Bay Mills Indian Community

Native Nation Building and the CARES Act

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Native Nations Institute
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On June 10, 2020 the Native Nations Institute hosted an a online panel discussion with Chairman Bryan Newland of the Bay Mills Indian Community, Councilwoman Herminia Frias of the Pascua Yaqui Tribe, and hosted by Karen Diver the former Chair of the Fond du Lac Band of Lake Superior Chippewa and the Director of Business Development for the Native American Advancement Initiatives for the Native Nations Institute. These distinguished tribal leaders brought their wealth of knowledge and first-hand experience in making Indigenous Governance address the needs of their Native communities in response to the crisis surrounding COVID-19. Across Indian Country the pandemic has brought a rise in new challenges and bringing old ones to more prominence when dealing with the Federal Government for appropriate resources. The CARES Act was passed to address some of these needs but does not deal with the root of the issue many Native Nations face in asserting the methods of self-governance. The panelists provide insights on ways they are working to help the citizens of their Native Nations be resilient under constraints of emergency response. 

Transcript available upon request. Please email: nni@email.arizona.edu

John Petoskey: Tribal Sovereign Immunity and the Michigan v. Bay Mills case: What the Future Likely Holds and How Native Nations Should Prepare

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In this lecture for faculty and students of the University of Arizona's Indigenous Peoples Law and Policy Program, NNI Indigenous Leadership Fellow John Petoskey provides a comprehensive background of the Michigan v. Bay Mills case currently pending before the U.S. Supreme Court and discusses what Native nations can do now to prepare for each of of the case's likeliest outcomes, which are certain to have potentially significant impacts on the scope and functionality of tribal sovereign immunity.

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Petoskey, John. "Tribal Sovereign Immunity and the Michigan v. Bay Mills case: What the Future Likely Holds and How Native Nations Should Prepare." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 2, 2013. Interview.

Ian Record:

"Hi, my name's Ian Record. I'm Manager of Educational Resources with the Native Nations Institute, and we are here and our honored guest is here in conjunction with a program we run called the Indigenous Leadership Fellows Program. It's a program we established about five years ago. It was designed to do a couple things. First and foremost, ensure that NNI was on the right track with a lot of its research and educational efforts that it does around tribal governance and leadership and nation building, and also give the folks that we invited to serve as fellow the opportunity to come and share their wisdom and experience, and also give them a chance to start sort of taking a step back and sort of taking everything that they've done and figure out what is it that they want to share more broadly with, certainly with Native communities and the general public. So I know some of you were here at our talk yesterday that our Fellow John Petoskey gave and for those of you, welcome back.

I should mention that all of the talks and interviews that our Fellow John Petoskey will be giving this week during his residency will be featured on the Indigenous Governance Database. Some of you received a card for that there, it has the URL on there and so within about three to four weeks we'll have all of these videos up. If you come out of this talk saying, ‘Wow, this is amazing stuff. I really wish other people were here,' you don't really need to fret because you can just send them a link in just a few weeks time. So without further ado, I'd like to introduce our Fellow John Petoskey. John is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and for most of the past three decades has served as the nation's general counsel. And so he's been right there in the middle of a lot of monumental changes that the Band has experienced over the past three decades, regaining federal recognition as a federally recognized tribe, developing a new constitutional government, building up the rule of law to help that constitution system of government function well and achieve the nation's goals. So he's sort of been in the midst of all of that and what he's here to talk about today is a current Supreme Court case called Michigan vs. the Bay Mills Indian Community. A lot of you may know of this case, may already be studying this case in your classes or certainly reading about it. There's been a lot that's been written in the last few weeks and John's here to talk today about that case and its implications for the doctrine of tribal sovereign immunity and what he sees are the likely outcomes, potential likely outcomes of that case, if it is in fact heard by the U.S. Supreme Court in opinions handed down early next year, and what tribes should be thinking about doing depending on what those outcomes are. So without further ado, John Petoskey."

John Petoskey:

"Thank you. I would like to start with a disclaimer first. I am here as an attorney that is employed by Fredericks, Peebles & Morgan, and that's an Indian law firm. We have about 50 attorneys. We're located in Michigan where I am, Colorado, California, North and South Dakota, Washington D.C. And so the statements that I'm saying have to be taken...I'm trying to make a presentation without being disparaging anybody involved in any of these cases. However, I want to be upfront with the fact that I represented Little Traverse Bay Bands [of Odawa Indians] as an attorney for Fredericks, Peebles & Morgan in the case that is currently before the Supreme Court, although Little Traverse Bay Band has not participated in the appeal because it accepted the Sixth Circuit decision for reasons that I'll explain in more detail.

So in my presentation I am not stating any position for Little Traverse Bay Band, nor am I stating any position for Grand Traverse Band, which is a tribe that I worked for through Fredericks, Peebles & Morgan as their general counsel. I worked for Grand Traverse Band from '86 to 2010 when I was dismissed and I was gone for about two-and-a-half years and then I was rehired as their general counsel about a year ago under Fredericks, Peebles & Morgan. So I represent that tribe as their general counsel through Fredericks, Peebles & Morgan and I want to be clear that there's nothing that I'm saying here that has the official sanction of Little Traverse Bay Band or Grand Traverse Bay Band.

In addition, I also represent other tribes in Michigan that have taken positions on this case, particularly the Nottawaseppi Huron Band of Potawatomi in a related case that I filed pleadings in. Anything I say here does not relate to Nottawaseppi's position that it has taken in that related case. And the discussion that I am presenting is more on an educational basis as a participant in the case that is currently in front of the Supreme Court in the early federal district court proceedings and in the court of appeals proceedings, which forms the basis for the cert petition that was granted for review. After I give you that history of the case and the...I will present what I think are the possible outcomes in the Supreme Court and those outcomes are wide and diverse, but they're indeterminate right now because not all of the briefs have been filed in the court case nor has the oral argument been heard, which will not happen until December 2nd of this year.

So I want to start with giving you the background of the case and the history of Michigan. Michigan has 12 tribes in its state. It has seven tribes that were parties to the 1993 compact. Of those seven tribes, Bay Mills was one of the tribes, Grand Traverse Band was another tribe, then it has two other tribes in what we call the 1836 treaty area that were federally recognized in 1997 by federal statute and those are the Little River Band [of Ottawa Indians] and the Little Traverse Bay Band. Michigan is shaped like a hand and so Little River is right here, Grand Traverse Band is at the end of a peninsula in Traverse City and Grand Traverse Bay. The Little Traverse Bay Band is in Petoskey, Michigan. It's sort of right here. And Bay Mills is in the Upper Peninsula on the Lake Superior shore of White Fish Bay. There's a fifth tribe involved in this case in the related issue and that is the Saulte St. Marie Tribe of Chippewa Indians.

Bay Mills was recognized by treaty in 1855. They had a statute that provided them a reservation in the 1870s and they had an IRA [Indian Reorganization Act] constitution that was provided in 1934 under the Indian Reorganization Act. Saulte St. Marie was recognized administratively by the Secretary of the Interior's delegated authority to the Michigan Agency in the Minneapolis Area Office by administrative written decision in 1975. Grand Traverse Band was recognized under the Federal Recognition Process of 1980 as the first tribe to be federally recognized. LTB [Little Traverse Bay Bands of Odawa Indians] and LRB [Little River Band of Ottawa Indians] as I mentioned were recognized under the 1997 statute. So those five tribes are all signatories to the 1855 Treaty and the 1836 Treaty.

Incident to the 1836 treaty the tribes ceded to the United States a large proportion of the State of Michigan. In the Indian Claims Commission in 1951 the Bay Mills Indian Community, as the only existing federal Indian tribe, filed a claim for unconscionable dealings against the United States when the United States authorized suits against the United States under the ICC. At that time the Northern Michigan Ottawa Association was established, which consisted of LRB, LTB and GTB, which was also a plaintiff's group since the statute the Indian Claims Commission provided that identifiable groups could file claims. I don't want to go into the detailed history of the legal history of Michigan, but essentially what happened was the...in 1871 the Secretary of Interior said that no tribes exist in Michigan and left us there to our own devices, which didn't work out too well. And so that's why there was all this later recognition and the federal statute. That Indian Claims Commission came to judgment in 1971 and then there was a statute passed in 1997 called the Michigan Indian Land Claims Settlement Act, which was the implementation of the payment of the ICC judgment that the five tribes had against the United States. So you can see how this goes back to really the origins of a lot of the tribes. Under that provision, each tribe was allowed to make payments of the judgment funds on 80 percent per capita and 20 percent for social services and each tribe elected to make their payments in identifiable ways that were diverse.

In the case of Bay Mills, they elected to take 20 percent of their ICC judgment funds, which was the Michigan Indian Land Claims Settlement Act, and to create a trust corpus from which the earnings of that trust corpus were to be used to acquire lands and the relevant language in Section 107 of the Michigan Indian Land Claims Settlement Act, which is Public Law 107.143. I don't have the statutory cite, but that's the public law number. The relevant language in that provision provided that money used to buy that land would then be held as Indian lands are held. And so there was a, in the early part of the case, there was numerous briefings on the issue as to what that meant. And Bay Mills argued that that language, as Indian lands are held, creates an automatic restricted fee status for any lands that they buy. And the reason that is important is actually another development that has taken place in Indian Country, and that relates to the Indian Land Claims, the Seneca Land Claims Settlement Act that took place in New York.

In New York, the Senecas have several large casinos. The Seneca Land Claims Settlement Act was used as the basis for arguing, that the Senecas argued that they were not subject to the after-acquired property prohibition of gaming, which is in the Indian Gaming Regulatory Act Section XX that says, ‘Any property acquired or taken into trust after 1988 cannot be used for gaming unless there's these itemized exceptions.' In the Seneca context, that exception was settlement of the land claim. They argued that the Seneca Land Claims Settlement Act, which was an ICC judgment case, was a settlement of a land claims and therefore, they could do gaming, and they did set up a number of different gaming sites. Well, it happened in a federal district court decision in New York in 2008 or 2007 that the federal judge ruled that an ICC judgment is not a settlement of the land claim and therefore the proposition upon which Seneca had predicated the authority to engage in gaming was taken away since the court ruled that the ICC was not a settlement of the land claim.

At that point, the Secretary of the Interior and the National Indian Gaming Commission revised regulations that had already been published in which they implemented Section XX of the Indian Gaming Regulatory Act. I may bounce between Section XX and 2719. 2719 is the codification of Section XX. The regulations that they implemented were federal regulations that included the prohibition that restricted fee applied to the exceptions. In other words, not only was land taken into trust, but also restricted fee, that anybody that had restricted fee after 1988 could not game on that property. After that Seneca decision in 2007, the National Indian Gaming Commission, in conjunction with the Department of Interior, revised its opinion and said that restricted Indian lands were not subject to Section XX since it was not in the statement of the language of Section XX nor was it in the legislative history. And therefore the Seneca facilities, which were restricted Indian titles incident to their unique history in New York, were therefore lawful and that's the basis upon which they continue to game that it's restricted fee title and the net effect of that revision of the federal regulations was that the decision finding that the settlement of the land claims was not applicable was obviated because there was a different basis upon which the Senecas could game.

At that point, this is hypothetical, but I just assume it occurred to somebody in Michigan that we could use the Michigan Indian Land Claims Settlement Act to say, ‘As Indian lands are held as creating automatic restricted Indian title and therefore not subject to Section XX and therefore eligible for gaming without going through the Section XX process of taking the land into trust.' That was the thought process. That's the hypothetical thought process that Bay Mills probably had. And the way I say probably had is because they did submit to the National Indian Gaming Commission a proposed amendment to their ordinance in early 2010, in the Spring of 2010, in which they made geographic specific authorization under the restricted fee theory for gaming at Vanderbilt, the area in which they did open up the casino. Just a footnote, Vanderbilt is in the gaming area for Little Traverse Bay Band, it's basically in their backyard, it's on a major highway, freeway and so it was basically going to choke off Little Traverse Bay Bands' casino patronage.

The National Indian Gaming Commission advised Bay Mills not through a letter document, but through discovery where we determined that they would not authorize an amendment to their gaming ordinance that was geographic specific to Vanderbilt. And so Bay Mills withdrew that proposed amendment, submitted a new amendment, which tracked the language of the Indian Gaming Regulatory Act 2703.4, which essentially is the same language that is used in the Indian Country definition in Title 18 or 1151, which the National Indian Gaming Commission accepted as appropriate because there's no way that they could not accept it because that's what the Indian Gaming Regulatory Act said, but that amendment did allow gaming on restricted Indian land.

So after the National Indian Gaming Commission approved that amendment on September 15th, Bay Mills on their reservation authorized gaming to take place at Vanderbilt. And surreptitiously, in the dead of night, set up a casino in Vanderbilt on a rest stop that they had bought earlier through an LLC company with proceeds from the Michigan Indian Land Claims Settlement Act, alleged proceeds from the Michigan Indian Land Claims Settlement Act, and they asserted that the act of buying that property automatically converted that building into restricted Indian title not subject to Section XX of the general prohibition on gaming on after-acquired land and that their gaming ordinance did authorize gaming under the 'Indian Lands' definition. So they opened their facility. Naturally that action caught Little Traverse Bay Band, Fredericks, Peebles & Morgan's client, off guard. It also caught the State of Michigan off guard that they were using this theory and procedure to open up a gaming facility.

Once Little Traverse Bay Band figured out the theory, there was a remedy to seek, and that remedy is in the Indian Gaming Regulatory Act and it's at 25 USC 2710.7.D.A.ii. And I just want to read the language for you on that because it's important to understand what the language says because this is going to, I'm going to make reference to it in the balance of my presentation and if you don't have it in front of you -- I was going to hand it out -- but I will just read it to you.

‘The United States District Court shall have jurisdiction over any cause of action initiated by a state or an Indian tribe to enjoin Class 3 gaming activity located on Indian lands and conducted in violation of any tribal/state compact entered into under Paragraph 3 that is in effect.'

That is the relevant statute that creates federal jurisdiction in the waiver of sovereign immunity under the Indian Gaming Regulatory Act for Little Traverse Bay Band and the State of Michigan to file an injunction action arguing that the restricted fee authorized casino gaming at Vanderbilt is done in violation of the compact. That's the dispute that took place. There was negotiations between the state and the tribe to close the facility, which went nowhere. There were negotiations between Little Traverse Bay Band and the Secretary of the Interior on whether or not this was restricted fee lands, and the Secretary of Interior did issue an opinion on December 20th that it was not restricted fee, that you could not use the Michigan Land Claims Settlement Act to automatically buy land and then to automatically assert that that becomes restricted fee eligible for gaming.

Hillary Thompkins issues a 25-page opinion that, in summary, gave in detail an interpretation of the Michigan Indian Land Claims Settlement Act and an interpretation of the restricted fee issue and opined that the gaming at Vanderbilt was illegal. Then the National Indian Gaming Commission said, ‘Well, if it's not on Indian lands under our statute, we have no jurisdiction so we have no authority to enforce the closure. We have no authority to issue a closure order because it has to be on Indian lands for us to have jurisdiction to close the facility.' So the National Indian Gaming Commission then issued an opinion saying, ‘Based upon the 'Indian Lands' determination of the Department of Interior, we have no authority here because it's not on Indian lands so we can't issue a closure order.' And so what you had was the federal government basically saying, ‘We don't have authority to close the facility so we're not going to close it,' and then in discussions with the U.S. Attorney there was another touch of ambiguity that Vanderbilt created in that the tribe, Bay Mills, is in the Western District. That it just so happened that Vanderbilt, in terms of the district's for the federal district court in Michigan, is in the eastern district and so all of the, 10 of the 12 tribes in Michigan are in the western district.

So the western district of Michigan has several attorneys that are very knowledgeable about federal Indian law and they knew the opinion that Thompkins had issued that it was not restricted Indian lands, but the people who understood it in the western district were arguing, ‘Not our problem, it's in the eastern district,' and the eastern district is in Detroit and they didn't have anybody in Detroit in the U.S. Attorney's office who understood federal Indian law and the eastern district said...I don't know what they said because I didn't have any conversations with them, but they didn't do anything. Vanderbilt was in their district and they did not file any criminal action against the tribe for violation of the Johnson Act or for gaming outside of the compact. They just let the thing set. So in the absence of the United States' failure to do anything based upon the Indian Lands Determination and the National Indian Gaming Commission's assertion that they had no jurisdiction in the western district and the eastern district not doing anything, the State of Michigan and Little Traverse Bay Band decided to do something and that was to use the provision I just read to file an injunction action against Bay Mills arguing that the gaming facility was not on Indian lands and was a violation of the compact. That's the broad setting in the case.

Now getting into the particular counts in the complaint, it's where it gets interesting. In both counts 1, 2 and 3 of both the LTBB complaint and the State of Michigan complaint, we alleged, and when I say we, the state and Traverse, Little Traverse Bay Bands of Odawa Indians alleged that the Vanderbilt facility was not on Indian lands, that it was not restricted fee, which is important for the later decision in the Sixth Circuit Court of Appeals. But we also alleged that the gaming was conducted in violation of the compact, that it was being conducted in violation of a couple different things. One, that the land was not gaming eligible. A second argument we made is that there's a provision within the 1993 compacts called Section 9, which says that for a tribe to open up an off-reservation gaming activity after 1993 it has to enter into a revenue sharing agreement with the other tribes in Michigan. That was not done so we alleged that as a cause of action. But we were relying on the proposition in that 2710.7.D.A.ii provided federal jurisdiction, created the cause of action and did a waiver of sovereign immunity against Bay Mills and that the waiver of sovereign immunity in the cause of action that we were alleging was that this gaming was in violation of the tribal-state gaming compact that Bay Mills had entered into and that Little Traverse Bay Band was a beneficiary of under Section 9 for the revenue sharing agreement. We also alleged federal jurisdiction under 1333 and for Little Traverse Bay Band we alleged federal jurisdiction under 1362. Those references are important for just a minor, but main, depending on how you characterize it, for a later development in the case.

So the hearing was held in March of 2011 after cross motions for summary judgment were entered and at the end of March the federal district judge ruled that he had jurisdiction under 2710.D.7.A.ii and that he was relying on a decision in the 10th Circuit called Mescalero, which was relying on a decision in that federal circuit called Santa Ana Pueblo vs. Kelly. And in that particular case, the New Mexico tribes had negotiated compacts with the governor, the state Supreme Court in New Mexico had ruled that the governor didn't have the authority to negotiate the compacts, and that they were therefore illegal. Some of you from New Mexico may remember this sequence back in 1997. And then the tribes sued alleging that the compacts were still in effect because there was a move to close down the casinos in New Mexico. One of the questions in that case was whether or not there was jurisdiction in the federal court to hear this cause of action and Santa Ana and Mescalero held that there was jurisdiction to determine the validity of the compact.

Paul Maloney, the federal district judge in the Michigan/LTBB vs. Bay Mills Case, relied on Mescalero for the proposition that there is jurisdiction under the Indian Gaming Regulatory Act to enjoin gaming that is not consistent with the compact, that is not in conformity with the compact and he entered an order to that effect. Bay Mills argued that Judge Maloney got it wrong, which he acknowledged in an amended opinion, that Section 1331, in the early part of the opinion, he also said that 1331 provided jurisdiction and that 1362 provided jurisdiction. Both do provide jurisdiction, but they do not provide a waiver of immunity of Bay Mills. And so he amended his opinion saying there was no waiver under 1331 or no waiver under 1362, but there was a waiver under 2710.D.7.A.ii on the language that I read and that there was a cause of action created and that Bay Mills had violated the compact.

Now Bay Mills makes much of the case, which has merit to it that the Mescalero opinion confused the standards in compact abrogation with compact waivers. The opinion in the 10th Circuit said to the effect that a tribe impliedly waives its immunity when it enters into gaming under the Indian Gaming Regulatory Act. That's not the standard. The tribe doesn't impliedly waive, it's Congress [that] has to abrogate the immunity. Nevertheless, the opinion supporting Mescalero, the Santa Ana Pueblo opinion, does hold for the proposition that there is jurisdiction to determine if the compact is in effect and we were arguing a related concept to that that the compact in Michigan had been violated and that this gaming was taking place in violation of the compact. It eventually...the case went to..."

Raymond Austin:

"We have some people in here who are not law students. Can you explain to them what sovereign immunity is?"

John Petoskey:

"Sovereign immunity is that the government -- whether it's federal, state or tribal -- cannot be sued without its consent and that consent comes in two forms in reference to Indian tribes. It comes in the form of Congress doing what's called a congressional abrogation by statutorily saying that the immunity of the tribe is abrogated by an act of Congress. The other way sovereign immunity can be dealt with is by the tribe making an explicit clear statement that it is waiving its immunity for purposes of litigation and tribes do do that all the time. They pass resolutions saying, ‘We're waiving our sovereign immunity for x, y and z for the purpose of a, b and c.' But there's two ways and there are two sets of cases that interpret what is abrogation, when Congress acts and sets standards that you have to act clearly, it has to be explicit, it can't be implied. Congress clearly has to establish saying, ‘We are waiving the immunity of the tribe for purposes of the following area.'

Congress waived the immunity of tribes in the Indian Gaming Regulatory Act in the provision I read where it says, ‘Any cause any initiated by a 'state' (Michigan), ‘Indian tribe' (Little Traverse Bay Band), ‘to enjoin Class 3 gaming activity,' (the injunction was again Bay Mills gaming activity), ‘located on Indian lands,' (Bay Mills alleges they're Indian lands, the United States through Thompkin's opinion says it's not Indian lands and the State of Michigan and LTB says it's not Indian lands, that the restricted fee, automatic restricted fee doesn't create Indian lands under the Michigan Indian Claims Settlement Act). But I want to emphasize that issue has not been even litigated or determined by cross motions for summary judgment. That's still a pending motion. That's still in the case because this case went up on interlocutory appeal on the issue of the injunction. So continue to read that -- ‘located on Indian lands and conducted in violation of any tribal/state compact' (and so we're saying, ‘Well, this is in...LTB is saying it's in violation of state compact because it's not on Indian lands and it doesn't comply with Section 9 on the revenue sharing agreement.') ‘Entered into under Paragraph 3 that is in effect,' (and Paragraph 3 is the provisions that define how the state and the tribe enter into tribal/state gaming compacts and the question is, ‘Is the compact in effect?') That was the issue in Santa Clara is that, was the compact...that was the issue in Santa Ana: is the compact still in effect? And the court in Santa Ana determined that it had jurisdiction to determine whether or not the compact was in effect and we argued the corollary concept or related concept that the court has jurisdiction to determine whether the compact is being breached or violated. We argued it was being breached and violated by gaming in areas that were not Indian lands, 4C, and also gaming was taking place without the condition preceding of the revenue-sharing agreement.

Bay Mills, on the other hand, was arguing that if you look at the allegations and the complaints of the state and the tribe, they are alleging that the gaming is not taking place on Indian lands. So if it's not taking place on Indian lands and you read the complaint and you take the complaint at face value, then they're saying that the court doesn't have jurisdiction to hear the case because it's not on Indian lands. Essentially what the National Indian Gaming Commission said, if it's not on Indian lands, NIGC doesn't have jurisdiction to hear the case. Bay Mills was essentially making the same argument -- that you had to fulfill all of the condition precedence in 27.10.7.D.A.ii in order to have jurisdiction in the federal court for the case to proceed and to have a waiver of sovereign immunity. And if it wasn't on Indian lands, even though you have the irony of the situation that Bay Mills is arguing it's on Indian lands and LTBB [Little Traverse Bay Bands of Odawa Indians] and the state is arguing that it's not on Indian lands, if you look at rules of pleading and you construe the pleading allegations of the tribe LTBB made and you take them at face value, they are saying that the gaming's not on Indian lands, therefore they're not fulfilling all of the condition precedence to have jurisdiction and the waiver of sovereign immunity for the case to proceed. That in a nutshell was the decision of the Court of Appeals, that there was no jurisdiction, there was no waiver, that the cause of action that was alleged by the LTBB and the state was defective because they said it was not on Indian lands.

Now in opposition to that, the state argues that counts 4, 5 and 6 allege that acts occurred, the authorization of the facility at the Bay Mills Reservation to open, those were on Indian lands and that that is part of gaming activity. In order for gaming activity to take place, you have to convene the council, convene the Gaming Commission, issue the license and that activity is taken place on Indian lands and that's part of gaming activity, that's just not card dealing that is gaming activity, it's also regulatory actions that the tribe has taken and that is where the gaming activity took place so it's still on Indian lands. The court didn't accept that for a couple different reasons. One was that the amendment to that complaint came in after the interlocutory appeal had been filed. Keep in mind they filed it in the spring of, the interlocutory appeal, in the Spring of 2011 and the state amended its complaint and made it an ex parte proceeding against the tribal council alleging the authorization taking place on Indian lands in August of 2011 at which time the interlocutory appeal was already in the Sixth Circuit and so the Sixth Circuit in part recognized that those were not part of the proceedings directly in front of them.

So the nutshell of the holding was a remand of the case to the district court to hear counts 4, 5 and 6 and to also deal with the underlying issue of whether or not the Michigan Indian Land Claims Settlement Act in fact creates restricted fee titles by operation of law the way I outlined it at the beginning of the presentation. The State of Michigan upon remand then petitioned the Supreme Court for cert to review the matter arguing two different things in its cert appeal. One, that the Sixth Circuit's reading of 27.10.7.D.A.ii to create the five-condition precedence was incorrect in the sense that, essentially that you could leave out Indian lands and you could focus on whether or not the gaming is in violation of the compact that is in effect. And there's a couple circuits that hold that you can address a compact for...there is a waiver if you're addressing whether or not the question is, is the compact in effect.

Now that cuts against a strong standard in abrogation of tribal sovereign immunity with explicit language, because that is holistic interpretation of the statute saying when you look at the remedial structure of the statute in total there has to be a way to get this issue in front of a federal district court so that the court can address the issue. And so the state is arguing in part that the matter should be addressed by the court, in that it met its burden to meet [27.10.7.D.A.ii] under the provisions of the compact being in effect and other case law in other circuits that have held that the question of whether the compact is in effect is sufficient for purposes of jurisdiction under 27.10. But then the state goes on further and says, ‘Regardless of that, if that is not true, if you find that the 6th Circuit is correct,' and it's a very strict interpretation on what abrogation is and you have to meet all the condition precedence of the five elements, ‘then the United States should review its sovereign immunity doctrine in case law and opine that the scope of sovereign immunity does not extend to certain categorical cases.' And it argues based upon CNL, a 2001 decision, Kiowa, a 1998 decision and Citizen Potawatomi, a 1991 decision, which were the last three principle decisions on sovereign immunity, that the court should adopt a standard that, ‘off-reservation commercial activity is not subject to the protection of sovereign immunity.' That's why the case has, to the degree it has, received significant review by Indian Country is the consequence of that decision, which are numerable, which are quite extensive.

So what we did this morning, Ryan Seelau and myself, the person at the end of the table here, we put together a chart. Once you have this background of things that potentially could happen in this case and what the likely repercussions for the tribe are and how tribes should consider responding at this point in time. Keep in mind that this, when I say this point in time, the Bay Mills responsive brief has still not been filed, it will not be filed until October 24. The brief for the state was only filed on August 30, actually September 4. They were four days late, but it was filed on September 4. There were 17 attorney generals filed briefs in support of the State of Michigan and the briefs in support argue that the Supreme Court should simply abolish sovereign immunity and they go to the extreme.

There's one brief in particular, the brief of Oklahoma, that has a footnote in it, footnote number four, that highlights all of the problems that are associated with sovereign immunity defense by tribes and basically this is the tax cases, the payday lending cases, and then there are three other cases in the country that have restrictive fee type cases also. There's the Hobie case in Oklahoma, the PCI case in Alabama and then Saulte St. Marie, getting back to Nottawaseppi, Saulte St. Marie has also asserted that they can create an off reservation casino in Lansing, which is the state capital of Michigan. They have an option on land and they are presently in the process of trying to put that land into trust, arguing that once it goes into trust under the Michigan Indian Land Claims Settlement Act that it then becomes gaming eligible and they would be allowed to do gaming. It's a related case.

And so the state's briefing chief is all this parade of horribles and they're arguing first that Judge Kethledge on the Sixth Circuit, who wrote the opinion, got the interpretation wrong on 27.10.7.D.A.ii that you had to fulfill all of the five requirements and that the pleadings did not fulfill the requirement of on Indian lands and therefore Kethledge dismissed the case. The state is arguing that Kethledge is wrong on that, that you can read 27.10 in an expansive manner on whether or not the compact is being complied with and if the compact is being breached, that is sufficient for purposes of the waiver of sovereign immunity in federal jurisdiction and that argument of the state is predicated upon a holistic reading of the statute.

Now that is contrary to the general proposition that most Indian advocates have that there should be explicitness in the abrogation language for taking the sovereign immunity away from the tribe. In fact, that was the rationale for Little Traverse Bay Band, who is our client in the case, not to appeal the 6th Circuit decision because if you read the decision, it sets up a very strong restatement in standard that in order for Congress to abrogate sovereign immunity, it has to be explicit and every element has to be met. And so the LTBB tribal council said, ‘That's not bad. Although we lost, that's not bad,' and so they didn't appeal and they are not in the Supreme Court and they're not taking a position because they in fact thought the Sixth Circuit decision, even though it went against them, was not a bad decision. There's a caveat to that. The state had indicated in the course of the proceedings that if Bay Mills did open up their facility once the injunction was vacated that the state would do a criminal action and would do a forcible closure. So the casino has never really opened back up even thought he injunction has been vacated. LTBB has not appealed because they thought Kethledge got it right. The State of Michigan has appealed because they thought Kethledge got it wrong, that you should read the statute as expansive and that it does provide for a waiver of immunity and the statement of a cause of action on the basis of the analysis of whether or not the compact has been breached.

Then the position of the Solicitor General -- who I have not mentioned at all in this proceeding -- but the Solicitor General was invited to file a brief and the position of the Solicitor General was is that Kethledge got it right, in terms of what is an abrogation of immunity, and therefore it should not be appealed. But it puts the state in an awkward position because it still has no remedy and when you read the state's brief, you can attack it for many different things, but it does present a good argument in terms of the state saying, ‘What are we to do because this casino opened up in our jurisdiction, we have to have some sort of remedy,' and they touch all of the buttons that the parade of horribles that have been identified in CNL, Kiowa, and Citizen Potawatomi over the last 20 years about the terrible things that happen when tribes assert sovereign immunity in the context of off-reservation commercial activity. And this is a principle example of a tribe doing that: opening a gaming facility where you have the illogical consequence that the state only has jurisdiction to enforce a breach of the compact when the gaming facility is opened on the reservation and it doesn't have jurisdiction when the casino is opened off the reservation hundreds of miles away from the tribe's reservation and it has no remedy and the United States is not doing anything to address the question. And so it has a very compelling, if you will, case to make that there has to be some sort of remedy. And if you're Justice Thomas certainly, Justice Scalia, Ginsberg, and to a certain extend even Breyer, you're going to be sympathetic to those arguments because they've already indicated in previous opinions that they are sympathetic to those arguments, and so you know that for the justices, based upon that past opinion, are sympathetic to the state's position. There are new justices on the bench, but it only takes five to create a bad case decision from the current case that is pending.

So what has been going on to resolve the issue? On a national basis, NCAI [National Congress of American Indians] and the Native American Rights Fund have met and tried to fashion a remedy similar to a remedy that was done in 2010 when there was a similar case in front of the Supreme Court and to resolve that case, the tribe waived its immunity and so the matter was vacated and it was remanded to the lower court to resolve the issue. Here Bay Mills has categorically stated they are not going to waive their immunity. So it's not going to be resolve on a waiver of immunity and in my view, even if they did waive their immunity, I don't think that the Supreme Court would allow the matter to be vacated and remanded because they would recognize that that was the same procedure that was used in 2010 so they would continue to maintain the case. It's all hypothetical, but in any event, Bay Mills is not waiving its immunity. Another thing that could be done that was suggested in the Solicitor General's brief is that Bay Mills could resubmit their ordinance on a geographic specific area for Vanderbilt to get an Indian lands opinion from the National Indian Gaming Commission, but they're not going to do that. Bay Mills is not going to resubmit its ordinance. It already did that once and had a negative determination so they're not going to do that. Kethledge also said that the United States could resolve the issue by filing criminal actions against the individual tribal council acting in violation of federal gaming laws, particularly the Johnson Act, but the western and eastern district of the United States Attorney's office is not going to do that. There's not even any discussion of that, particularly now since the briefs have been developed and there is an argument that Bay Mills has, that this is a good faith argument that this is restricted Indian lands and therefore by definition, if it is restricted Indian lands, under the Seneca decision it would be gaming eligible, therefore it would not be in violation of the Johnson Act, therefore it would not be in violation of the federal illegal gambling laws. So the eastern and western district of the United States Attorney's office is saying, ‘We're not going to do anything.' So the only alternative left is a decision by the Supreme Court on the outcome of the questions that are presently pending before it.

And so getting back to Ryan's table here: what are the potential outcomes? And we characterized these as sort of a hierarchy of horrors and it goes from the least worst outcome to the worst outcome. So the potential outcome with the least consequence to Indian tribes is that the case is remanded based on statutory interpretation of 1331 and 2710 that the off-reservation gaming site violated the compact. In other words, saying, ‘We are reading 2710 in an expansive manner. You don't have to fulfill all of the elements. It's a violation of the compact. That's sufficient. There's federal jurisdiction. There's a waiver of sovereign immunity and abrogation, negative on that.' It makes waivers by implication rather than by explicitness. The other thing that the remand does is that you get to the merits of the question of whether or not this is restricted fee, does restricted fee exist would be one answer that restricted fee does exist and then there are consequences that flow from that. The alternative is restricted fee does not exist. If it does not exist, then it's not gaming eligible then the thing is closed down and it's all a civil matter. That is you get to the merits of the actual problem. This means the violation of compact is sufficient to complete the requirements of 2710, that an abrogation of sovereign immunity is effective by alleging compact breach for cause of action, reverses the 6th Circuit decision on counts 1 through 3 and the 6th Circuit's five part test of 2710.D.7.A.ii. It was a five-part test that they basically construed that provision and laid out five standards that you have to meet in order to get federal jurisdiction, cause of action, and a waiver of sovereign immunity. So this is -- I know I didn't want to say any editorial comments --but it's beyond me why Bay Mills is moving the ball...this doesn't move the ball along anyplace, it doesn't move the case forward at all even with the least likely outcome. Nothing really goes forward so I don't know why they ended...never mind, I won't go there.

Case's likely repercussions for tribe -– case remanded to be determined on merits whether Public Law 105.143 Section 107.A creates restricted Indian fee, so that's the merits of the question. If it's remanded and you determine the merits of the questions, the repercussions are minimal with regard to sovereign immunity, but if restricted fee exists then the effects depend on how many restrictive Indian fee cases are ongoing in the U.S. This is an interesting question. You really have to know a lot of Indian law for this. The states with restricted fee titles are right now in the universe of Indian Country are relatively limited and those states are Oklahoma, New Mexico, Alaska and New York. If you were to look at Indian titles and you were trying to find out who has restricted fee, you would...the majority of them would appear in Oklahoma, New Mexico, Alaska and New York and that's because of the history of federal Indian law. In Oklahoma, it was the allotment processes and the Civil War and the mass movement of Indians into Oklahoma, that there are some areas in Oklahoma that do have restricted fee and you'd look at the particular statutory history of each individual tribe to determine whether or not there is restricted fee. New Mexico, it's the pueblos that have restricted fee because they were...had fee simple under the Treaty of Guadalupe Hidalgo, through grants through the country of Spain. In Alaska, there's a...which is for all practical purposes there's no market, but it's an interesting case up there because it was the variable public policy of the federal government that created restricted fee up there at various times in trying to figure out how to deal with Alaskan Natives, so there's still a lot of restricted fee in Alaska. New York has restricted fee because of its history as one of the original 13 colonies and California has restricted fee because of its similar history of the Treaty of Guadalupe Hidalgo and the grants from Spain. Arizona may have it, but I'm not that familiar with Arizona. But the whole point is if restricted fee does exist, then it's not subject to Section XX, then that's a gold mine for people that are willing to find the tribes sitting on restricted fee and that's going on right now. That's what the Hobie case is. It's a Muscogee restricted fee allotment located 20 or 40 miles away from the central government in which a town, and you have to look at the Oklahoma Indian Act, but Hobie is that type of case of restricted fee. So is the Alabama case with the Poarch Band [of Creek Indians] finding restricted fee down on the Gulf Coast. And so a favorable decision would be potentially more markets for Indian gaming because restricted Indian fee is not subject to Section XX. The thing there is to wait and see what happens, determine whether tribes have restricted fee.

The next consequence is case is remanded to determine counts four through six, which are the state law counts that are still pending, and that is that the activities of gaming took place on the reservation through the authorization, through the tribe passing a motion to authorize opening a gaming facility at Vanderbilt. The fifth count is the state law count alleging discouragement of all profits, which would mean all the machines and all the income, which is a couple million dollars, and the sixth count is a nuisance count under state law. But those counts are brought against the individuals in the amended complaint that the state filed in August of 2011 in which the executive council members of Bay Mills and the individual gaming commissioners of Bay Mills were sued in their official capacity under individual...under the Ex Parte Young version. Basically, it's implementing Ex Parte Young. The Supreme Court is saying that federal jurisdiction exists and that there's a way around tribal sovereign immunity based on the principles of Ex Parte Young.

And then the likely repercussions to the tribe on that is Stephen's descent in the CPN case, expansion on Santa Clara Pueblo's reference to Ex Parte Young. Take you all the way back to 1978, when Santa Clara was decided there was that subtext that Justice Marshall had, that although the pueblo was immune from suit that the individual council members were not immune from suit and they could be sued under principles of Ex Parte Young, but the important point in that was limited by Marshall further saying that the Bill of Rights implied cause of actions do not exist, that there has to be an explicit statement of the cause of action for habeas corpus. That was the only cause of action that existed under that ruling. So taking you a little further back to 1968 when the Indian Civil Rights Act was passed between 1968 and 1978 when Santa Clara happened, there were literally hundreds, but there were a number of decisions in which tribal members sued under quasi-1983 claims against their tribal officials and had a developing case law in federal court that was similar to 1983. And all of that stopped in '78 when Santa Clara was decided and said that you can't imply a cause of action under the Bill of Rights similar to 1983 for tribal council official action or the individual action of tribal members, but I think that will come back into existence under this new doctrine, it's potential, that's a likely repercussion that will happen. Another likely repercussion is that CNL Enterprise clearly suggested that off-reservation commercial activities is on shaky ground which was the 2001 last sovereign immunity decision and said that off-reservation commercial activity is probably going to be subject to a common law finding that is not covered by the immunity of the tribe. That's the clear trend of Ginsberg's statement of the Kiowa decision in 1998 by Justice Kennedy, that they're going to expand commercial activity off-reservation as categorically not being protected by sovereign immunity, which it is now.

So what do you do to get ready for that outcome? How should tribes consider responding? Get ready for the lawsuit against them by their own citizens. In other words, you're going to be sued by your own citizens. In other words, all that case law from '68 to '78 on tribal 1983 actions will probably now come back into existence. Some people, dissidents in the tribe, will say, ‘Hey, that's all right with me.' Other people will say, ‘Well, it's part and parcel, that's going to be a big problem for the tribes.' But the councils should get ready for suits by their own citizens and non-citizens who will be suing under the Indian Civil Rights on a theory that the ICRA creates implied cause of actions like it did prior to Santa Clara and should prepare.

So what should the council do? It should prepare declaratory injunctive and monetary damage statutes that limit the scope of the remedy. It should pass statutes that say, ‘We author...we waive our immunity for declaratory and injunction actions that violate 1983-like rights of our tribal citizens, but we limit that to prospective relief and no monetary damages.' If you get there before they do it, I think you will survive, but if you don't do it, what will happen is you'll have that decision and then people will jump in court and you won't have the...then you can't enact the statute after the case has already been filed. So you should be proactive and enact these protective statutes that do waive sovereign immunity, but limit the amount of damages. The other thing you should do is write insurance proceeds to cover the new level of risk. Amend existing ordinance to waive immunity for violations of ICRA, but limit the remedies to declaratory and prospective injunctive relief.

On the next scale of hierarchy of horrors that could happen in the decision is that the judges will say that Ex Parte Young-like relief applies to commercial plus off reservation or they could say Ex Parte Young relief applies to commercial plus on-reservation or off-reservation, or they could say, number C, that Ex Parte Young applies to commercial and governmental plus on reservation and off reservation. That would be the worst category going just completely down the line all the way. In this scenario, it is likely the Supreme Court would eliminate sovereign immunity for all on/off-reservation commercial activities and retain sovereign immunity for on reservation governmental activities. I think that's a very likely outcome. I think the Supreme Court will say, ‘We're going to eliminate it for off-reservation commercial activities, but we're going to retain it for on reservation commercial and governmental activities.' That's a likely outcome.

In the next category of things that could happen is number four, whether sovereign immunity is a federal common law doctrine, this gets into who controls federal Indian law, this is in deference to Frank Pommershein's law review articles about whether plenary power is located in Congress or plenary power is located in the court and the point here is that the Supreme Court may assert that it has plenary power to amend its common law and that it doesn't have to wait for Congress to abrogate a statute and they're saying, ‘If Congress is not going to do it, we're going to do it.' The Supreme Court could essentially say, ‘Under common law, we control federal common law, sovereign immunity is a creature of federal common law, therefore we can eliminate it if we want to eliminate it.' And that's in direct opposition to the current rule, is that only Congress can eliminate it under its plenary authority and so that creates plenary authority in the tribal or in the Supreme Court to eliminate this and not through Congress. That would be extreme, but it's possible that that could happen. If the Supreme Court does that, they could eliminate all or any part of the doctrine based on commercial or governmental distinction, off-reservation, on-reservation distinction. In this scenario, it is likely the Supreme Court would eliminate sovereign immunity for all on- or off-reservation commercial activities and retain sovereign immunity for on reservation governmental activities. This is a little more extreme from the Ex Parte Young doctrine because Ex Parte Young assumes that sovereign immunity still applies, but you get around it through the fiction of suing the individuals and the Supreme Court says, ‘Wait a minute, Ex Parte Young doctrinally is for federal law is to be imposed against state officials who are protected by the 11th Amendment. Why are we using the constitutional analysis that doctrinally does not fit to the circumstances of a tribe, which doesn't have the 11th Amendment, which is not part of the constitutional convention? So there's really no reason to go through Ex Parte Young, let's just go to home base and eliminate sovereign immunity and not create the Ex Parte Young exception, which is a fiction to begin with, and it's more of a fiction on a fiction if you're applying a doctrine to a tribe that's not part of the constitutional convention and not protected by the 11th Amendment. Why even go down that street because it's just fiction on fiction?'

So what is the likely repercussions for the tribe? Eliminate sovereign immunity in all contexts including and then the repercussions for the tribe is that general federal statutes, which are numerous, there's probably about 15 general federal statutes that govern the employment relationship. There's for example the Fair Labor Standards Act, the National Labor Relations Act, the Age Discrimination Act, the Equal Employment Opportunity Act -- all of these are general federal statutes that currently do not apply to Indian tribes because they're general federal statutes and they don't specifically identify tribes. I know there is case law out there in which some cases opine that they do apply by implication, but there's other cases that strongly hold these general federal statutes do not apply, but if you eliminate sovereign immunity, that's going to be an impact on these general federal statutes because there's nothing stopping the application then. If there's a general elimination of sovereign immunity, then there's nothing stopping the application of these general federal statutes. And then the elimination of general sovereign immunity again would create the Bill of Rights cause of action, so the 1983 actions for tribal government activities. And then the elimination of sovereign immunity will create leverage relationships. It will change the power dynamic between tribes and the state. The tribes' leverage will dramatically decrease, the state's leverage will dramatically increase and this will impact gaming compact negotiations, negotiations or cases related to tax, tobacco, gasoline, sales, use and income, payday lending, gaming, and other cross-governmental relationships that tribes have with states where sovereign immunity is one of the elements in the leverage matrix between the negotiating parties. If it's eliminated, the leverage matrix is gone, and the balance of power tips in favor of the state dramatically.

So what do you do to get ready? Well, you draft statutes mainly. You draft tribal statutes and those tribal statutes would get to that state before the Supreme Court says that new world of Indian law exists and those tribal statutes would waive immunity for contracts towards and like I said earlier limit the scope of the remedy. Those statutes already exist. Some tribes, the tribe I work for, Grand Traverse Band, has already done that. It has...not because of these cases, but because of other relations, we have a general contract waiver statute, we have a waiver of immunity for tort cases, but we limit the scope of the remedy to expectancy damages on contracts, we eliminate consequential damages, under tort we provide for compensation and for pain and suffering at 1.5 of the actual physical damages that the individual suffered on the tort. So there is a remedy there and what is more important, that remedy is subject to a determination by an actuarial entity, an insurance agent, to measure the scope of the risk so we can buy insurance to cover the scope of that risk. And in our experience, doing that actually lowered our insurance premiums because the scope of the risk was known rather than in a situation where you say, ‘We're going to depend on immunity,' and the insurance was high because the level of the risk was unknown. But I would urge tribes to write statutes that essentially waive immunity and then implement their own tribal remedies for that subject area.

The other area that will be subject to attack is trust funds that various tribes have and the thing that tribes would need to do is basically hire a great trust attorney. You're never going to get at Caroline Kennedy's trust account if you're a creditor of Caroline Kennedy because she has a great trust account with great trust protections. So you need to rewrite trust language to protect the trust accounts of the tribe, which can be done.

Okay, the last -- complete elimination of sovereign immunity of all activities based on federal common law and the courts warrant a judicial power and eliminates common law, create a doctrine sovereign immunity for all on- and off-reservation, all commercial, all governmental activities. Those, in a thumbnail, I hope, is the case. Do you have any questions?"

Audience member:

"What are the chances that you'll have a split on any of these issues, that you won't actually come down with an opinion?"

John Petoskey:

"I think it's minimal. It's very minimal. Four people have already opined where they're at and it's Roberts has not written in support of Indian tribes of the 10 decisions, and so if you just count heads and count votes that's five."

Robert Hershey:

"Hi. Welcome. I'm sorry I came in late. I was in another meeting. If you go back to the opinion in Kiowa, you'll see that the court's displeasure of that on the doctrine of sovereign immunity. It was a 6-3 decision, but even though the people voted to sustain the doctrine, they expressed great doubts about it."

John Petoskey:

"Oh, yes, Kennedy did."

Robert Hershey:

"Yeah, Kennedy did. So I think it would be...I think something is going to happen here for sure. The ICRA [Indian Civil Rights Act] action, the ICRA says that no government in the exercise of its power shall do something. So it doesn't apply to actions against individuals in court, and that's how I can see why maybe they want to go ahead and have some sort of cause of action against individuals, but then you have some problems. You have the legislative immunity of the legislature and the tribal councils doing that. And you also have another interesting twist too is that a number of tribes have put the ICRA into their constitutions. So it's not just a federal statute, but it's a tribal constitutional right. So I think this is a significant case like you said."

John Petoskey:

"Yeah, I agree with you. There is still legislative immunity that you would argue, but most 1983 actions are against executive action implementing some legislation. And all I'm saying is that there's going to be a tribal law 1983 jurisprudence developed if the sovereign immunity is done away with."

Robert Hershey:

"I think so. So you're advocating like a tribal tort claims act."

John Petoskey:

"Right, a tribal tort claims act because if it's going to happen by judicial common law, the only way you can control that is by tribal statutory law which limits the scope of the remedy. Otherwise you have somebody filing a case seeking a multimillion dollar judgment for an executive action. In the absence of a statute that limits it, there's a stronger argument that it should go to judgment and you can't retroactively legislate once the cat's out of the bag."

Robert Hershey:

"Right. One more little point then. So if sovereign immunity is a judicially created common law doctrine, then what does this do to the immunity of the United States? Do you think the United States is covered because it has a federal tortclaims act?"

John Petoskey:

"Oh, yes. The United States is covered because of the federal tort claims act. There are interesting doctrinal issues in sovereign immunity that relate to, and I tell the story and I hope you wouldn't mind me saying this, but I'll tell the story in the relationship of Ed DuMont. Ed DuMont was an Assistant Solicitor General. He works for WilmerHale, which is part of the Supreme Court bar. One of the sad things that has developed over Indian law in the last 20 years is that there was a cadre of about 15 Indian lawyers that were Indians that actually had argued in the Supreme Court over the last 40 years, and they had actually made presentations to the Supreme Court on a wide variety of cases.

Now the Supreme Court Bar is controlled by professional litigants who are very good and they typically come out of the Solicitor General's office and then go into Supreme Court practice as their specialized area of practice. Ed DuMont is one of those individuals. He's a nice guy. He's a great guy in fact, very personable, very bright. He did the Seminole case on behalf of the United States as the Solicitor General arguing that Congress had the authority to abrogate the immunity of the State of Florida and that was held not to be valid, that the 11th Amendment was stronger than basically the Indian Commerce Clause and that Congress didn't have the authority to override the 11th Amendment and the remedy of suing the state in the Indian Gaming Regulatory Act was found to be unconstitutional. Ed DuMont also argued the Kiowa case and that was -- Seminole was 1996, Kiowa was 1998 -- and he argued on behalf of the United States for sovereign immunity in the Kiowa case. Now Ed DuMont is arguing on behalf of Saulte St. Marie in a case that Michigan has filed against Saulte St. Marie, which is the parallel case to the Bay Mills case of whether or not restricted fee lands can be created by the Michigan Indian Land Claims Settlement Act.

So just in that one person, you have a person that has taken all of the various positions in sovereign immunity litigation and jurisprudence and going forward in different capacities. I'm not saying that as a criticism. I'm just saying that as a compliment because it gets very complex. It gets very complex to argue sovereign immunity cases when you're arguing Supreme Court cases for states, when you're arguing it for the tribes, and when you're arguing it for the state. And from the import of your question, you're trying to connect, ‘if they do this to the tribes what implication is that going to have for the states?' And I'm certain there are implications, but you would need somebody like Ed DuMont, who has been on both sides of that question to answer something like that."

Ian Record:

"I had one follow-up question in terms of this category of how tribes should consider responding. You talked a lot about creating laws and statutes and so forth to sort of get ahead of the game on this and sort of do a lot of the legal infrastructure development work that Grand Traverse has already done. But if any one of these say higher-scale horrors takes place, wouldn't it also behoove tribes to seriously consider a dramatic investment, increasing their investment in their justice systems because you can imagine for instance if a lot of these ICRA cases..."

John Petoskey:

"Oh, yes."

Ian Record:

"...would be heard in tribal court, it's sort of one thing to, as you well know, it's sort of one thing to write the law and ratify it, and quite another actually to live it and enforce it. And that's...you can see a ripple effect in the entire justice system, wouldn't you?"

John Petoskey:

"I agree. It's an unintended consequence. I don't know if it was intended or unintended, but one consequence would be these 1983 tribal court causes of actions that may be resurrected that were in existence from '68 to '78 that went out of existence with Santa Clara. And if Santa Clara is overruled, then obviously tribal citizens and non-citizens would argue that the overruling of Santa Clara brings back these implied cause of actions in the Indian Civil Rights Act, which are essentially Bill of Rights-causes of actions against executive actions by the tribal executive department."

Audience member:

"So does that mean you predict the extinction of qualified immunity in all of those other forms of immunity, this could be like a floodgates argument where you..."

John Petoskey:

"Yes, it is a floodgates argument, but as the person in the back said, there's still a lot of other types of immunity. There's legislative immunity, but the jurisprudence that developed from '68 to '78 was stopping executive action by tribal council officers or departments where people alleged that the action was in violation of their civil rights. It's a basic 1983 action."

Robert Hershey:

"Or a Bivens."

John Petoskey:

"Yeah, a Bivens, yeah, more like Bivens, unknown agents, yeah."

Ian Record:

"Any other questions for John?"

Raymond Austin:

"One question is where would these actions be filed? Would they be filed in federal courts or would they be filed in the tribal courts? For example, if the Supreme Court waives tribal sovereign immunity in this case, then 1968 Indian Civil Rights Act...if it goes back to implied cause of action as you say, then where will these actions go? Would it go to federal court or would it go to the tribal courts?"

John Petoskey:

"I would say National Farmers controls, the exhaustion of tribal remedies first and if you have remedies that are there, you've got a stronger argument too. Exhaustion of tribal remedies is federal common law and that's I would argue and have argued that exhaustion of tribal remedies is something that cannot be waived by the courts or the parties and that the parties are mandated to exhaust the tribal remedies prior to going to tribal court."

Robert Hershey:

"And then you would have a Bivens-type action in federal court as opposed to an RCRA action, but you still have habeas ..."

John Petoskey:

"Right. So initially I would say tribal court under National Farmers, of exhaustion of tribal court remedies. Remedies are available there. The tribe enacted an ordinance where it had a tribal torte claims act or a tribal civil torte claims act similar to 1983 empowering remedies for breach of civil rights of tribal members but my advice is that the remedies are limited to prospective relief or injunctive relief and not limited to... and monetary damages are excluded. And most courts, whether they're state, tribal or federal recognize that standard because it protects the public treasury of the government, while providing a remedy to the litigant."

Ian Record:

"Well, thank you everybody for coming. And as I mentioned, this will be online sooner rather than later, we hope. We also are working, Ryan and myself and John in consultation with some others that are closely following this case to try to essentially turn what John has shared with you today into some sort of written output that we can share with the public. And we're not sure exactly where and when, but given the urgency of this case, we hope to get something out to the public pretty soon. So we'll keep everybody posted on that. So thank you, John."

John Petoskey:

"Thank you." 

John Petoskey: The Central Role of Justice Systems in Native Nation Building

Producer
Native Nations Institute
Year

John Petoskey, citizen and longtime general counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses the key role that justice systems play in Native nation building, and provides an overview of how GTB's distinct history led it to develop a new constitution and system of governance from the ground up in the 1980s, highlighted by an independent, fully developed justice system.

Resource Type
Citation

Petoskey, John. "The Central Role of Justice Systems in Native Nation Building." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 1, 2013. Presentation.

Manley Begay:

"I'd like just to welcome you. For those of you that don't know me, my name is Manley Begay. I serve as a social scientist and a senior lecturer in the American Indian Studies program and also teach a course in nation building, and so I have several of my students here from that course as well. And for those of you that are visiting, welcome to the American Indian Studies program, and Harvill 332, and to this lecture by John Petoskey; tribal attorney for many, many years with the Grand Traverse Band of Ottawa and Chippewa Indians. But before we do some formal introduction I wanted to just recognize his wife also has joined us, who's also a former council member as well. So welcome to Tucson and to the American Indian Studies program. Ian Record from the Native Nations Institute has been given the task of introducing John. John and I have known each other for many years and it's been awhile since we've seen each other. And Ian serves as a manager, one of the managers for the program at NNI and you probably see his name all over the internet. He's put together quite an interesting curriculum around issues that relate to Native nations and they do some really interesting work at the Native Nations Institute. He's also a graduate of the American Indian Studies program and he told me to say he's the first White guy to get a doctorate in AIS. He has the dubious distinction of being the first. It's good to welcome you back to AIS. So I'll give the floor to you."

Ian Record:

"Thank you, Manley. It's good to be back here. This used to be my second home, Harvill, and I don't get over here all that often. As Manley mentioned, my name is Ian Record. I got my doctorate... both my master's and my doctorate in Indian Studies, finished my doctorate in 2004. And I've been working with the Native Nations Institute since 2001 when it was first established, first as a graduate student and then I was hired full time. And one of the programs I've been involved with helping develop and get off the ground is the NNI Indigenous Leadership Fellows Program. We established it in 2008 and to date, including this week, we now have five Indigenous Leadership Fellows that have come to Tucson to share their wealth of knowledge and experience with not only NNI, but the entire U of A community. And as you see in the back, we're video recording this talk because the idea of this program is also to share that knowledge, wisdom, and experience with the outside world, with the general public at large and obviously specifically tribal communities and we are very honored to welcome John Petoskey this week to serve as our latest Indigenous Leadership Fellow. We've had John on our radar for quite a long time. Manley mentioned that he goes way back with John. John is one of the first people that Manley and Stephen Cornell and Joseph Kalt ran into when they started doing this on-the-ground research about nation building and about why some tribes are really moving forward while they continue to struggle in terms of achieving their goals. We're lucky to have John with us here this week. He's doing a talk here today obviously, but he's also doing another talk tomorrow over at the U of A Law School and I have some flyers here in case anyone's interested in learning about that, you may have seen it on email. It's tomorrow afternoon over at the Rountree Building and he's going to be talking about the Bay Mills case, which a lot of you have probably seen if you read Indians.com or go to Indian Country Today's website. There's been a lot of chatter, a lot of articles about this case, which is going to be heard by the Supreme Court I think in early December."

John Petoskey:

"December 2nd."

Ian Record:

"Yeah, December 2nd. It could have major implications for tribal sovereign immunity and for tribal jurisdiction and a whole host of other issues that John will address tomorrow. He's here today to talk about nation building. John, as you probably saw in the email that went out in his bio, has been serving as general counsel for the Grand Traverse Band for upwards of 30 years, and has sort of been at the helm working with the leadership of his nation through a lot of major developments, through the reaffirmation... the federal re-recognition if you will of Grand Traverse as a federally recognized tribe, the development of their constitution, the ongoing work they've been doing to develop their legal infrastructure, which is not necessarily the sexiest part of nation building and governance, but it's... some could argue it's the most important part. And so John is here to share his knowledge with you and share the Grand Traverse story about what they've done and what they continue to do to make sure that they have the rules and institutions in place in order to move their nation and community forward. So without further ado, John Petoskey."

John Petoskey:

"Thank you. First of all I'd like to do a few caveats and limitations. I only know a very small part of a very large area of law, federal Indian law, and I only know a very small part of that area geographically, which is Grand Traverse Band and Michigan, the Michigan tribes. And so a lot of my discussion by reason of my limited knowledge is going to be focused on Grand Traverse Band and the small area that I'm familiar with. I am admitted to the New Mexico Bar and I did practice in Alaska for a while and I'm familiar with some of those problems, but that was more than 30 years ago. So I don't have any relevant recent experience in those two states that I practiced in in the past and so for all practical purposes the beginning and end of my life is in Michigan. Having said that, I wanted to quickly describe that life in terms of its history.

Grand Traverse Band is a product like every other tribe of its own unique history. Grand Traverse Band is the signatory of two different treaties, the 1836 and the 1855 treaty along with several other tribes in Michigan, five other tribes in Michigan, and in Michigan we always go like this when you're saying where you're from and Michigan is shaped like a hand. Detroit's down here and so Grand Traverse Band is up here, it's the little finger. It's an area that the exterior boundaries of the original reservation was 87,000 acres. It was established in an 1855 treaty. It was the precursor of the Dawes Act in that at that time the tribes were subject to removal. In fact all of the southern tribes in Michigan were removed along with the tribes in Indiana, Ohio, Pennsylvania and the southeast of Oklahoma. So you have a lot of Ottawas, Potawatomis and out in Oklahoma that have reservations that were removed from southern Michigan. The northern Michigan Ottawas and the northern Michigan Chippewas were fearful that they were going to be removed from Michigan and they negotiated for permanent homelands in 1855, which was a modification of the 1836 treaty. The 1836 treaty ceded a whole area of Michigan to the United States and it created reservations that were temporally limited and the 1855 treaty created these permanent reservations in which Grand Traverse Band, Little River Band, Little Traverse Band were to have communities and to become permanent homes. When the dominant society imposes its... this is not an original thought, this is a thought by Monroe Price who wrote a lot of the article now 35 years ago that was relevant when I was in Alaska.

The Dawes Act in 1887 was converting the common method of governance or making a living of a small time farmer and trying to impose that onto Indian tribes to turn all Indian tribes into small time farmers so it was a wholesale conversation and it failed, the Dawes Act, by everybody's admission of failed. The only reason I bring that up is that 30 years before that Grand Traverse Band went through that. In 1855 we were created a reservation in which it was to be allotted to 80 acres and 40 acres for our ancestors and it was the pilot program if you will for the Dawes Allotment Act. The program failed on a large scale. The tribe was dispossessed from its reservation and by 1880 we were essentially destitute. In 1872 the Secretary of the Interior of person in Columbus Delano opined that a provision in the 1855 treaty, which provided that the Ottawa Chippewa tribe would go out of existence after the allotments had been issued, issued a letter of determination that all of the tribes in Michigan were no longer under federal jurisdiction, there was no trust responsibility and essentially the tribes were not offered any services at 1871 as federal government... as units of government. The federal government was still there in terms of offering medical services and educational services. For example, my parents and my wife's mother and other people did go to Indian boarding schools, but that was all based upon the Snider Act of half blood or above and you would receive services and so they all went to boarding schools.

I give this history because it's a historical basis of how the tribe developed. We were not federally recognized in 1871, and for this time period until 188o we were dispossessed. In the 1930s we tried to reestablish our federal recognition through the Indian Reorganization Act. It was denied not on the basis that we weren't Indian tribes that had a historical treaty relationship with the United States, but it was denied on the basis of insufficient funds. In the 1950s with the Indian Claims Commission Act that was established for unconscionable dealings through treaty negotiations, Indian tribes could be plaintiffs or recognized tribal groups could be plaintiffs. And so a group of the Indian Bar for the Indian Claims Commission came to Michigan and established an organization called the Northern Michigan Ottawa Association. And what the Northern Michigan Ottawa Association was was the old reservations that were established under the 1855 treaty, the Little River Band, the Grand Traverse Band and the Little Traverse Bay Band. Those three Ottawa tribes were then a plaintiffs group that intervened and filed a case that later turned into a judgment in 1971, an ICC judgment in which there was found that the 1836 treaty did not fully compensate the tribes for the taking of the land and a judgment was entered and that's a separate story. But my point is is that there was this group of three tribes together called the Northern Michigan Ottawa Association.

In 1973, the U.S. Attorney filed a case on behalf of the Bay Mills Indian Community, which was established by the Indian Reorganization Act in the 1930s as a federally recognized tribe. That was the only tribe in the 1836 treaty area. The Bays Mills Indian Group lived on a bay in the Upper Peninsula called the White Fish Bay and they had a local history of fishing and there was the oral tradition that the 1836 treaty had recognized off reservation fishing rights. The U.S. Attorney in 1973 agreed with the tradition that the tribe urged on him that they had 1836 treaty fishing rights under Article 13 and also the U.S. Attorney had as a model the U.S. vs. Washington case, which had been in litigation for a number of years that was essentially the same proposition. In fact, when I graduated from law school and worked on U.S. vs. Michigan in the 1970s, you could literally go through and see some of the pleadings in the United States vs. Michigan case, the arguments, and you would find those same arguments in the U.S. vs. Washington pleading file. That was before cut and paste and everybody had to do it on a Selectric and so everybody was typing arguments from Selectrics from the U.S. vs. Washington case that was litigated in the early ‘70s. So the United States filed this case on behalf of Bay Mills alleging that off reservation treaty rights still continued to exist in the Great Lakes and that Bay Mills...the Bay Mills Indian Community was the recipient of those rights. In 1975, the Sault St. Marie Tribe of Chippewa Indians was administratively recognized by an act of the area director of first the State of Michigan and then the regional director of the BIA. Now there wasn't any statutory authority at that time for the BIA to do what it did, but it did recognize Sioux St. Marie as a existing Indian tribe over the objections of the Bay Mills Indian Community because the Bay Mills Indian Community argued that the Sioux St. Marie Tribe was a sub-band of the Bay Mills Indian Community. That's a separate story.

In any event, there was another tribe recognized in 1975 and they intervened in the U.S. vs. Michigan case on off-reservation treaty fishing. You have to keep in mind at that time what was driving this was that you could really pull out a lot of money out of the lake. The lakes were very, very productive. The fish were at their maximum value. If you had a gang of gill nets they're called, you could literally pull your way to riches by sticking them in the water and pulling out the fish and selling them in competition that did not exist because the state had taken the position that all commercial fishing on the Great Lakes was outlawed and it was all sports fishery. And so the population of the Great Lakes commercial fish exploded and private tribal entrepreneurs were capitalizing on that by going out and fishing in the lakes and arguing that they could do that without regulation by the state. The state was arguing that ‘No, they had to be regulated by the state,' and much similar to the United States vs. Washington case. Northern Michigan Ottawa fishermen then said, ‘Well, there's the bonanza. We've got to intervene.' And so they intervened in the case and were dismissed because they were not federally recognized. At that time a fisherman from Grand Traverse Bay called Arthur Duhamel, argued that our tribe should no longer participate in NMOA [Northern Michigan Ottawa Association] and seek federal recognition on its own, which we did. And at that time, I don't know how much history you have done in this class, but the Indian Policy Review Commission had completed a study of non-federally recognized tribes and had issued a report that the federal government had the authority to recognize tribes and that they should do the CFR process, ‘a federal regulations process,' to recognize tribes that had treaty relationships. And so the federal regulations for federal recognition were promulgated. Grand Traverse Band was the first tribe to go over the hurdle and meet all of the requirements to be federally recognized. We had a reservation, we still had residual land that was no longer trust land, but it was from that reservation. We had clearly identified annuity payments from the treaty in 1910, we had a tribal roll in the 1880s and 1871 that came from the earlier treaties, and so we had a very detailed history that we were under federal jurisdiction at one time and taken out of federal jurisdiction in 1872, and that the federal trust relationship recognizing us as a tribe should be re-established. So we were re-established as a federal tribe in 1980 and intervened in U.S. vs. Michigan, which is a separate story that continues today because that case has continued since 1973 and still continues today. It's a series...it's morphed into inland hunting and fishing, it's morphed into 300-page consent decrees where the tribes regulate off reservation fishing and regulate inland hunting and fishing and the tribes...when I say tribes, there were LTB [Little Traverse Bay bands of Odawa Indians] and LRB [Little River Band of Ottawa Indians] were later recognized by federal statute in 1997, and so there are five tribes that now basically argue over the division of the resources that are available for off-reservation treaty fishing and also for the division of the resources for inland hunting and fishing and gathering rights. That's a separate issue and it's ongoing.

But getting to the point of this conversation or this lecture is Native nation building and justice systems. So you had a...we had a blank slate somewhat if I may in 1980 because we were federally recognized and we had to create a government and creating the government at that time was following the IRA model of creating a constitution and defining that constitution in terms of what our tribe thought should be in the constitution for governance. Also, in that constitution we got into a dispute with the federal government over the scope of our membership criteria. We argued with the feds that our members, under the federal recognition of 1980, included all Ottawas south of the bridge. The federal government's position, which was Ronald Reagan at the time and James Watt was, ‘That's way too many Indians because that's going to be a big financial drain to have all those Indians,' and so we were in eight years of litigation over the scope of our membership. That was ultimately settled in a compromise solution in which we agreed to limit the scope of our membership to the annuity payments from Grand Traverse Band and all of the members that lived within our area that regardless of whether they were LRB or LTB, they could still be a member of GTB even though their ancestry was traced from LTB. So you have the anomalous situation; it's not anomalous, but you have the situation now where the majority of the tribal councilors on the Grand Traverse Band tribal council historically descend from Little Traverse Bay Band and not from Grand Traverse Bay Band because they were living in the area and joined the tribe at the time. Myself for example, my father's from LTB, my mother is from Grand Traverse Band, but there are other members on the, not on the council, but there are other members on the tribal council whose both parents are from LTB, but they were living in our Grand Traverse Band area and they were part of the compromise that allowed them to be a member of Grand Traverse Band.

I say that because a lot of our governance systems were not really implemented, because the federal government asserted that they were not going to fund our government through the BIA [Bureau of Indian Affairs] unless we acquiesced to their assertions of what our membership should be in our tribal constitution. And so it took us a long time to get to a constitution that would initiate tribal council elections, that would [resolve] disputes because once you have elections and you have people running for office, you're going to have disputes, and we've had our share of disputes -- quite a bit. And in building a constitution, we established the proposition that the judiciary is a separate branch of government and it's tough being a judge in Indian Country. It's tough being a judge any place, but it's particularly tough if you're an Indian judge and you're related to most of the community or you grew up in that area. And so what a lot of tribes do, which I'm sort of jumping around in my presentation, but a lot of tribes do provide an option in their constitutions...I'm not certain how far in the west this is, but I know in Michigan it's very common...where they do provide an option for lawyers to be their tribal judge...judges. And if you look at the Southwest Appellate Court for example, you have Frank Pommershein, you have Rob Williams, you have people that are non-Indians, they're very knowledgeable about Indian law, but they're tribal judges and they're on the tribal appellate court. Now if you...and when you...the problem from my perspective that that creates is it almost handicaps the legitimacy function of the judiciary, because if you're on the street, reservation-level Indian, and you're being judged for a crime on the reservation by a non-Indian lawyer judge, you're less likely to accept the legitimacy of that decision. And there's not a whole lot of discussion in the academic community about that consequence of non-Indian lawyers acting as tribal judges and it's a discussion that I think should take place, because in the best of all possible worlds it's an Indian tribal member that should be the judge and not a non-Indian lawyer. Just to take a thought experiment for example, how many tribes would allow a non-Indian lawyer to be on their tribal council? Nobody. I mean nobody would allow that. And so when you're talking about building legitimate systems, part of the legitimate system is having legitimacy from the ground up, which means being a member of the tribe, being familiar with the community, and not being a non-Indian lawyer who is sympathetic, who has detailed knowledge of the tribe, but when they come in they have a strike against them in terms of the legitimacy of their opinions and decisions. And I've seen that happen again and again at Grand Traverse Band, at Little Traverse Bay Band, at Little River and at other places. There's a professional cadre of tribal judges that are Indian law lawyers that are non-Indians that serve on appellate courts and I thank them for their service, but I'm just saying in terms of legitimacy, it doesn't work very well when their tribal member citizen is being judged by a non-member lawyer. Having said that, I don't think that you can get away from that situation -- at least Michigan cannot get away from that situation -- without building up the human capital corpus of tribal communities to act in those positions as tribal judges.

So what is the...the other point I wanted to bring out in building a justice system is that, and in the context of Grand Traverse Band, a lot of people use the phrase that you don't want the judiciary system to be influenced by politics, and to me, I don't think politics is a necessarily evil word. I think politics is part and parcel of a tribal Indian community because the tribal council represents constituents in a community that are politically driven. They represent a community that is in large measure seeking redress for damages that they've suffered either individually or historically and they want a remedy for pain that they have and the only place that they see the remedy for that pain is to go to their elected council member and say, ‘I want this,' and sometimes their wants can be filled and sometimes they cannot and they do do that same situation when they disagree with a tribal opinion. They'll go to their council member and they'll say, ‘Get rid of that judge. He made a bad decision or she made a bad decision because they found me...they convicted me when I shouldn't have been convicted.' Building a strong system should be able to withstand criticisms like that.

At Grand Traverse Band, we have not gotten rid of a judge when somebody has come in and said, ‘The judge made a terrible decision because the judge found me guilty.' The judge is still there, but the politics of the judge's reappointment certainly came into play because the council, and I've told the council this, ‘You can't reverse the court's decision. You can appeal it or you cannot appoint the individual at the next appointment process,' and they've certainly done that because there are judges that made bad decisions who I thought, and there was one judge in particular who was a non-Indian, he was very intelligent, he wrote very good opinions and he made a couple of decisions that the council didn't like when they wanted to get rid of him and my advice was, ‘You can't get rid of them. You can get rid of them for judicial misconduct, malfeasance in office, things like that. You don't have it here. You have to wait until his term runs out, don't reappoint him. That's what you can do. Or you can appeal the decision that he made.' Appealed the decision he made, the decision was upheld, they had to wait him out, his time came up, he wasn't reappointed. And that's a legitimate exercise of politics, that's politics. That's politics on the council side and in my view that's legitimate. That's a legitimate exercise of politics because they're acting as legitimate representatives of the community objecting to a decision made by a judge and part of that judge's decision, the illegitimacy that is added that isn't very...that isn't said in an academic forum, but certainly is said in a tribal community forum and if you're from a tribal community I know you've heard this, ‘What is that non-Indian doing making this decision about our Indian community?' If you're from an Indian community, you've heard that and when you get into a non-Indian environment, it just seems to disappear, people don't mention that, but I think it should be mentioned because it is part of the legitimacy of the judiciary and non-Indian judge lawyers should recognize that and be sensitive to that and some of them are.

The other thing on nation building is -- excuse me for skipping around on this area -- but the other thing on nation building is the development of tribal codes. It is so difficult developing tribal codes. Grand Traverse Band has now, since 1980, 33 years of experience. Our tribal code is probably 1,000 pages long. It covers very complex areas of the law, covers complex relations that regulate internal tribal politics, internal family politics, it transfers large amounts of money to individuals, and it transfers housing to individuals, it transfers medical care to individuals, it transfers educational benefits to individuals. It's really a transferring organization and part of politics of building a nation is you're always going to argue over the scope of the transfer, the amount, the eligibility, etc.. But the thing that has to be established is it should not be indeterminate. It should be a determinate transfer and rather than saying that something is politically driven, the way I like to characterize it is if something is indeterminate, that you can't tell what's going to happen in the future given your situation, that is what is wrong, that's the evil because you can argue about the politics of the situation, but it has to be a determinate process where people can come in and understand what was the basis of the decision in the past, and what will be the basis of the decision in the future. At Grand Traverse Band, we have something similar to an Administrative Procedures Act [APA] for the development of our tribal code, of writing our codes, posting them and getting comments from our community and then only enacted after there are comments and those comments are reacted to. If you're familiar with...and that's where we got the process, from the Administrative Procedures Act. It was a scaled-down process of the APA. There's no appeal like there is in APA, but it's a scaled-down process to get community participation.

In other cases where's it's a hotly contested issue, for example, revenue allocation ordinances, which are permitted under the Indian Gaming Regulatory Act, in order to do per capita distributions to tribal members you have to establish a revenue allocation ordinance [RAO]. Grand Traverse Band did that prior to the publication of the CFR [Code of Federal Regulations] rules governing revenue allocation ordinances and we created a committee of community members with members of the tribal council on the committee and we kept track of the proceedings and we created...this was before computers...not before computers, but as the use of computers on an every day basis. But we have a legislative history of the RAO for example. We have...there were probably 20 meetings of the RAO and there were comments and selections made by tribal members at each of those meetings, participants of why certain decisions were made. And so it's a chronological legislative history of the development of the final RAO. And so there's a basis to go back and figure out why the tribe made certain decisions at that time.

We did the same thing with a number of other statutes that were hotly contested, creating committees to establish the legitimacy from the ground up by participation with community members. The one issue that was very contentious was membership. We rewrote the membership ordinance and if you follow Indian Country at all you know that membership disputes generally take place when there's per capita and there's not anybody clamoring to get into a poor Indian tribe if they're poor. They're not doing that. That's just not realistic. It's driven by the same thing that drove the initial federal recognition, pulling money out of the lake, pulling money out of the casino. It's gaming in the lake, it's gaming at the casino, it's pulling money out of it and it's clamoring to get in. So that was a contentious issue and we had the same level of legislative history detail in developing our membership ordinance. And the politics will go any which way, but the important point is to make something that is indeterminate determinate, not something where membership is predicated upon some person soliciting a tribal council member and then some council member showing up at a meeting called without notice and an opportunity and then moving to admit somebody with something that wasn't on the agenda to begin with. That is the sort of thing that is a clear violation of procedural due process for the other property interests of the other tribal members.

Grand Traverse Band has its code published at the NARF [Native American Rights Fund] website. It's free and available to other tribes. We also make our documents on our personnel policy free and available to other tribes. We make our documents on our minimum internal controls. In fact, when LTBB [Little Traverse Bay Bands of Odawa Indians] and LRB -- who are our competitors -- first opened up, they got all of their documents on how to operate a casino from us without charge to operate their facilities. We are now implementing a new procedure with the tribal council where our meetings are going to be real time video graphed by...so the community can participate at remote sites and they can also have the information at their fingertips. One other thing that we did that was very, very helpful, incident to a case that we were involved in, Grand Traverse Band vs. the United States, on the scope of restored lands for casino gaming, because it was such a high-value case, we took all of the old minutes that the tribe had from its inception and put them into a database. At that time it was, Iron Mountain was the name of the company and the database was called 'Concordance,' which we still use, but that is extraordinarily helpful for a community and for the tribal councilors because now they ask the question, ‘Well, what does Concordance say,' when something comes up because they can get that...we can get that information immediately. All of the councilors have iPads. All of the meetings are conducted on iPads where they have access to the statutes, to the agendas, to the documents. Everything is iPad-ready, searchable, and now it's going to be recordable. The common denominator in all of that is transparency and transparency across the board.

The tribal court has published all of its opinions, has published all of its court rules. We have relatively good judges. We have some non-Indian judges, two non-Indian judges, who are not tribal members who are sensitive to some of the concerns that I stated earlier. We have a recently appointed appellate judge that is a stellar star if you're familiar with Indian law and that's Matthew Fletcher. He's our chief appellate judge as of about eight days ago. He was a former attorney that worked in the general counsel's office for four years and Matthew was phenomenally adept as most of you may or may not know in terms of his productivity and his knowledge of the minutia of Indian law in terms of litigation. But he doesn't have that same level of facility with the minutia of Indian law in terms of legislation and that's really what I would like to see sort of developed, and NARF has sort of developed that by placing all the codes online where people can go and pick and choose from different...steal from other people is what I'm saying. Don't sit down and try to write a code on the children's code or try to write a gaming regulation code or public departments code, because it's too difficult to do something from the ground up when you can just take it from somebody else and adapt it to your circumstances. The caveat on that is if you don't understand what you're doing from the ground, it's not going to work for you, but if you do understand what you're doing from the ground up then you can choose and select these codes that are applicable to your unique situation and that's what building a nation, in my view, that's what building a Native nation is, is building these justice systems that are determinate. In other words, people will know that good, bad or indifferent, they're going to abide by the judgment. They may object to the judgment or they may applaud the judgment, but they'll live with the judgment. I'll give you an example.

We recently had a very contentious dispute between contiguous property owners on the intestate death of a tribal member, and his son was arguing that he controlled the property and the house. The sister to the brother argued that while the brother was alive that he had deeded it to the niece of...then the niece happened to be the daughter of this other person. So they were just at each other's throats over this on who had the right to that particular house and it went to court. There were good arguments on both sides. The judge ruled that the intent of the uncle was to deed it to his niece, that the intestate succession did not apply and the pre-emption under probate law of a son's right did not apply and the party stopped. After the decision came out, the guy that was making such the big stink about living there and he was going to win, etc., etc., he moved out. He said, ‘Well, that's it. It's over.' So he moved out and the parties moved on.

I can think of other instances where that has occurred. We had a tribal councilor that did self dealing and so we initiated removal proceedings in tribal court against him and he contested that this was not self dealing and so there was a tribal court proceeding on whether or not it was self dealing, contested questions of fact, it was highly litigated, and the court found that it was self dealing and that he should be removed from office for self dealing and the person said, ‘That's fine,' and moved on. At election disputes, very contentious election disputes, in which people lost offices, won offices, but nobody's going out in the street and saying, ‘We're going to protest, we're going to take over the office by force.' Everybody's abiding by the decision and they're arguing though that the decision is wrong, but they're not arguing that the power to make the decision is illegitimate. Nobody's arguing that. They are arguing that the decision is wrong, not that the power to make it is wrong. And that's very hard to do because in Michigan, not to point out Michigan too much, but there was another tribe in Michigan, this is well known in Michigan circles at least, in which a tribe and the judiciary got into a fight and the judiciary had the tribal council literally arrested. They arrested the whole lot of the tribal council, put them in jail and the tribal attorney had to file a federal habeas corpus petition to get his clients out of incarceration. To have those situations, it's what you want to avoid obviously.

But I think that's about the end of my talk. It's just steal from other people, is the end result and don't...it's not an easy answer. They're not easy answers."

Ian Record:

"Thank you, John. We have some time for questions for John. I think about 10 or 12 minutes. He covered a lot of ground, so I'm sure there are some questions out there. Any first volunteers? Yes."

Audience member:

"Does Public Law 280 fit?"

John Petoskey:

"No, it doesn't. We're a non-280 state. I should have said that. I'm sorry."

Audience member:

"So you said when you created the constitution of your tribe it was at those first stages where it was created that the judicial branch is separate."

John Petoskey:

"Right."

Audience member:

"So with a tribe that already has a constitution basically off of the IRA structure, but what would you...I think what's very difficult is when a tribe wants to say, ‘Alright, let's rewrite our constitution to the point we can get our judicial branch separate,' that is very hard because it seems like, in order to do that, you need the political backing to start the process. So with that being said, what's your advice on that or as far as does it just depend on who's the person in office that's going to say, ‘Alright, attorney, you have my support to start rewriting everything to say the court's going to be separate.'"

John Petoskey:

"Well, if it's an IRA constitution and you want a separate judicial branch, then you have to go through a secretarial election to change the constitution and there are CFR procedures for doing that, which I'm sure you're familiar with. On the political question of whether you have the support of the community, that's a question that I can't answer because that's a question that relates directly to that particular community. I can tell you at...the one thing I did not mention is at Grand Traverse Band when we did the constitution, we didn't create a three-branch government, we created a two-branch government with the tribal council acting in a combined executive-legislative capacity and the judiciary as a separate branch. So it's really a two-branch government, it's a little different."

Audience member:

"How important is it for the Grand Traverse Band to incorporate tribal core values into development of its laws and how does the tribe accomplish that if that's indeed a goal?"

John Petoskey:

"In the development of its statutory laws or its case law?"

Audience member:

"Statutory laws."

John Petoskey:

"Well, the process of writing a statute is a process of making a choice and so to the extent...to be perfectly honest, I can't think of a...a lot of the statutes that I worked on are very complex, detailed statutes dealing with complex subject matter. I mean housing, gaming, membership. Membership, for example, maybe that incorporated some of the values on what is the scope of your family community feelings and in the child code we do have termination of parental rights. There was a big argument over whether or not the tribe should have termination of parental rights within its own code and that was based on cultural arguments that the tribe was making between the council members back and forth that that provision should be in there or shouldn't be in there and so that's an ongoing dialogue in the particular instance. It's not...I can't give you a categorical answer, because each instance of where you're making a choice to include or exclude brings up that issue of the values of the legislature and the value of the legislature reflect the values of the community."

Audience member:

"As a general counsel for the tribe, how did you find your role in integrating that discussion for council?"

John Petoskey:

"Give them option A, option B, option C and whoever has the majority votes wins. That's what my role is. A council member with one particular point of view will request a statute to be written for his point of view. Other council members will say, ‘Well, you can't do that so don't write the statute that way,' and I go back to the council and say, ‘I really need direction on a majority vote of a motion, since the council under our constitution operates by motion, ordinance or resolution, that I should be writing this statute from this particular point of view,' and if I don't get the motion, then I don't write the statute. If I get the motion, then I write the statute. That doesn't mean that the statute's enacted, that just means that the bill is written and then there's an argument of whether or not to enact the bill. The recent case that comes to mind is one council member has requested that I write a bill on the election code and other council members have orally stated, ‘Our constitution provides that election processes are controlled by an election board so we should not be writing a code.' That's a situation that I'm going to take back to council and say, ‘I really do need a motion on this because one council member has requested a bill and other council members have said no dice.' And so it's either four against or three for. Whatever it is, I need...I don't have the authority to do it independent of that...of one person asking me to do it."

Ian Record:

"John, one quick follow up on that. You mentioned statutory law in clarifying your question. You and I were talking this morning and you mentioned that you guys have worked very hard to instill core values into your case law in particular and that Matthew Fletcher actually put together a [restatement of Grand Traverse Band common law]. And I think it's available online."

John Petoskey:

"It is."

Ian Record:

"Basically it tracks the articulation of Grand Traverse Band common law through the cases that it..."

John Petoskey:

"It's called a restatement. It's a restatement of Grand Traverse Band common law and it was written by Matthew Fletcher and his brother Zeke, which takes the 150 case law opinions and then writes a restatement of Grand Traverse Band, which I don't know if any other tribe has done that, has written a comprehensive restatement. And you can argue about the particulars, whether or not in his decision on what the case held is correct or incorrect, which I have done on certain cases, but my point is that in the scope to make things transparent, we have put all of our cases on WestLaw, we have put our cases on VersusLaw, we have put them in hard copy in the local law libraries, we have our court rules published on the same basis and the court is considering putting its proceedings on camera also, but that's a rule-making function of the total court to do that."

Akenabah Begay:

"How difficult is it to get rid of your tribal judges?"

John Petoskey:

"Well, we did have a one removal petition for a judge that was authorized by the tribal council and it went to trial. And under incorporation by reference of Michigan case law, you can request a psychological evaluation of a judge that you think is nuts and it was a legitimate request and so that's what I did. And once that came up then the other...the judge, the particular judge, wanted to settle the case because she thought it was an affront to her capacity as a judge even to have that question posed to her. But it was not under Michigan law. You can go through a psychological evaluation of a judge relating to misconduct in office to determine whether or not she is psychologic...or this particular judge was psychologically fit for office and it was a legitimate request."

Akenabah Begay:

"So the tribal council can't fire a judge?"

John Petoskey:

"Oh, no."

Akenabah Begay:

"Okay."

John Petoskey:

"No. They wouldn't...no, they cannot."

Akenabah Begay:

"Okay."

John Petoskey:

"Maybe I didn't get that point across."

Akenabah Begay:

"I took Dr. Begay's class and he said for a stable judicial system it would be best to have judges not be easily removed."

John Petoskey:

"It's...right, and I can say that I have had requests from individual members of the tribal council to fire a judge and my response is, ‘Well, you can't fire a judge because of this opinion that you disagree with. You can appeal it or you can exercise the power of appointment when their term is up or you can do a removal petition,' and those are all permissible exercises of the council's authority when they're dissatisfied with a judge."

Audience member:

"What would be your take on tribes developing their own general counsel as opposed to contracting out to law firms?"

John Petoskey:

"Oh, I think they should. I think it's cheaper to have a general counsel in house and it's a better way of representing the tribe and the more you work the general counsel the cheaper it gets."

Manley Begay:

"Are plans being laid to improve the judicial system? I know a lot of tribes are moving toward establishing business courts or children's court or youth court or constitutional courts and so forth as a way to sort of speed up the process of various types of issues."

John Petoskey:

"Well, the judiciary at Grand Traverse Band has experimented with that. We do have an arbitration provision in our waiver of sovereign immunity under contracts and we have had arbitration for contract disputes on major construction projects and the arbitration award then is enforced by the tribal court, but the tribal court doesn't deal with a construction defect litigation because we write our contracts for arbitration and in arbitration you have arbitrators who are familiar with construction issues and we have gone through arbitration. So that's one way we have attempted to...when I say we, I'm speaking very broadly, the GTB judiciary has attempted to establish peacemaking courts and attempted to...and has that and has used that for resolving family disputes and has attempted to establish a drug court for recalcitrant offenders or first-time offenders who may not turn into recalcitrant offenders."

Audience member:

"As far as the criteria for a tribe appointing a judge for your tribe, is it...do they have to have a law degree and must they speak the language or..."

John Petoskey:

"No. I don't speak the Indian language and I would venture to say 95 percent of our tribal members do not speak the Indian language. My parents did and I was...when I was given this history I was explaining probably why we suffer from this language deficit because our communities were destroyed. Having said that, I think that the language in Michigan is certainly being revitalized by community efforts to maintain it, but in terms of appointment to the tribal judiciary, it's very limited. You have to be 18, a tribal member or an attorney, and that's my point is you go from one extreme to the other and I think that there should be a more detailed process on the appointment of tribal judges to create greater legitimacy. In the hierarchy or the paradigm of what is the best, it would be a tribal member who is a practicing attorney with substantial experience. That would be the best type of tribal judge to have and particularly one that is not going to end up in personal problems in his or her own life, because when you're in an Indian community and if you're from that community, you have so many problems coming at you from your employment and from your family members and your extended family members that it's difficult to be...lead a life that doesn't intersect with all these other problems."

Audience member:

"So the tribal council appoints the judges?"

John Petoskey:

"Yes."

Audience member:

"What are your thoughts about elected judges? I don't know very many tribes that do that but...because I can see the politics..."

John Petoskey:

"There are places in Michigan that do do elected judges. My thought is...I don't know. I would...I don't know. I mean, there are arguments for it and arguments against it. In the states there are elected judges, there are also judges that are pass...that have to pass a panel. The federal system does not elect judges, they have the political appointment process and there was a movement in Grand Traverse Band where a person who had been in front of the tribal court on a number of occasions for various reasons, did start a campaign for elected tribal judges and part of his campaign related to his incarceration as the result of being in front of the tribal judge and he said, ‘I don't mind being in jail, but I want to be in jail by somebody that I helped appoint.'"

Ian Record:

"One final question over here."

Audience member:

"I was just curious, I notice you had involvement with the gaming compacts up in Michigan."

John Petoskey:

"Yes."

Audience member:

"Is there a reciprocity clause up there between...where certain cases will be held whether it's going to be the state or..."

John Petoskey:

"No, there's no reciprocity, not like...Wisconsin and California have those, but we don't. This is the gaming compact of 1993. The compact was 12 pages long and it was in existence until 19...until today, 20 years and we're currently in compact negotiations. I think it's going to be much longer this time around."

Audience member:

"Is there any possibility there might be something like that in terms of where..."

John Petoskey:

"Well, we do have...I did neglect to mention this. In Michigan we did...it was mainly at the behest of Mike Petoskey who is my cousin, who is an admitted lawyer and a long time tribal judge and works... and was our tribal judge at Grand Traverse Band for 18 years and so he was at the helm there for quite a long time. He's now a tribal judge for other judges in Michigan, but I only bring him up because he became a good friend with Justice Cavanaugh who was on the Michigan Supreme Court and who was head of the Rules Committee. And Mike and Justice Cavanaugh fashioned Michigan Court Rule 2615, which provides reciprocity between Michigan state court orders and tribal court orders if the tribal court adopts a rule that is similar to the Michigan court rule and they're covering equal protection and due process and other standards for full faith and credit, so it's no longer an issue of trying to enforce a tribal court order on a full faith and credit basis and then going through to get the judgment domesticated if you will in another forum's jurisdiction. It's an automatic process right now because we have that parallel rule of reciprocity. The state has 2615 and the state court and the tribal court enforce each other's orders as a matter of routine now."

Audience member:

"Thank you."

Ian Record:

"Well, thank you very much again, John."

John Petoskey:

"Thank you."

NNI Indigenous Leadership Fellow: John Petoskey (Part 2)

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Native Nations Institute
Year

In the second of two interviews conducted in conjunction with his tenure as NNI Indigenous Leadership Fellow, John Petoskey, citizen and long-time General Counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses the legal doctrine of tribal sovereign immunity and the future of the doctrine with respect to the Michigan v. Bay Mills Indian Community case pending before the U.S. Supreme Court. He also discusses how GTB has worked to systematically build its justice system, and stresses the need for Native nations to adequately fund their justice systems.

People
Resource Type
Citation

Petoskey, John. "NNI Indigenous Leadership Fellow: John Petoskey (Part 2)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 3, 2013. Interview.

Ryan Seelau:

"Welcome to Leading Native Nations. I'm your host Ryan Seelau. On today's program we have back with us John Petoskey, citizen and longtime general counsel of the Grand Traverse Band of Ottawa and Chippewa Indians. This week, he is serving as the Indigenous Leadership Fellow with the University of Arizona's Native Nations Institute for Leadership, Management and Policy. Good to have you with us, John."

John Petoskey:

"Thank you."

Ryan Seelau:

"We're here today to talk about a few other nation-building topics to build on the things you've talked about this week, and the first topic I would like to talk about is sovereign immunity. And the first question is hopefully sort of a simple one. Can you just tell us what in layman's terms the doctrine of sovereign immunity is and sort of why it exists and what the rationale behind it is?"

John Petoskey:

"The doctrine provides that a sovereign is not subject to suit unless there is a consent to that suit, unless the sovereign either waives sovereign immunity or -- in the case of Indian tribes -- if Congress statutorily enacts something that abrogates the immunity of the Indian tribe. So sovereign immunity for a state, for example, is recognizing the 11th Amendment of the U.S. Constitution and sovereign immunity of the United States, although not recognized in the U.S. Constitution, is part of the Law of Nations that was adopted in the early part of the constitutional history of the United States, that the United States could not be sued without its consent. So it's a doctrine that provides immunity for a sovereign, in this case the United States, a state or tribe from un-consented lawsuits."

Ryan Seelau:

"And what is sort of the rationale behind why it exists in the tribal context?"

John Petoskey:

"In the tribal context, it's to protect the tribal treasury, and it's also the same rationale that exists for state and federal that the governance process of the tribe should be immune from undue influence by private suits."

Ryan Seelau:

"And in your day-to-day work as general counsel, where does the doctrine of sovereign immunity come up?"

John Petoskey:

"Well, let me preface my response with my history with Grand Traverse Band. Grand Traverse Band was the first tribe to achieve federal recognition in 1980. That was two years after the Santa Clara [Pueblo v. Martinez] decision, which recognized sovereign immunity as a valid doctrine in the modern era of federal Indian law. And so in the early years of representing Grand Traverse Band, we would have a number of off-reservation creditors or off-reservation contract partners or tort people who would be suing in state court against the tribe and we would have to assert the immunity of the tribe, that it had not been waived nor had Congress abrogated that immunity and therefore the...it was generally in the context of a motion to dismiss that there was no basis for the lawsuit because of the immunity of the tribe. And in the early years, I probably did over 30 lawsuits of various litigants suing the tribe and the response from Grand Traverse Band generally evolved from those 30 suits to enacting statutory structures and resolutions that waived immunity and provided redress for people who were suing."

Ryan Seelau:

"Let's talk a little bit more about those statutes. Can you give an idea of some of the areas that immunity's been waived and what the thinking was behind that process and then, not going into specific codes, but what that looked like in practice?"

John Petoskey:

"Well, I know you said not going into specific codes, but I can only talk in terms of the specific codes. First of all, the constitution of Grand Traverse Band provides for a waiver of sovereign immunity for its tribal citizens to sue under rights that are similar to the Indian Civil Rights Act in the Bill of Rights of the United States Constitution and the constitution, the tribe's constitution, limits those remedies to prospective relief without any relief from the tribal treasury. The other two major statutes that the tribe passed was one on contracts and one on tort. The contracts we passed a general waiver of sovereign immunity for expectancy damages on the contract limiting the remedy to consequential damages and so our off-reservation vendors, when they do have a dispute with the tribe, do file a contract claim in the tribal court asserting expectancy damages and you just go through the regular contract analysis. With regard to torts, we have also waived immunity similar to the Federal Tort Claims Act in providing a limitation on remedies that are available for people who suffer, allegedly suffered a tort, and the big limitation that we have on that particular statute is that pain and suffering, which is the large area of tort case compensation, is limited to one-and-a-half times actual physical damages. And I might add that after we passed that statute our insurance premiums, the level of risk, actually declined because the insurance company could then therefore measure the level of risk and knew what the risk was less than not having a tribal waiver of immunity for tort actions."

Ryan Seelau:

"It's very interesting that the insurance premiums declined. Were there other benefits that you saw from the time before that those statutes were enacted to when the policy...when the constitution was passed and other policies came into play?"

John Petoskey:

"Yes. First, for tribal citizens it provides a method to dispute tribal council actions either in the executive or legislative capacity as being a breach of the Bill of Rights, if you will, that's... in our constitution it's Article X, which parallels the Indian Civil Rights Act. And so tribal citizens do bring causes of action against the tribal council or against the tribal councilors or against the executive departments alleging that the implementation of a particular tribal statute or particular tribal program is a violation of the Bill of Rights. The remedies that they seek are modification of the program, prospective relief in other words. With regard to the tort and contract issue, the tribe is involved with off-reservation vendors and also involved with off-reservation business invitees to its casinos and its hotels and we needed to provide a remedy for those people who come on to the reservation to engage in business with us and to have a determinate process of dispute resolution. When we did not have the waiver of sovereign immunity, we always had an indeterminate process of dispute resolution because the suit would be filed and in some cases given the merits of the suit the council would prospectively waive immunity for that particular suit to resolve that issue. In other cases, the council would not waive immunity and would just argue that we're immune from suit and not provide a remedy for the person who allegedly suffered harm. The statutes now provide a determinate response for all litigants on what they're going to do. And so when they enter into business with the tribe, they enter into business with the tribe knowing the risks and understanding that if there is a dispute, there is a remedy to resolve that dispute."

Ryan Seelau:

"I'm going to break my own rule and go into specifics a little bit, but procedurally in the contract instance or when the tribal council wants to waive immunity, is there a procedure or are those automatically in certain instances...?"

John Petoskey:

"No, there is a procedure. We have resolutions. The tribe does waive its immunity for transactional documents related to financing, for example, and we have chartered subordinate organizations and we have a Section 17 corporation under the Indian Reorganization Act that has a process for waiving immunity and that process has to go through the Economic Development Corporation through a resolution authorized by the corporation. That resolution then has to come back to the tribal council and the tribal council has to concur in the waiver prior to the waiver being effective. With regard to...there's one statute I didn't mention that I would like to mention very quickly and that is that the tribe has also enacted an arbitration provision, and primarily the reason we enacted an arbitration statute was because we have done substantial construction projects, multi-million [dollar] construction projects and we needed a methodology to resolve those construction disputes. The expertise of a tribal judge is not necessarily related to the complex problems related to construction activities and the American Arbitration Association has a wide variety of arbitrators that are specialists in different subject matter areas. You could have maritime...well, not maritime jurisdiction, but you could have commercial arbitration, you can have construction arbitration, and so this process that we enacted references the people who have the dispute, the off-reservation contractors and the tribe to go through the arbitration process with construction arbitrators, and it's a much quicker way to resolve disputes because the parties involved are speaking the same language in terms of construction activities. They're engineers, construction managers, they're architects and they generally have the same sort of two standard form of documents. There's two sets of documents, the AIA documents or the Engineer and Construction Management documents that really structure disputes between the owner, the construction vendor and the architect. And so we enacted that provision in arbitration to access that resource. Once the award is given in arbitration then it's enforced by the tribal court and if it's not enforced by the tribal court, which has never happened in our case, but the parties do have relief in federal court through the Federal Arbitration Enforcement Act. So that provides a lot of security for off-reservation contractors that come on to engage in business on the reservation."

Ryan Seelau:

"Has arbitration been used outside of the construction...is it available to other...?"

John Petoskey:

"It is available to other disputes. The arbitration procedure has been incorporated into our transaction documents for loans on the reservation. These are very large loans that we've negotiated with syndicated loan companies in which arbitration is used for the dispute resolution to determine whether there was a even of breach or interpreting the loan documents, which are extremely comprehensive."

Ryan Seelau:

"I want to turn back a little bit to sovereign immunity and talk a little bit about what role do you see sovereign immunity playing in negotiations with either state governments or local governments? Do you see it as having any impact in those...?"

John Petoskey:

"It does have an impact because sovereign immunity serves as a leverage value for the tribe to negotiate agreements with the State of Michigan in the context of what I'm familiar with. The Grand Traverse Band along with several other tribes in Michigan have negotiated a comprehensive tax agreement with the State of Michigan covering sales and use, income tax, utility tax and this agreement really resolves...it also covers tobacco and gasoline tax. The comprehensive tax agreement resolves a lot of disputes that the tribe could engage in or would have engaged in or other states and other tribes are currently engaging in, and that is the scope of the state's authority to tax for on-reservation transactions. What we've done in Michigan, it's called the...it's a tax agreement that is on the Michigan state website and it details what's called a tax agreement area in which the exemptions of the tribe will apply both for state income tax, sales and use tax, gasoline and cigarette tax, and also creates a situation where the sales tax is shared between the tribe and the state on a percentage basis that is subject to negotiation. Now a lot of those negotiations would not have gone forward if the tribe did not have sovereign immunity, because you have the Citizen Potawatomi decision of 1991 that directly relates to tobacco tax in which the Supreme Court held that the tribe was immune from the Oklahoma Tax Commission's collection efforts against the tribe for on-reservation sales of cigarettes that the tribe did not have to collect on behalf of the state, that there were other methods upstream that they could use to collect. And there have been well-publicized disputes between tribes and local taxing authorities, states in particular, in which things have degenerated into violence and road closures and burning tires and things like that. So that specter of civil unrest related to not having an agreement or enforcing an agreement through extra judicial means was one of the circumstances that both the tribes in Michigan and the state wanted to avoid. And incident to that was the immunity of the tribe, that the immunity of the tribe provided a negotiating leverage point as represented by the Citizen Potawatomi case for the tribe to argue with the state to say there's a different way of resolving this issue, we can do a mutual waiver of immunity, we can enter into this tax agreement and we can establish a regime in which the state and the tribes share the tax revenue and recognize the exemptions that are under federal law and this has been in existence since...we started negotiating in 1999 and very complex issues wasn't resolved until 2004. So it's been existence for about 10 years and it's been administered...the tribe -- both the tribe and the state are happy with the results and we are hopeful that will continue into the future."

Ryan Seelau:

"One of the interesting things about Grand Traverse Band's agreement with the State of Michigan in taxes to me is that if there's any disputes they first go to tribal court. My question for you is first of all, was that an important part of what Grand Traverse Band wanted to get out of the agreement and the other tribes? The second, you may or may not be able to answer this, but why do you think the State of Michigan was comfortable first going into the tribal court to deal with those types of disputes should they arise?"

John Petoskey:

"Well, first we wanted them to go to tribal court because our view of National Farmers and jurisdiction was exhausted in tribal court remedies, but also for some cases where it was on-reservation transactions involving tribal members. We felt that we had exclusive jurisdictions in some context and so we were very...not adamant, but we had very strong views that any initial dispute resolution should go to tribal court. The state has had ongoing relationships with the tribes and the Michigan Supreme Court and the tribal courts have had past reciprocity agreements, the Michigan court rule is at 2615 and that rule recognizes tribal court judgments and orders, subpoenas and other matters and so long as the tribe passes a reciprocal rule for the recognition of state court orders in its tribal court system. So that was the key, the existence of that rule and the history of mutual cross recognition without going through the full faith and credit analysis that had to be done previous to that, in which you had to petition the court and then establish on an itemized basis that the particular subject matter issue that you were involved in met the full faith and credit requirements of the host jurisdiction. All of that process is no longer done in Michigan because it's done via a court rule, Michigan Court Rule 2615 and Chapter X of the Grand Traverse Band court rules. And so it's become a matter of local practice for attorneys up there to understand that they can get their state court judgments enforced in tribal court and that the tribal court judgments conversely can be enforced in state court. So the existence of that rule gave comfort, if you will, to the state, and in addition we wrote statutes to reflect the agreement that we had negotiated, the substantive agreement that we negotiated, the state didn't have sign-off authority on them, but once they saw the scope of the statutes and our enforcement mechanisms that we established for the agreement then they didn't have an objection to having the agreements resolved in tribal court and we have done that. We have, in fact, enforced our tax agreement against our tribal members who have violated it in tribal court for the benefit of the State of Michigan because they are part of the revenue-sharing agreement of the taxes that are generated."

Ryan Seelau:

"Following up briefly on this Rule 2615, was that something that the tribes in Michigan fought to get to occur or do you know the history behind how that came about?"

John Petoskey:

"The history behind it was Justice Cavanaugh who was on the Michigan Supreme Court was interested in this reciprocity between tribal courts and a cousin of mine who's also a lawyer and a tribal judge, Mike Petoskey, and Justice Cavanaugh, started a committee years ago to have coordination between the courts. Justice Cavanaugh attended the Federal Indian Bar meeting in Albuquerque, New Mexico, sometime in the 1980s and that's when Mike and Justice Cavanaugh first met and developed a friendship and in part it was that friendship and the rule-making process in the court that they utilized to...in the Michigan Supreme Court that they utilized to resolve the questions of full faith and credit between tribal courts and state court systems."

Ryan Seelau:

"Are you aware of how many of the tribes have passed the necessary rules or statutes in order for this reciprocity to..."

John Petoskey:

"There are 12 tribes in Michigan and approximately, off the top of my head I don't know the precise number, but I would venture to say 9 or 10 have passed that rule and of the tax agreement, for example, again, it's the same thing, about 9 or 10 have signed onto the tax agreement. There are a couple tribes in Michigan that take a contrary view and that there shouldn't be the reciprocity agreements, there shouldn't be the tax agreements, and they have their own political views as to the source and scope and extent of the tribe's sovereign authority and how to implement that. And I'm not criticizing that. I'm just saying that people do take contrary views from the path that we have taken."

Ryan Seelau:

"I don't want to get too far into it, but in those contrary views to sovereign immunity, the mechanism by which the taxes are not being exchanged?"

John Petoskey:

"Yes. Yes. Yes, sovereign immunity is asserted as a basis for not...sovereign immunity is asserted as a basis for those tribes that continue to sell untaxed cigarettes, for example, or engage in transactions that they allege are not subject to the sales and use tax of the State of Michigan and that ties into a different question, which is, what is the scope of Indian Country based upon the exterior boundaries and the scope of the treaty provision areas?"

Ryan Seelau:

"I want to turn attention to something related and something that you've talked quite a bit about in your time as an [NNI] Indigenous Leadership Fellow and that's the Bay Mills Indian Community case and you gave a talk on the case yesterday so we don't need to go into all of the history and details, but I was wondering if you could just briefly give a quick synopsis of what that case is about and perhaps more importantly why that case has been in the news lately or what the concerns about that case going before the Supreme Court are."

John Petoskey:

"Okay. So the Bay Mills Indian Community alleges that under a statute called the Michigan Indian Land Claims Settlement Act, which implements an Indian Claims Commission judgment, that the terms of the statute created automatic restricted fee if they used resources from Michigan Indian Land Claims Settlement Act funds to buy property. They presented that theory to the National Indian Gaming Commission in a geographic specific amendment to their gaming ordinance, which the National Indian Gaming Commission informally rejected. They then revised their amendment of their gaming ordinance to basically parallel and parrot the provision of what Indian Country is in the Indian Gaming Regulatory Act. And based upon that provision of their gaming ordinance and the acquisition of an off-reservation casino located in Vanderbilt, Michigan, which is in basically the backyard of another tribe, the Little Traverse Bay Bands of Odawa Indians, they opened a casino alleging that the acquisition of the property created automatic restricted fee and that based upon the federal rules promulgated May 20, 2008 in regard to the Seneca Indian Land Claim Settlement Act, that restricted fee was not subject to Section XX of the Indian Gaming Regulatory Act. In other words that it was effectively a loophole, that they didn't have to go through the after acquired property analysis under Section XX and that restricted fee automatically became Indian Country, and if it was automatically Indian Country, they could engage in gaming and they opened a gaming facility. The State of Michigan along with Little Traverse Bay Bands sued for an injunction arguing that Michigan Indian Land Claim Settlement Act did not create restricted fee. They based their authority for the suit under a provision of the Indian Gaming Regulatory Act, which was 2710.D.7.A.ii which provides a five-part test for a state or tribe to sue in federal court to enjoin a gaming operation on Indian lands conducted in violation of a compact that is in effect. And so in that statement, there are about five elements that you have to meet for the cause of action. That provision both establishes federal jurisdiction, creates the cause of action, and waives by statutory abrogation, waives the immunity of the tribe that you're suing against. So Bay Mills argued that the complaint by the State of Michigan and Little Traverse Bay Bands was defective and did not meet all of the elements of 2710 because one of the counts alleged that the casino was not on Indian lands. Therefore if you're construing the complaint, if it's not on Indian lands and the conjunctive nature of 2710.D.7.A.ii of the five elements that the Little Traverse Bay Band had a defective complaint by alleging that the casino was not on Indian lands, if it's not on Indian lands there's no federal jurisdiction and there's no waiver of...there's no abrogation of immunity by the statute because the statutes in order to abrogate the immunity under case law have to be strictly construed and followed. That argument was not successful in the federal district court by Judge Maloney and he had an expansive reading of 2710 and relied on a 10th Circuit case that focused more on whether the gaming activity is a violation of the compact and ruled that there was also federal jurisdiction under two other related provisions, 1331 for the federal question of whether or not the Michigan Indian Land Claim Settlement Act created the restricted fee, and also that 1362, which provides authority for a tribe to sue in federal court, that that provided an additional basis for federal jurisdiction. He did modify both of those provisions when Bay Mills pointed out that the Sixth Circuit decision had already issued opinions contrary to that in 1331 and 1362, but he did reaffirm the proposition that an expansive reading of 2710 focusing on whether the tribe, Bay Mills, was violating the compact was a sufficient basis for the abrogation of their immunity under federal law and continued...and rejected their motion for reconsideration on the injunction. At that point, Bay Mills filed an interlocutory appeal to the Sixth Circuit and then briefing was completed and oral argument was held in May of 2012 and then opinion was issued by Judge Kethledge of the Sixth Circuit was the author and he essentially accepted Bay Mills' proposition that 2710.D.7.A.ii has five elements and all of the elements have to be met for there to be federal jurisdiction and for there to be a statutory abrogation and if you construe the complaints of the Michigan...the State of Michigan and the tribe, they are alleging that the casino is not on Indian land, therefore effectively they knocked themselves out of court because they are missing an essential element. So that is the case that's up on appeal. There are some ancillary issues in there that I don't want to go into that relate to the State of Michigan's argument under the Assimilated Crimes Act and also the scope of 1331. The issue that is up on appeal is whether 2710 waives the immunity in the expansive reading that Judge Maloney had in the federal district court or whether 2710 has to be read in a very restrictive manner...explicit manner such as Judge Kethledge said in the Sixth Circuit. So the state's argument, which was filed in August, argues that there's a statutory misinterpretation and that Judge Maloney is correct in his interpretation, but then they go on to an extreme position by saying, "˜And even if Judge Kethledge is right that sovereign immunity, in this particular case, should be modified by the court as part of the common law of the court, the state is urging the Supreme Court to essentially override its common law jurisprudence on sovereign immunity,' and that's where the big danger lays because the jurisprudence has established in the past through CNL in 2001 and Kiowa in 1998, there was a developing analysis of on-reservation, off-reservation, commercial versus governmental and the state is urging that the Supreme Court should adopt an analysis that off-reservation commercial activity is subject to a common law diminishment of sovereign immunity. They are urging the court to say any activities that are off the reservation of a commercial nature the tribe cannot assert sovereign immunity. So that's where the big danger is."

Ryan Seelau:

"I'd like to change topics a little bit now and talk about the sort of legal foundations of nation building. And what I want to talk to you about specifically is sort of the role of culture in legal institutions or in legal doctrine and things of that...and I was wondering how you, over your career, have seen the role of culture play out in legal systems because previously you talked about how, in the previous interview you talked about how you worked...in various parts of the country you worked with the Pueblos in New Mexico and you worked with Alaska native villages in Alaska and you've worked in various contexts and I was wondering how you see the same sort of goal, which is carrying out justice in Indian Country, how you're seeing that process change based on the culture that you were working within."

John Petoskey:

"The example that I used is actually quite dated and I don't think it's relevant to New Mexico anymore, but earlier in my career I worked at Indian Pueblo Legal Services and I worked for the eight northern pueblos and one of the pueblos I worked for was Taos Pueblo and at Taos there was an individual who was a tribal member that only spoke the Taos language and she was suffering from extreme alcoholism that impaired her judgment. At that time they called it 'organicity.' I'm not certain what that phrase means, but she would not leave the village and she was creating distress by her behavior in the village through her alcoholism. The pueblo had made numerous attempts to correct her behavior in their internal mechanisms that I'm not familiar with and then they came to the Legal Services and said, "˜Well, how do we deal with this particular situation?' And in the state law system at the time for somebody that was suffering from extreme alcoholism where they were doing harm to themselves you could petition under the New Mexico Health Code for an involuntary commitment in the district court of New Mexico to place the person in an institution against their will, an involuntary commitment petition is what it was called, but the problem in that case was that the person lived in Taos and would not leave the pueblo. So there was no subject matter civil jurisdiction for an internal relation that was taking place at Taos. So the court didn't have civil jurisdiction, the New Mexico Supreme Court did not have civil jurisdiction to initiate the process, nor would the individual come out of the pueblo. So given that set of circumstances and the language problems connected with her simply speaking the Indian language as her primary language, I met with the pueblo officials and with three caciques and explained that I thought what we should do is establish if you will a panel of caciques that would address this issue in the context of New Mexico law of the elements that you had to meet for an involuntary commitment under New Mexico law. And so they agreed with that and the panel of three caciques were convened with the person who was suffering from alcoholism and I went through the New Mexico Health Code on the elements that had to be met to prove that this person should be subject to an involuntary commitment and it was translated into the Taos language for the individual and explained what was going on and the caciques then agreed that she met all of those criteria and ordered that there would be this involuntary commitment. I then wrote up the order following the procedures that had just taken place and took that order to the New Mexico District Court and sought full faith and credit of what had occurred at Taos Pueblo and had to go through a hearing with a district judge in New Mexico arguing that the process that occurred at Taos Pueblo conformed with the procedural due process values of the New Mexico Health Code and the judge did order that the person was...could be involuntarily committed to a facility that was under New Mexico's control and that's what occurred. And so that was somewhat of a creative use of...I'm not saying that in a self-congratulatory sense. In response to your question that's what I'm saying. It was a use of using the cultural norms of the caciques having the authority that this person, the person suffering from alcoholism, respected and going through that process even though it was New Mexico substantive law, but explaining it to the pueblo officials and the pueblo officials opining that they agreed that this individual should be involuntarily committed because of her behavior."

Ryan Seelau:

"Another experience professionally that you have mentioned, which in some respects is very different from what happened with the pueblos, but on the other hand, also involved getting the sort of cultural norms into a concrete legal document was that of the Chickasaw Constitution being written."

John Petoskey:

"Oh, yes."

Ryan Seelau:

"I was wondering if you could talk a little bit about that story and what you observed and how the Chickasaw people...what the process they went through to sort of write and get their constitution done."

John Petoskey:

"So in 1908 the Curtis Act was passed and what the Curtis Act did was allegedly dissolve the Choctaw, Chickasaw and Cherokee legislature and created a system of appointment of governors for those...for the five civilized tribes in Oklahoma and that system existed from 1908 to the 1970s when the National Indian Youth Council, a place I worked at, in the late...in the early "˜80s, but in the, I think it was 1973 two attorneys, Tom Lubin and John Kelly filed a lawsuit on behalf of private plaintiffs called Harjo suing the Secretary of Interior and the case was entitled Harjo v. Kleppe arguing that the 1908 Curtis Act did not dissolve the Chickasaw legislature. So here you have a historical basis of the five civilized tribes having a history and a culture of constitutional government of checks and balances and having vibrant complex governments servicing the needs of Choctaws and Chickasaws in the...after their removal from the southeast to Oklahoma, they had a legislature, they had the Light Horsemen Cavalry, they had enforcement of their...they had a functioning democracy and a constitutional form of government. And then you had the United States basically destroying the government saying, "˜You can...we are going to destroy your constitutional government' and that's what the Curtis Act attempted to do. And the argument in Harjo v. Kleppe was that the Curtis Act did not, in fact, dissolve the Chickasaw government and the regime that the Secretary of the Interior had set up over the last 50 years of appointing the governor was clearly in violation of the constitutional cultural history of the Choctaws and Chickasaws and that the Curtis Act's implementation by the Secretary was incorrect. That argument and proposition ultimately prevailed in the federal district court and in the federal court of appeals and that was due to the litigation efforts of, as I said, Tom Lubin and John Kelly. And so when I came into the case in the 1980s, it was implementing that decision to reform the constitutional government and our clients, which were the, if you will, the dissidents against the governor of Chickasaw and the dissidents against the governor of Choctaws were leading a method that was...had to be administered by a federal supervision because of the level of animus that existed between the parties to re-establish a constitutional government and it was negotiations under federal supervision of a constitutional structure that was to be re-implemented at Choctaw and Chickasaw in a constitutionally supervised election of the constitution once it was completed. And that was basically bringing back the cultural tradition of a legislature in Choctaw and Chickasaw in the mid "˜80s and the constitution was approved and the tribe continues today."

Ryan Seelau:

"I'd like to talk a little bit now about Grand Traverse Band's justice system, ask you a few questions about that sort of along the same lines, but first I was wondering if you could just talk about maybe just a brief history of how the justice system, not how it started but when it started and what it looked like and then how it's grown into -- you've already mentioned the arbitration proceedings that are now available in the justice system, you mentioned in the previous interview about peacemaking -- and just sort of take us a little bit through the timeline of how that's grown over time."

John Petoskey:

"As I mentioned, the tribe was recognized in 1980. The tribe was engaged in litigation with the federal government over our constitutional provision on membership. At that time [President] Reagan and James Watt was the Secretary of the Interior and our membership was expansive in terms of the number of people that we said were eligible for enrollment in our tribe and then the Reagan administration and James Watt's position was essentially that the membership shouldn't grow because that's a bigger liability on the part of the federal government and therefore we're arguing for a more limited membership, and that took some time to resolve that issue because our argument was that the tribe determines its membership and not the federal government. The federal government actually alleged in letters that they would and essentially terminate the tribe again by taking away federal funding and taking away the recognition and the tribe's reaction was, "˜It takes an act of Congress to do that. You're going beyond the scope,' and so things...it took several years to resolve that membership issue. I only say that because, as a consequence, the constitution was not actually ratified until 1988. And so...but we were developing the tribal court even though we didn't have a constitutional basis for that tribal court because of this membership dispute. But in our constitution, we provide that the judiciary is a separate branch of government and is independent. So once the constitution was provided, we wanted to assure that independence of the judiciary. And one of the legislative acts that was done was to fund the judiciary on a percentage basis of our net income that did not...that could not be varied without essentially a super majority of the legislature changing that. And so that worked relatively well for the first couple of years, but then our enterprises became very successful, and as a consequence the percentage of funding for the tribal court went up dramatically given the fact that it was based upon a percentage of the net income of the tribe. And so there was the super majority to revise that allocation of funding to comport with the amount of money that the tribe was making at the time. And that's still a question that we have on how properly to fund the judiciary without using the power of the purse string to incapacitate the judiciary. The percentage method was one solution that we thought. It didn't work out because of a mechanical application of that percentage method and a rising income stream has a disproportionate impact on the amount of money that's available to the judiciary, and so I am really open to other avenues that people have on how they fund the judiciary on a basis that doesn't use the power of the purse string to limit the judiciary. That's what part of the independence question that frankly...a riddle that we have not solved. And I'm not certain how other tribes do it. I know there's that common problem in the federal government that has that. Justice Roberts is always complaining about the lack of funding that Congress is giving to the federal court systems. It's not a problem that has been solved in the greater federal system, but I think it's a problem that tribes should attempt to come up with a solution [for] if they want an independent judiciary. But having said all that on the funding, part of developing the culture of a strong judiciary is to recognize the power of the council and what it can do with an opinion that they don't like that the judiciary issues. It's easy to say that you shouldn't remove an individual or fire an individual for an opinion that has been issued and Grand Traverse Band does not do that. We have in our constitution the individual is appointed for a term of years, compensation cannot be reduced while the individual is in office and the only...but an individual -- and this is in our constitution -- individual can be removed for gross neglect, misconduct in office, and we incorporate by reference the American Bar Association Judicial Code of Conduct for a basis for removal. And Grand Traverse Band has undertaken removal proceedings against a judge on the basis of misconduct in office and that involves not a decision of the tribal council -- the tribal council is a litigant, a petitioner -- involves a decision of the appellate judiciary people at Grand Traverse Band judging a member of their own on whether or not the petition has merit for removal. So that's what I've always advised the tribal council. You can either appeal a decision you don't like, you can wait until the power of appointment is up and appoint that individual and you can use, and I know this...you can use political considerations in the appointment process. It's perfectly legitimate in my view when you're appointing a judge to say, "˜I don't want to reappoint you because you made XYZ decision that I disagree with.' That's an appropriate political exercise of the power of appointment. Or you can petition for removal under a decision that you don't like and those are the three methods that the council has used in its relationship with the judiciary. And conversely, the judiciary has removed members of the tribal council where the council members have committed self-dealing acts and the petitioner in that case is a other...majority of the council members vote to file a petition for removal against an individual councilor, the judicial panel hears the matter, an attorney is appointed for the councilor that is subject to removal and it's a litigated question on fact and law, on whether or not the particular alleged behavior amounted to misconduct in office by the tribal council. So the judiciary has opined in the past that the petition that the council filed by majority vote for removal was...had a meritorious basis and the councilor was removed from office by an opinion of the judiciary. So it goes both ways. Those are building strong institutions."

Ryan Seelau:

"We don't have a lot of time, but I want to ask at least one last question, which I think relates or is connected strongly to what you were just talking about and that's this week several times you've talked about how at least at Grand Traverse Band you've seen the sort of process...the justice system-building process as a goal of moving from an indeterminate process to a determinate one and I was wondering if you could tell us what you mean by that and explain why you think that's a good goal to have."

John Petoskey:

"Okay. This was in response to a -- which I have heard repeatedly here and also in other contexts -- that politics should be out of the judiciary, and it's using 'politics' as a negative word. My point was is that I don't think that is the appropriate description. Politics is, in some senses is a dirty word, but in my perspective it's not necessarily a dirty word because it's the process of governance of competing interests that constituents bring to the tribal council and they...this has happened on occasion that a tribal member will have an adverse decision from the judiciary and will call up a councilor and say, "˜This is a bad decision by the judge. You should do something about it.' And then people say, "˜Well, that's politics, that shouldn't happen.' My point is that that conversation between the constituent and the council member is hard to control because that's a council member listening to his or her constituent talking to them as a representative. It's a republican form of government and so the impact that the tribal citizen has is to complain to their elected official and that's what they do so I don't see that as necessarily bad. I do think it's inappropriate though if the elected official then attempts to intervene in the process and to change the end result and that's where I bring up the dichotomy of 'determinate' and 'indeterminate,' because when the elected official intervenes in the process, there are no rules that govern the elected official's behavior and the scope of his intervention and the standards that define what is permissible and impermissible. In other words, it's indeterminate. And the types of activities that should be allowed are only determinative activities where the standards of conduct and the rules of conduct and the appropriate actions are defined by past precedent in which people are arguing about standards that are already in place. Where we get in trouble is when we enter into relationships where there are not pre-existent determinate standards and that goes across the board. Everybody wants to know that what is happening is going to be resolved by a determinate process. They may not agree with the end result, but they do not disagree with the process and in the United States, Bush v. Gore is a perfect example of that. Both the partisans on the part of Bush and Gore disagreed with the end result that the Supreme Court had, but they didn't disagree with the process. Once the decision was made it wasn't...armies weren't called out to enforce it, there wasn't contrary protests of...it was over. Everybody agreed the process had worked and you continued to disagree with the opinion, but it was a determinate process that ended. And that should be the goal of judicial systems and legislative systems to act in a determinate manner and not an indeterminate manner because your constituents, your vendors, your business invitees, your tribal citizens will all appreciate that even if they disagree with the end result because they recognize that the process is determinate and legitimate. Indeterminacy makes illegitimacy."

Ryan Seelau:

"I think that's an excellent point and I'm glad that we were able to talk about it a little bit. John, thank you for sitting down with me and talking again. That's all the time we have in this program of Leading Native Nations. To learn more about Leading Native Nations, please visit the NNI's website at nni.arizona.edu. Thank you for joining us. Copyright 2013. Arizona Board of Regents."

BIA Head Kevin Washburn Speaks to ICTMN About Bay Mills and the Need to Resolve Water Rights

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Interior Secretary — Indian Affairs Kevin K. Washburn was in New York City in September as the historic Peoples’ Climate March and the United Nations General Assembly opened its 69th regular session with the first World Conference on Indigenous Peoples, where he added to our excitement here at ICTMN by taking a few hours to sit with us for an interview.

Washburn holds the government’s top administrative position dealing with federal Indian law and right now he’s in the midst of reforming the most controversial regulations in Indian county — the rules for federally recognizing an American Indian tribe...

Resource Type
Citation

Courey Toensing, Gale. "BIA Head Kevin Washburn Speaks to ICTMN About Bay Mills and the Need to Resolve Water Rights." Indian Country Today Media Network. November 17, 2014. Article. (https://ictnews.org/archive/bia-head-kevin-washburn-speaks-to-ictmn-about-bay-mills-and-the-need-to-resolve-water-rights, accessed March 8, 2023)

 

The Bay Mills Case: An Opportunity for Native Nations

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On May 27th, the U.S. Supreme Court finally handed down its decision in the Michigan v. Bay Mills Indian Community case. The good news for Native nations is that the Court upheld the doctrine of tribal sovereign immunity, opting not to carry out any of the doomsday scenarios many suggested could occur. The bad news is that the doctrine of tribal sovereign immunity remains vulnerable to attack by potential future Supreme Court decisions and/or Congressional action. Fortunately, the durability of this vital tool of tribal sovereignty depends to a significant degree on what Native nations do from this point forward...

Resource Type
Citation

Seelau, Ryan & Ian Record. "The Bay Mills Case: An Opportunity for Native Nations." Indian Country Today Media Network. June 24, 2014. Opinion. (https://ictnews.org/archive/the-bay-mills-case-an-opportunity-for-native-nations, accessed February 12, 2024)

Will the Supreme Court Use Bay Mills Case to Blow Up Tribal Sovereignty?

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As regular visitors to this site and other Indian country media outlets no doubt have seen in recent weeks, Native nation leaders, tribal attorneys, and federal Indian law practitioners alike are gravely concerned about a case currently pending before the Supreme Court: State of Michigan v. Bay Mills Indian Community.

The case involves the Bay Mills Indian Community, a federally recognized tribe located not far from the U.S.-Canadian border in northern Michigan. In November 2010, Bay Mills opened a gaming facility about 125 miles south of its reservation on a small parcel of property it had recently purchased. Situated along an interstate highway, the facility was located just 35 miles from a casino owned and operated by the Little Traverse Bay Bands of Odawa Indians (LTBBO). Bay Mills’ decision to open the gaming facility caught both LTBBO and the State of Michigan by surprise, as Bay Mills Indian Community decision-makers had not followed the usual formal process of putting the off-reservation land into trust before opening the facility...

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Citation

Seelau, Ryan & Ian Record. "Will the Supreme Court Use Bay Mills Case to Blow Up Tribal Sovereignty?" Indian Country Today Media Network. November 5, 2013. Opinion. (https://ictnews.org/archive/will-the-supreme-court-use..., accessed February 23, 2023)

How Tribes Can Prepare for Tribal Sovereignty Blow From Supreme Court

Producer
Indian Country Today
Year

In the first part of this two-part series, we provided a short history of the upcoming U.S. Supreme Court case State of Michigan v. Bay Mills Indian Community, discussed its relevance to the sustainability of the legal doctrine of tribal sovereign immunity, and detailed two potential outcomes of the case, what they would mean for tribes, and what tribes should consider doing to prepare. In this part, we detail two other, far more harmful potential outcomes, and offer tribes some concluding food for thought about the relationship between tribal sovereign immunity and their efforts to govern well...

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Citation

Seelau, Ryan & Ian Record. "How Tribes Can Prepare for Tribal Sovereignty Blow From Supreme Court." Indian Country Today. November 8, 2013. Opinion. (https://ictnews.org/archive/how-tribes-can-prepare-for-tribal-sovereignty-blow-from-supreme-court, accessed July 18, 2023)

The Bay Mills Buck Stops With NIGC

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With a case of potentially catastrophic consequence for Indian country now pending before the U.S. Supreme Court, all of the players who can possibly prevent the disaster are either sitting on their hands or pointing fingers.

The National Indian Gaming Commission has failed to act, citing a woefully incorrect legal opinion regarding its enforcement authority and the unfortunately timed departure of former NIGC Chairwoman Tracie Stevens. The Department of Justice sits publicly idle, too, despite its own civil enforcement power. Then there is Department of the Interior, whose Solicitor has written less than stellar lands opinion of her own, and whose Assistant Secretary for Indian Affairs simply blames the Bay Mills Indian Community for “put[ting] us in this position.” Meanwhile, the National Indian Gaming Association says that it is Interior who must take action “to moot the case and prevent a negative Supreme Court decision,” while completely turning a blind eye to the NIGC...

Resource Type
Citation

Galanda, Gabriel & Ryan Dreveskracht. "The Bay Mills Buck Stops With NIGC." Indian Country Today Media Network. November 6, 2013. Opinion. (https://ictnews.org/archive/the-bay-mills-buck-stops-with-nigc, accessed February 12, 2024)