#7149.)

The Tribe has not come forward with any documents that create an ambiguity

about the treaty that must be resolved in favor of concluding it created Indian

reservations under the Indian canons of construction. See Mille Lacs, 526 U.S. at

200. Nor has the Tribe come forward with evidence that creates a material question

of fact concerning the Indian understanding that would require a trial in this case or

judgment in its favor. The evidence plainly dictated the district court’s ruling, which

must be affirmed.

CONCLUSION AND RELIEF REQUESTED For all the hardships they endured after 1855, the Odawa and Ojibwe successfully extricated themselves from the threat of federal removal and established their enduring right to remain in Michigan in the 1855 Treaty. For the reasons stated above, and in the briefs submitted by the other Appellees, the Emmet County

Townships respectfully request that the Court affirm the district court’s decision.

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Respectfully submitted,

FRASER TREBILCOCK DAVIS & DUNLAP, P.C. Attorneys for Intervenor–Appellees Emmet County Townships

By: /s/ Thaddeus E. Morgan Thaddeus E. Morgan (P47394) 124 W. Allegan Street, Suite 1000 Lansing, Michigan 48933 (517) 482-5800 Dated: May 20, 2020

46 Case: 19-2070 Document: 69 Filed: 05/20/2020 Page: 65

CERTIFICATE OF COMPLIANCE Certificate of Compliance with Type-Volume Limit, Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B)(i) because, excluding the part of the document

exempted by Federal Rule of Appellate Procedure 32(f), this brief contains no

more than 13,000 words. This document contains 10,046 words.

2. This document complies with the typeface requirements of Federal

Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal

Rule of Appellate Procedure 32(a)(6) because this document has been prepared in a

proportionally spaced typeface using Word 2013 in 14-point Century Schoolbook.

Respectfully submitted,

FRASER TREBILCOCK DAVIS & DUNLAP, P.C. Attorneys for Intervenor–Appellees Emmet County Townships

By: /s/ Thaddeus E. Morgan Thaddeus E. Morgan (P47394) 124 W. Allegan Street, Suite 1000 Lansing, Michigan 48933 (517) 482-5800 Dated: May 20, 2020

47 Case: 19-2070 Document: 69 Filed: 05/20/2020 Page: 66

CERTIFICATE OF SERVICE I certify that on May 20, 2020, the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered

users or, if they are not, by placing a true and correct copy in the United States mail,

postage prepaid, to their address of record (designated below).

Respectfully submitted,

FRASER TREBILCOCK DAVIS & DUNLAP, P.C. Attorneys for Intervenor–Appellees Emmet County Townships

By: /s/ Thaddeus E. Morgan Thaddeus E. Morgan (P47394) 124 W. Allegan Street, Suite 1000 Lansing, Michigan 48933 (517) 482-5800 Dated: May 20, 2020

48 Case: 19-2070 Document: 69 Filed: 05/20/2020 Page: 67

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS Defendants – Appellees Emmet County Townships, per Sixth Circuit Rule

28(a), 28(a)(1)-(2), 30(b), hereby designated the following portions of the record

on appeal:

DESCRIPTION OF ENTRY DATE RECORD PAGE ID NO. RANGE ENTRY NO.

COMPLAINT FOR 08/21/2015 R. 1 PAGE ID #1–18 DECLARATORY AND INJUNCTIVE RELIEF

MAP OF LITTLE TRAVERSE BAY 08/21/2015 R. 1-1 PAGE ID #19 BANDS OF ODAWA INDIANS RESERVATION AND TRUST LANDS

ORDER GRANTING MOTIONS TO 02/17/2016 R. 38 PAGE ID #442–443 INTERVENE WITH RESPECT TO LOCAL UNITS OF GOVERNMENT

ANSWER TO PLAINTIFF’S 03/16/2016 R. 51 PAGE ID #574–600 COMPLAINT BY INTERVENING DEFENDANTS EMMET COUNTY TOWNSHIPS

AMENDED ANSWER TO 10/03/2017 R. 240 PAGE ID #2773–2798 PLAINTIFF’S COMPLAINT BY INTERVENING DEFENDANTS EMMET COUNTY TOWNSHIPS

EXCERPTS FROM PAUL DRIBEN, 04/25/2018 R. 335-3 PAGE ID #3687–3705 PH.D., UNDERSTANDING THE TREATY WITH THE OTTAWA AND CHIPPEWA – 1855 FROM AN ANISHNAABE POINT OF VIEW (AUGUST 7, 2017)

49 Case: 19-2070 Document: 69 Filed: 05/20/2020 Page: 68

DESCRIPTION OF ENTRY DATE RECORD PAGE ID NO. RANGE ENTRY NO.

EXCERPT FROM THEODORE J, 04/25/2018 R. 335-4 PAGE ID #3706–3719 KARAMANSKI, BLACKBIRD’S SONG: ANDREW J. BLACKBIRD AND THE ODAWA PEOPLE (2012)

TRANSCRIPT OF LEO 04/25/2018 R. 335-7 PAGE ID #3752–3753 APAKOSIGAN ET AL. PETITION TO TYLER (MAY 20, 1841)

EXCERPTS FROM DEPOSITION 04/25/2018 R. 335-10 PAGE ID #3764–3772 OF PAUL DRIBEN, PH.D. (MARCH 19, 2018)

TREATY OF MARCH 28, 1836, 7 02/08/2019 R. 558-2 PAGE ID #6824–6831 STAT. 491

JOURNAL OF 1836 TREATY 02/08/2019 R. 558-4 PAGE ID #6863–6877 NEGOTIATIONS, MARCH 15–28, 1836. RECORDS OF A TREATY CONCLUDED WITH THE OTTAWA AND CHIPPEWA NATIONS, AT WASHINGTON D.C. MARCH 28, 1836, PAPERS OF HENRY ROWE SCHOOLCRAFT, LIBRARY OF CONGRESS, MANUSCRIPT DIVISION, WASHINGTON, D.C. (TRANSCRIPT)

ARTICLES OF ASSENT TO THE 02/08/2019 R. 558-5 PAGE ID #6878–6890 AMENDMENTS OF THE RESOLUTION OF THE SENATE OF THE UNITED STATES RATIFYING THE TREATY OF THE TWENTY- EIGHTH OF MARCH 1836, DATED JULY 2, 1836, NAM M668 R8:89–95, 97–117

50 Case: 19-2070 Document: 69 Filed: 05/20/2020 Page: 69

DESCRIPTION OF ENTRY DATE RECORD PAGE ID NO. RANGE ENTRY NO.

TREATY WITH THE OTTAWA 02/08/2019 R. 558-6 PAGE ID #6891–6901 AND CHIPPEWA INDIANS OF MICHIGAN, PARTIES TO THE TREATY OF MARCH 28, 1836 (JULY 31, 1855), 11 STAT. 621– 629, RATIFIED APR. 15, 1856, PROCLAIMED SEP. 10, 1856

PROCEEDINGS OF A COUNCIL 02/08/2019 R. 558-11 PAGE ID #7124–7160 WITH THE CHIPPEWAYS & OTTAWAS OF MICHIGAN HELD AT THE CITY OF DETROIT, BY THE HON. GEORGE W. MEANYPENY & HENRY C. GILBERT, COMMISSIONERS OF THE UNITED STATES, JULY 25, 1855 (TRANSCRIPT BY PLAINTIFF TRIBE)

DEPARTMENT OF INTERIOR, 02/08/2019 R. 558-28 PAGE ID #7259–7260 GENERAL LAND OFFICE, STATE OF MICHIGAN 1878

TERRITORY CEDED (ROYCE 02/08/2019 R. 558-31 PAGE ID #7265–7266 AREA 205) IN THE TREATY WITH THE OTTAWA, ETC., 1836, PUB. 1899

ANNUAL REPORT OF THE 02/08/2019 R. 558-45 PAGE ID #7411–7459 COMMISSIONER OF INDIAN AFFAIRS, 1853, 3–27, 36–55 (EXCERPTS)

ANNUAL REPORT OF THE 02/08/2019 R. 558-46 PAGE ID #7460–7474 COMMISSIONER OF INDIAN AFFAIRS, 1853, 38–49 (EXCERPTS)

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DESCRIPTION OF ENTRY DATE RECORD PAGE ID NO. RANGE ENTRY NO.

ANNUAL REPORT OF THE 02/08/2019 R. 558-49 PAGE ID #7507–7529 COMMISSIONER OF INDIAN AFFAIRS, 1854, 211–231 (EXCERPTS)

ANNUAL REPORT OF THE 02/08/2019 R. 558-50 PAGE ID #7530–7565 COMMISSIONER OF INDIAN AFFAIRS, 1855, 1–21, 27–39 (EXCERPTS)

ANNUAL REPORT OF THE 02/08/2019 R. 558-52 PAGE ID #7588–7610 COMMISSIONER OF INDIAN AFFAIRS, 1856, 4–24 (EXCERPTS)

ANNUAL REPORT OF THE 02/08/2019 R. 558-64 PAGE ID #7697–7707 COMMISSIONER OF INDIAN AFFAIRS, 1864, 444–452 (EXCERPTS)

AUGUSTIN HAMLIN TO LEWIS 02/08/2019 R. 559-14 PAGE ID #8085–8094 CASS (MEMORIAL OF THE OTTAWA DELEGATION), DECEMBER 5, 1835, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, RECORD GROUP 75, MICROCOPY 234, ROLL 421, FRAMES 722–725

AUGUSTIN HAMLIN JR., FOR 02/08/2019 R. 559-20 PAGE ID #8131–8138 THE CHIPPEWAS OF LITTLE TRAVERSE BAY, ADDRESS TO HIS EXCELLENCY, STEVEN T. MASON, JULY 2, 1839, RECORDS OF THE EXECUTIVE OFFICE, RECORD GROUP 44 B 157 F. 6 STATE ARCHIVES OF

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MICHIGAN, LANSING, MICHIGAN.

APAKOSIGAN, ET AL., PETITION 02/08/2019 R. 559-22 PAGE ID #8142–8150 TO HIS EXCELLENCY, PRESIDENT JOHN TYLER, MAY 20, 1841, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, RECORD GROUP 75, MICROCOPY 234, ROLL 424, FRAME 765

WILLIAM A. RICHMOND, 02/08/2019 R. 559-24 PAGE ID #8160–8166 ACTING SUPERINTENDENT OF INDIAN AFFAIRS, TO WILLIAM MEDILL, COMMISSIONER OF INDIAN AFFAIRS, NOVEMBER 6, 1847

REVISED CONSTITUTION OF THE 02/08/2019 R. 559-28 PAGE ID #8181–8201 STATE OF MICHIGAN, ADOPTED IN CONVENTION, AUGUST 15, 1850 (LANSING: R. W. INGALS, 1850), 18

AUGUSTIN HAMLIN, JR., 02/08/2019 R. 559-30 PAGE ID #8206–8211 KANAPIMA TO CHIEFS, JULY 31, 1851, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, MICROCOPY 234, ROLL 598, FRAMES 51–54

HENRY C. GILBERT, INDIAN 02/08/2019 R. 559-33 PAGE ID #8284–8303 AGENT FOR MICHIGAN, TO GEO. W. MANYPENNY, COMMISSIONER OF INDIAN AFFAIRS, MARCH 6, 1854

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PETITION OF THE CHIPPEWAYS 02/08/2019 R. 559-34 PAGE ID #8304–8311 AND OTTAWA INDIANS RESIDING IN THE STATE OF MICHIGAN, JANUARY 16, 1855, ROLL 404, M234, ROLL 404

KOWIZE ET AL. TO GEORGE W. 02/08/2019 R. 559-35 PAGE ID #8312–8318 MANYPENNY, 28 FEBRUARY 1855, NAM M234, R.404:553– 556

EXECUTIVE ORDERS RELATING 02/08/2019 R. 559-41 PAGE ID #8352–8370 TO INDIAN RESERVES (WASHINGTON: GOVERNMENT PRINTING OFFICE, 1902), 45– 49, MAY 14, 1855 – JULY 1, 1902

CHRISTIAN ADVOCATE AND 02/08/2019 R. 559-46 PAGE ID #8414–8418 JOURNAL, AUGUST 9, 1855

“AN APPEAL TO THE CITIZENS 02/08/2019 R. 559-48 PAGE ID #8423–8433 OF THE U.S. BY THE OTTAWA INDIANS OF MICHIGAN,” NOVEMBER 22, 1855, [7], ROLL 405, NATIONAL ARCHIVES MICROFILM SERIES M234, LETTERS RECEIVED BY THE OFFICE OF INDIAN AFFAIRS, 1824–1881

W.W. CURTIS, ACTING 02/08/2019 R. 560-4 PAGE ID #8691–8693 COMMISSIONER, GLO, “NOTICE FOR THE RESTORATION TO MARKET OF CERTAIN LANDS IN THE STATE OF MICHIGAN,” NO. 797, MAY 16, 1874, FILE: [NO FILE], BOX

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7, GENERAL LAND OFFICE INDIAN RESERVE FILES, RECORD GROUP 49: RECORDS OF THE BUREAU OF LAND MANAGEMENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, WASHINGTON, D.C.

NOTICE OF THE EMMET 03/18/2019 R. 571 PAGE ID #9325–9326 COUNTY TOWNSHIPS’ JOINDER AND CONCURRENCE IN INTERVENOR MUNICIPAL DEFENDANTS’ MOTION AND BRIEF FOR SUMMARY JUDGEMENT ON THE HISTORICAL RECORD

THE GOVERNOR’S MOTION FOR 03/18/2019 R. 581 PAGE ID #9616–9618 SUMMARY JUDGMENT OF HISTORICAL ISSUES

BRIEF IN SUPPORT OF THE 03/18/2019 R. 582 PAGE ID #9619–9691 GOVERNOR’S MOTION FOR SUMMARY JUDGMENT OF HISTORICAL ISSUES

NABUNEGEZHICK ET AL TO 04/24/2019 R. 600-45 PAGE ID #10762– COMMISSIONER OF INDIAN 10766 AFFAIRS GEORGE MANYPENNY; NATIONAL ARCHIVES, NAM M234 R.404:557–566

NOAH WEBSTER, AMERICAN 04/24/2019 R. 600-53 PAGE ID #10789– DICTIONARY (EXCERPT) 10790

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NA BUN NA GE SICH TO INDIAN 04/24/2019 R. 600-60 PAGE ID #10810– AGENT A.M. FITCH; NATIONAL 10811 ARCHIVES, NARA-DC, RG75, ENTRY 1130, LETTERS

COBMOOSEY, ET AL TO INDIAN 04/24/2019 R. 600-62 PAGE ID #10814– AGENT D.C. LEACH PETITION; 10818 NATIONAL ARCHIVES, NARA- DC, RG75, ENTRY 1130, LETTERS RECEIVED BY THE MICHIGAN SUPERINTENDENCY AND MACKINAC AGENCY, 1836–1870, BOX 13, VOLUME 35, 1861

WAKAZOO, ET AL TO 04/24/2019 R. 600-63 PAGE ID #10819– COMMISSIONER OF A.B. 10826 GREENWOOD; HOUSE OF REPRESENTATIVES, PETITION; NATIONAL ARCHIVES, NAM M234 R.406:940–945

NE-BE-NACY, ET AL TO INDIAN 04/24/2019 R. 600-64 PAGE ID #10827– AGENT [D.C.] LEACH 10828 PETITION; NATIONAL ARCHIVES, NARA-DC, RG75, ENTRY 1130, LETTERS RECEIVED BY THE MICHIGAN SUPERINTENDENCY AND MACKINAC AGENCY, 1836– 1870, BOX 13, VOLUME 35, 1861

NEBENESANH ET AL TO INDIAN 04/24/2019 R. 600-65 PAGE ID #10829– AGENT D.C. LEACH PETITION; 10832 NATIONAL ARCHIVES, NARA-

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DC, RG75, ENTRY 1130, LETTERS

COMMISSIONER OF INDIAN 04/24/2019 R. 600-95 PAGE ID #10909– AFFAIRS W.P. DOLE TO 10912 SPECIAL COMMISSIONER H.J. ALVORD; NATIONAL ARCHIVES, NAM M21 R.75:181–182

A.J. BLACKBIRD, HISTORY OF 04/24/2019 R. 600-125 PAGE ID #11079– THE OTTAWA AND CHIPPEWA 11081 INDIANS OF MICHIGAN

MICHIGAN HISTORIC SITE, 04/24/2019 R. 600-127 PAGE ID #11086 ANDREW J. BLACKBIRD HOUSE

COHEN’S HANDBOOK OF 04/29/2019 R. 606-5 PAGE ID #11687– FEDERAL INDIAN LAW, § 11691 1.03[6][A] AND [B] (EXCERPTS)

PHOTOGRAPH OF HISTORICAL 05/13/2019 R. 616-3 PAGE ID #12029– MARKER IN FRONT OF ANDREW 12030 J. BLACKBIRD HOUSE WRITTEN IN THE ODAWA DIALECT OF ANISHINAABEMOWIN

DEPOSITION OF J. RANDOLPH 05/13/2019 R. 616-4 PAGE ID #12031– VALENTINE – TRIBE’S 12045 LINGUIST, VOL. III (FEB. 10, 2018) (EXCERPTS)

DEPOSITION OF J. RANDOLPH 05/13/2019 R. 616-8 PAGE ID #12066– VALENTINE – TRIBE’S 12074 LINGUIST, VOL. II (FEB. 9, 2018) (EXCERPT)

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NOTICE OF JOINDER AND 05/20/2019 R. 619 PAGE ID #12170– CONCURRENCE 12171

OPINION 08/15/2019 R. 627 PAGE ID #12180– 12230

JUDGMENT 08/15/2019 R. 628 PAGE ID #12237

TRIBE’S NOTICE OF APPEAL 09/13/2019 R. 629 PAGE ID #12238

Respectfully submitted,

FRASER TREBILCOCK DAVIS & DUNLAP, P.C. Attorneys for Intervenor–Appellees Emmet County Townships

By: /s/ Thaddeus E. Morgan Thaddeus E. Morgan (P47394) 124 W. Allegan Street, Suite 1000 Lansing, Michigan 48933 (517) 482-5800 Dated: May 20, 2020