Michigan State University College of Law INDIGENOUS LAW & POLICY CENTER OCCASIONAL PAPER SERIES Michigan’s Emerging Tribal Economies: A Presentation to the Michigan House of Representatives Jake J. Allen, 2L, MSU College of Law Hannah Bobee, 2L, MSU College of Law Kathryn E. Fort, Staff Attorney, Indigenous Law and Policy Center Bryan Newland, 3L, MSU College of Law Wenona T. Singel, Associate Director, Indigenous Law and Policy Center Indigenous Law & Policy Center Working Paper 2007-07 April 13, 2007 Michigan's Emerging Tribal Economies I. Introduction II. Understanding Tribal Sovereignty III. Michigan Tribal Economies, Past and Present IV. Resources 2 I. Introduction The territory now known as the state of Michigan has been populated by indigenous peoples who have governed themselves since time immemorial. Today, Michigan has twelve Indian tribes recognized by the federal government as exercising sovereignty. The 2000 Census reported that Michigan has approximately 125,000 people who identify as entirely or partially American Indian.1 Of those who identified solely as American Indian, Michigan has the twelfth largest population nationwide and the fourth largest American Indian population east of the Mississippi River. Each of the Tribes in Michigan exercise of the powers of self-government within the land defined as Indian country under federal law. Indian country is a legal term of art defined by federal statute, and it includes all lands within reservation boundaries, all allotments, and all dependent Indian communities.2 Trust lands, or lands which the federal government holds in trust for the benefit of Indian tribes, also constitute Indian country.3 In addition to Indian country, another term of art with significance for Indian self- governance is the concept of a service area. Service areas constitute clusters of counties within which each tribe provides important governmental services to the American Indian population. Examples of services include health care, housing assistance and social services. Although Indian country and service areas are areas of critical importance for tribal governance, these areas only capture a portion of Michigan’s American Indian population. Nationwide, only about one third of all tribal citizens live on reservation land. In other words, about two-thirds of all tribal citizens live off reservation. Many live in urban areas and consider themselves urban Indians. In Michigan, urban areas with large American Indian communities include Detroit, Grand Rapids and Lansing. Detroit has the tenth largest urban Indian population in the nation. The federally recognized tribes in Michigan are each part of a larger group known as the People of the Three Fires. The Three Fires Confederacy represents the Ottawas, Potawatomis and Ojibwe.4 Members of each of these tribes also refer to themselves as the Anishinaabeg.5 These tribes have been active in the economy of the region since before European contact, and the presence of these sovereigns is an economic and cultural benefit to the state of Michigan. 1 The American Indian and Alaska Native Population: 2000, Census 2000 Brief (2002). 2 18 U.S.C. § 1151 (2002). 3 Citizen Band Potawatomi Indian Tribe of Oklahoma v. Oklahoma Tax Commission, 888 F.2d 1301 (10th Cir. 1989) aff'd in part, rev'd in part on other grounds 498 U.S. 505 (1991). 4 The Ottawas also refer to themselves as Odawa, and the Ojibwe also use Ojibway, Ojibwa and Chippewa to refer to themselves. 5 Clifton, James A., George L. Cornell, James M. McClurken, People of the Three Fires: The Ottawa, Potawatomi and Ojibway of Michigan (The Grand Rapids Inter-Tribal Council, 1986), iv-v 3 II. Understanding Tribal Sovereignty Tribes are sovereign entities and were operating as such prior to European contact. Succinctly put, tribal sovereignty is the power to exercise self-rule.6 In Williams v. Lee, the first Indian law case decided by the Supreme Court in the modern era, the Court referred to tribal sovereignty as “the right of reservation Indians to make their own laws and be ruled by them.”7 Tribal sovereignty has two critical aspects. First, tribal sovereignty is an inherent power that predates European contact and the formation of the United States.8 As such, the sovereign powers exercised by tribes today constitute retained rather than delegated powers.9 Second, the scope and content of tribal sovereignty is not addressed in the United States constitution. Unlike the states, which waived aspects of their sovereignty to join the federal union, tribes did not participate in the Constitutional Convention and agree to the same concessions as the states.10 As a result, the Constitution’s restrictions on federal and state governments do not apply directly to tribes.11 The Constitution only refers to tribes in three brief sections described later in this paper. To understand the nature of tribal sovereignty and the retained rights of Indian tribes, we must look principally to the treaties entered into between tribes and the federal government and the opinions of the Supreme Court that interpret those treaties. The treaties negotiated by tribes generally constituted solemn agreements in which tribes retained the right to exercise self-government and agreed to cede portions of their territory in exchange for payments, services, and the permanent right to occupy reservations and exercise the power of self-government without the interference of non- Indians. In 1871, the federal government ceased treaty-making, but the treaties entered into prior to this moratorium remain the supreme law of the land, constitutionally guaranteed by the Supremacy Clause.12 A. Michigan Tribes and Treaties Treaties involving Michigan Indian tribes included provisions that provided for cessions of land by the tribes in exchange for reservations or allotments, payments, and services. For example, the Treaty with the Ottawa and Chippewa Nation of 1836, also known as the Treaty of Washington, required the federal government to set aside certain tracts as 6 Joseph P. Kalt & Joseph William Singer, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule, Faculty Research Working Papers Series 7 (Harv. U. March 2004) (available at http:// ksgnotes1.harvard.edu/Research/wpaper.nsf/rwp/RWP04-016?OpenDocument) 7 Williams v. Lee, 358 U.S. 217, 219 (1959). 8 McClanahan v. Arizona Tax Commission, 411 U.S. 164, 172 (1973) (“[the tribe’s] claim to sovereignty long predates that of our own Government”). 9 United States v. Wheeler, 435 U.S. 313, 323 (1978). 10 Some courts have termed this relationship as “extraconstitutional” or even “preconstitutional.” United States v. Lara, 541 U.S. 193, 213 (2004) (Kennedy, J., concurring) (“extraconstitutional”); Lara, 541 U.S. at 201 (“preconstitutional”). 11 Talton v. Mayes, 163 U.S. 376, 382 (1896). 12 U.S. Const. Art. VI (“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”). 4 reservations, provide annuity payments, and provide additional funds for education, agricultural necessities, and medical goods and services.13 While there are many treaties between tribes in Michigan and the federal government, two are especially critical: the 1836 Treaty of Washington and the 1855 Treaty of Detroit. The 1836 Treaty of Washington was an agreement between tribes in Michigan and the federal government for the tribes to cede a large portion of what became Michigan to the United States Government in exchange for money. The land ceded by the 1836 Treaty constituted roughly the northern third of Michigan’s Lower Peninsula and the eastern half of its Upper Peninsula, with the exception of reservations that the tribes retained within this area. The Ottawa Chiefs and Headmen purchased lands in their name for all the members of their bands. Essentially, the tribes bought back parcels within the land that they had just sold, with the money they received in exchange for it. This was one way Michigan tribes were able to avoid the federal government’s attempt to remove them west of the Mississippi.14 The 1855 Treaty of Detroit was an agreement between certain tribes in Michigan and the federal government in 1855. The Treaty of Detroit ended the threat of forced removal to Kansas by the federal government by withdrawing from sale certain lands within the public domain to allow for the issuance of allotments and fee patents to individual Indians.15 The terms of this treaty required the United States Government to provide $538,400 for “the support of schools and to provide agricultural implants, household furnishings, and blacksmith shops.”16 The conditions on the land set aside for the tribes were extremely impoverished. The reduced land base led to complete economic dependence on the federal government for survival. B. Tribes and the Federal Government Because of the sovereign status of tribes, treaties, and certain portions of the Constitution, tribes and the federal government have a unique relationship. This relationship, sometimes called the trust relationship, is a sovereign-to-sovereign relationship. Aside from treaties, the political relationship between the tribes and the federal government can be traced to the Commerce Clause and Treaty Clause of the Constitution. The Commerce Clause states, “the Congress shall have Power . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”17 According to the Handbook of Federal Indian Law, “The commerce clause has become the linchpin in the more general power over Indian affairs recognized by Congress and the courts.”18 The Commerce Clause, therefore, “anticipat[es] and affirm[s] federal law singl[ing] out Indian nations and their members for separate treatment.”19 13 Art.