CLAY, Circuit Judge.
The Little Traverse Bay Bands of Odawa Indians (the "Band") appeal the district court's decision granting summary judgment to Defendant Governor Gretchen Whitmer, in which the court held that the Treaty of 1855 did not create an Indian reservation for the Band under federal law. The Band has lived in the State of Michigan for centuries. While often referred to as one tribe, the Band consists of several distinct factions, including at least five Ottawa and Chippewa tribes. In the nineteenth century, the Band signed several treaty agreements with the United States government that allowed them to reserve and subsequently own land in Michigan. The meaning of one of those treaty agreements is in dispute here on appeal. For the reasons stated below, this court
A. Factual History
Prior to the colonization of the Americas, the Little Traverse Bay Bands of Odawa Indians inhabited for centuries what is now considered northern Michigan. At the turn of the nineteenth century, with the population growing within the United States, more white Americans began to settle in territories like Michigan where the Band resided. As a result, the federal government took tribal land for its settlers and removed tribes, like the Band, to Indian settlements in the West, where they could supposedly be assimilated into American society as citizens. For years, officials in the federal Department of Indian Affairs considered when and how to
In the summer of 1835, the Band contacted President Andrew Jackson to ask whether they could sell some of their land, and in return, stay in Michigan. President Jackson had not considered purchasing the land at first but inquired as to the amount for which the Band would sell the land. Jackson delegated the negotiations to Michigan representatives, who instructed the Band not to travel to Washington unless requested. Despite that message, and fearful that the United States would remove them by force, tribal members arrived in Washington in December 1835, looking to negotiate. It appears, however, that no federal official met with the Band, and instead, the Band's wishes were communicated through letter.
Following the letter in 1835, the federal government agreed to purchase some of the Band's land and allow them to stay in Michigan temporarily. In 1836, Secretary of War Lewis Cass appointed Henry Schoolcraft, Acting Superintendent of Indian Affairs for the Michigan Territory, to be the federal government's primary negotiator with the Band and to encourage them to move westward after selling their land. In March of 1836, Cass wrote Schoolcraft that he should "procure the land upon proper and reasonable terms for the United States" and "extinguish the Indian titles as our settlements advance so as to keep the Indians beyond our borders." (ECF No. 559-15 at PageID # 8096.)
Treaty of 1836
In March of 1836, the Band traveled to Washington, D.C. to meet with federal officials, including Schoolcraft. On March 15, 1836, Schoolcraft started the negotiations by agreeing to negotiate with delegates of every tribe within the Band. He then asked each tribal leader how much of their land they wanted to sell. To facilitate the agreement, he also proposed that the federal government would pay any debts the Band had to traders in Michigan and distribute annual annuities over twenty years for education, agriculture, and medicine. Notably, Schoolcraft informed the Band that the President believed "[n]o objection will be made, if you deem it imperative, to your fixing on proper and limited reservations to be held in common; but the President judges it best, that no reservations should be made to individuals." (ECF No. 558-4 at PageID # 6870.)
As the negotiations proceeded, different tribes within the Band, primarily the Chippewas and the Ottawas, differed over how the land should be sold. One tribal leader expressed "fear that the whites, who will not be our friends, will come into our country and trouble us and that we shall not be able to know where our possessions are." (Id. at PageID # 6871.) The leader hoped that "some of our white friends [would] have lands among us and be associated with us" to ease tensions between the races. (Id.) Later in the negotiation, an Ottawa chief said he would refuse to sell their land after seeing how small the Band's reservation would be. (Id. at PageID # 6872.) As others spoke, a delegate from the tribe Labre Croche said he believed that white settlers had pressured the Band into selling their land, and that
Article 1 of the Treaty provides that the Ottawa and Chippewa nations would cede land to the United States located in the eastern portion of the Upper Peninsula of Michigan and the northern portion of the Lower Peninsula. In Article 2, the Band would reserve land "for their own use, to be held in common," including 50,000 acres on Little Traverse Bay, 20,000 acres on the north shore of Grand Traverse Bay, 70,000 acres on or north of the Pieire Marquetta river, 1,000 acres located by Chingassanoo, or the Big Sail, on Cheboigan, and 1,000 acres located by Mujeekewis on Thunderbay River. (Id.) Alongside that provision, Article 3 outlined other settlements where the Band could locate under the agreement, including several islands in northern Michigan. And as agreed, Articles 4 and 5 required the United States to provide annuities for 20 years to assist the Band in education, agriculture, and medicine and to settle debts the tribes had with traders in their area. Other provisions provided land west of the Mississippi River in case the Band decided to relocate, supported tribal members who were of mixed race, and provided reimbursement to the Band's leaders for traveling to negotiate the treaty.
Events leading to the Treaty of 1855
After signing the Treaty of 1836, the Band lived on the temporary reservation amidst an uncertain future in Michigan. The Treaty was meant to expire in 1841. In 1839, the Chippewa faction of the Band wrote to the Governor of Michigan to express "[h]ere alone, in Michigan, it is here that we feel as if we could be happy." (ECF No. 559-20 at PageID # 8133.) They asked the Governor whether those who desired to stay in Michigan would be allowed to, whether they would have the right to buy lands from the government, and whether tribal members would be acknowledged as citizens. Two years later, the Band asked President John Tyler to have the Treaty extended, but no record suggests it ever was. The Treaty expired in 1841, but the United States never removed the Band from Michigan. By the next decade, the federal government had abandoned its plan to move the Band west to a permanent reservation. In March 1854, the head of the Michigan Indian Agency, Henry Gilbert, wrote a letter to the federal Commissioner of Indian Affairs outlining his intentions for the Band, stating, "that within three or four years all connection with & dependence upon Government on the part of the Indians may
(Id. at PageID # 8286.)
Meanwhile, in January of 1855, the Band wrote to the Commissioner of Indian Affairs, George Manypenny, indicating that they wanted to accumulate property in Michigan to leave to their children. In February of 1855, the Band wrote another letter expressing anxiety over white settlers who were claiming land near them and petitioned to resolve their standing under federal treaties. By 1855, settlement in Michigan had risen steadily. As a result of this trend, Manypenny wanted to set land aside for Indian settlement that would not be sold in the public marketplace. Like Gilbert, Manypenny wanted to allot individual homes to the Band's members, and eventually, end their dependence on the federal government.
In December of 1854, Manypenny petitioned the Commissioner of the General Land Office for specific tracts of land to be set aside in Michigan. In May of 1855, Manypenny, in a letter to Secretary of the Interior Robert McClelland, wrote:
(ECF No. 559-43 at PageID # 8376.)
Following Manypenny's request, and in anticipation of treaty negotiations with the Band, President Franklin Pierce issued an executive order later that May and set aside specific tracts of land earmarked for Indian settlement in what is now Emmet County, Michigan and Isabella County, Michigan.
Negotiations for the Treaty of 1855
In July of 1855, the Band's leaders met with federal and state officials to negotiate the Treaty of Detroit, now known as the Treaty of 1855, where both sides agreed that the Band would stay permanently in Michigan. Gilbert led the negotiations with the Band. On the first day, the Band's leader, Assagon, wanted to settle outstanding obligations the federal government had to the Band from prior treaties. To the Band's disappointment, the government had few obligations remaining under previous treaties after counting treaty annuities already provided. Manypenny agreed to pay $200,000 to the Band but emphasized that the government wanted the Band to be independent. At several points in the negotiations, the Band requested that the government keep the principal money and subsequently distribute its interest, so the
(Id. at PageID # 7001.)
After Manypenny spoke, a Band leader at the meeting requested that "[w]e wish that you would give us titles — good titles to these lands. That these papers will be so good as to prevent any white man, or anybody else from touching these lands." (Id. at PageID # 7007.) Gilbert stated that the government intended "to allow each head of family 80 acres of lands and each single person over 21 years of age 40 acres of land." (ECF No. 558-9 at PageID # 7067.) And Manypenny suggested that "it will be easier for the government to give you absolute titles," subject to alienation restrictions for a short time period. (Id. at PageID # 7070.) On July 31, 1855, after further negotiation, the Band and the federal government signed a treaty outlining the terms of the agreement. At the negotiation's conclusion, the Band's leaders expressed satisfaction with its terms. Before leaving, one Band leader proclaimed, "We are satisfied with what is done. We wish you to carry out the treaty as it made. We believe it to be good." (Id. at PageID # 7083.)
The Treaty of 1855
Overall, the Treaty of 1855 reflected the negotiations between the Band and the federal government. Article 1 described the specific tracts of land the United States would withdraw from sale to be made readily available to the Band. Treaty with Ottowas and Chippewas (1855 Treaty) (July 21, 1855), Art. 1, 11 Stat. 621. This first provision provided each head of the family with 80 acres of land, or each single person over 21 years of age with 40 acres of land. Article 1 also required tribal members to make land selections within two five-year periods to be accompanied with a restriction on resale of the land for ten years for those who took title in the initial five-year period. The United States reserved ownership of land the Band did not select within the ten-year timeframe. Lastly, that provision stipulated, "[n]othing contained herein shall be construed as to prevent the appropriation, by sale, gift, or otherwise, by the United States, of any tract or tracts of land within the aforesaid reservations." (Id.)
The Treaty contained other provisions that are not in direct dispute on appeal. Article 2 described the payments that the United States would disburse to the Band; Article 3 released the United States from any claims arising out of any previous treaties; Article 4 provided for translators to help in communication between the
Events following the Treaty of 1855
After Congress ratified the Treaty, the federal government poorly implemented the Treaty's provisions. The Michigan agency charged with its implementation had significant turnover in its leadership that led to a disorganized rollout of land selection. The dysfunction delayed some of the Band's over 5,000 members from purchasing land in a timely fashion. And the federal government did not distribute the annuities on the schedule promised. A Michigan newspaper, The Grand Traverse Herald, described the difficulty the Band had in obtaining land under the Treaty. In a profile in April 1869, a journalist documented that the "Indian Department failed to make such selections of land for said Indians within the time specified in said treaties; in fact, said selections were not completed until the year 1866." (ECF No. 600-101 at PageID # 10937.) Michigan delegates in Congress even considered a resolution to extend the time for tribal members to purchase land but were met with resistance from white settlers who wanted the land to be returned to the public marketplace.
For the most part, the federal government resisted white settlers' demands to occupy the lands held for the ten-year term in the Treaty. But occasionally their efforts were unsuccessful. For example, the Michigan Indian Agency wrote to the federal Commissioner of Indian Affairs in 1865, stating "certain white men through the Agency of Indians had been purchasing some of the lands, which were withdrawn from sale for the use and benefit of the Ottawa and Chippewa Indians in this state." (ECF No. 600-91 at PageID # 10901.) To make matters worse, the federal government did not provide timely title to the land as promised to many Indian families. In 1872, a Michigan Indian Agent wrote to the federal Commissioner of Indian Affairs to express that certain tribes "were not furnished their patents... [and] we were all surprised to find that only the Mackinaw, and Little Traverse bands were furnished, while the other bands about equal in number were all without patents though they held the same promising official certificates." (ECF No. 600-110 at PageID # 10996.) That same year, Congress passed legislation allowing unsold land to return back to the public, alongside additional provisions to assist tribal members in receiving patents in subsequent years. As stipulated, the United States returned all unsold land contained in the Treaty back to the marketplace for others to purchase. And eventually, the remaining Band members who wanted to purchase land under the Treaty were able to do so. In total, 1,863 Band members received land covering 121,450 acres. Primarily, Band members received land plots in northwest Isabella County, Michigan and central Emmet County, Michigan. Thereafter, members of the Band settled permanently on the land, each holding an individual title to his or her property. While the Band held title to the lands they selected, over the next several decades, many lost their homes as a result of fraud or tax forfeiture. In the twentieth century, the Treaties the Band signed once again came into dispute.
Events before the Indian Claims Commission
Decades after signing the Treaty, in 1949 and 1951, the Band filed claims before
The Band brought three claims before the ICC that are relevant to the present case. In 1949, under ICC Docket No. 58, the Band claimed that the United States provided "grossly inadequate and unconscionable" consideration in exchange for the land that the Band ceded in the Treaty of 1836. (ECF No. 429-1 at PageID # 5116.) In sum, the Band believed that the land was worth more than $1.25 per acre, and yet, the federal government paid 16.8¢ per acre at the time of cession. The Band asked the court for compensation for the reasonable value of the land, attorney's fees, and other expenses that would occur because of the proceedings. The same year, the Chippewa tribe brought a separate case before the ICC, under Docket No. 18E, arguing a claim similar to the one presented in Docket No. 58, which asserted that the United States had provided inadequate consideration under the Treaty of 1836. In addition, they requested compensation for land ceded because the federal government had executed the relevant treaties under misrepresentation and fraud.
The ICC consolidated both dockets into a single proceeding. On May 20, 1959, the Commission issued a finding of fact, stating in sum that the tribes had ceded 12,044,934 acres of land in 1936, and retained 401,971 acres for themselves as a temporary reservation. See Chippewa Indians, et al., v. United States, 7 Ind. Cl. Comm. 576 (1959). Almost ten years later, in 1968, the ICC determined that the value of the ceded land in 1836 was 90¢ per acre, or $10,800,000 in full, after considering its agricultural and farming potential. See Chippewa Indians, et al., v. United States, 20 Ind. Cl. Comm. 137 (1968). In response, the federal government argued that the value of the land should be offset by the 121,450 acres allotted to the Band in the Treaty of 1855. In rejecting the government's position, the Commission determined that the purpose of the "1855 Treaty was to return to the individual Ottawas and Chippewas a portion of the lands which they had collectively ceded in [the Treaty of] 1836." (ECF No. 429-5 at PageID # 5218.) In its opinion, the Commission expressed further:
But the Commission also decided that the government should not pay for land the Band already owned. Instead, the ICC deducted $109,305.67 from the compensation owed to the Band. After a final calculation, it concluded that the Band was owed $10,300,247, which was subsequently amended to $10,109,003.55 in further proceedings.
In 1951, the Band filed a third petition, claiming that the Band was owed compensation for land that was never allotted to them under the Treaty of 1855. The Commission rejected the claim, ruling that the outcome of prior ICC proceedings was the final determination in regards to the Treaties, and the Band was now barred from raising further arguments about the agreements. This ruling was the final legal proceeding regarding the Treaties until the 21st century. Until this day, many members of the Band still reside in northern Michigan.
B. Procedural History
On August 21, 2015, the Band filed a lawsuit in federal court in the Western District of Michigan against Governor Rick Snyder, seeking a declaration that the Treaty of 1855 created a reservation for the Band. As part of the lawsuit, the Band petitioned for an injunction against the State of Michigan to prevent any actions that ran contrary to the Band's reservation status under federal law. Thereafter, several other parties, including the City of Charlevoix, the Emmet County Lake Shore Association, The Protection of Rights Alliance, and several other townships and cities located in northern Michigan, intervened to litigate their interests in the outcome of the case. On May 20, 2016, the Band filed a motion for partial summary judgment on their claim that the Treaty of 1855 established a reservation, to which Defendant Snyder, and various cities and counties, as Defendant-Intervenors, filed an opposing motion for summary judgment. In his motion, Defendant Snyder argued that 1) the Treaty of 1855 did not meet the three-part test for Indian country; 2) if the Treaty of 1855 created an Indian reservation, it was temporary and terminated when Band members received their patents; and 3) if the Treaty of 1855 created a permanent Indian reservation, Congress disestablished it in the 1870s. Separately, Defendant-Intervenors filed for judgment on the pleadings, claiming that: 1) the Band should be judicially estopped from arguing that a reservation exists because of its prior proceedings before the ICC; 2) the Band should be barred from relitigating claims under the doctrine of issue preclusion because of the same proceedings previously filed before the ICC; and 3) the ICC's statute of limitations barred the Band from raising further claims in relation to the Treaty of 1855.
The district court rejected Defendant-Intervenors' motion for judgment on the pleadings on January 31, 2019. In a well-reasoned opinion, on August 15, 2019, the district court issued an order granting Defendant's and Defendant-Intervenors' motion
A. The Band's Claim of a Federal Reservation Under the Treaty of 1855
1. Standard of Review
"[T]his court reviews a district court's grant of summary judgment de novo." Rd. Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO v. Dorn Sprinkler Co., 669 F.3d 790, 793 (6th Cir. 2012). Summary judgment may be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). There is a dispute as to a material fact when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th Cir. 2013) (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002)). The court must evaluate the evidence in a motion for summary judgment "in the light most favorable to the party opposing the motion." Nickels v. Grand Trunk W. R.R., 560 F.3d 426, 429 (6th Cir. 2009).
2. Relevant Legal Principles
Under federal law, Indian Country is land "validly set apart for the use of the Indians, as such, under the superintendence of the [g]overnment." Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (quoting United States v. John, 437 U.S. 634, 648-49, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978)). "Indian Country" serves as an umbrella term for Indian reservations, dependent Indian communities, and Indian allotments. See 18 U.S.C. § 1151. Despite its present-day meaning, the word reservation, as used in the nineteenth century, "had not yet acquired such distinctive significance in federal Indian law." McGirt v. Oklahoma, ___ U.S. ___, 140 S.Ct. 2452, 2461, 207 L.Ed.2d 985 (2020). Most typically, Indian reservations were created through acts of Congress that provided tracts of land to tribes, with the right of self-government and outside the purview of state jurisdiction. (Id.) In contrast, Indian allotments were typically smaller lots owned by individual tribal members. Id. at 2463 (citing Cohen's Handbook of Federal Indian Law, § 1.04 (2012), discussing General Allotment Act of 1887, Ch. 119, 24 Stat. 388). Dependent Indian communities formed a third category that "refer[ed] to a limited category of Indian Lands that are neither reservations nor allotments," but were still set aside by the federal government under federal superintendence. Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 527, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998).
To assess whether the Treaty of 1855 created an Indian reservation, we look to the governing agreement between the federal government and the Band. Treaties are "interpreted liberally in favor of the Indians." Keweenaw Bay Indian Cmty. v. Naftaly, 452 F.3d 514, 524 (6th Cir. 2006) (quoting Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999)). Alongside the treaty's language, we may look "beyond the written words to the larger context that forms the [t]reaty, including `the history of the treaty, the negotiations, and the practical construction adopted by the parties.'" Mille Lacs, 526 U.S. at 196, 119 S.Ct. 1187 (quoting Choctaw Nation v. United States, 318 U.S. 423,
3. Application to the Matter at Hand
The district court properly granted summary judgment to Defendants on their claim that the Treaty of 1855 did not create a reservation for the Band. We hold that the treaty provided for allotments of land, which would not fall under federal superintendence, rather than a collective Indian reservation. Under the Treaty's language, its precedent negotiations, and the practical construction of the Treaty provisions adopted between the parties, the land cannot be said to be "validly set apart for the use of the Indians ... under the superintendence of the [federal] [g]overnment." Citizen Band, 498 U.S. at 511, 111 S.Ct. 905 (quoting United States v. John, 437 U.S. 634, 649, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978)); see also Mille Lacs, 526 U.S. at 196, 119 S.Ct. 1187.
i. Land set apart for Indian purposes
Alongside the power of Congress to ratify treaty agreements with tribal nations, "[f]rom an early period in the history of the government it was the practice of the President to order, from time to time, ... parcels of land belonging to the United States to be reserved from sale and set apart for public uses." Hagen v. Utah, 510 U.S. 399, 412, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994) (quoting Grisar v. McDowell, 6 Wall. 363, 381, 18 L.Ed. 863 (1868)). "This power of reservation was exercised for various purposes, including Indian settlement, bird preservation, and military installations, `when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain.'" Id. (quoting United States v. Midwest Oil Co., 236 U.S. 459, 471, 35 S.Ct. 309, 59 L.Ed. 673 (1915)). In the settlement context, land was "validly set apart" when it was "held by the Federal Government in trust for the benefit of the [tribe]." Citizen Band, 498 U.S. at 511, 111 S.Ct. 905. In other words, land would be "segregated from the public domain" for a tribe's settlement. United States v. Pelican, 232 U.S. 442, 445, 34 S.Ct. 396, 58 L.Ed. 676 (1914).
Under Article 1 of the Treaty of 1855, the Band and the United States agreed to allow land in northern Michigan to be "withdrawn from sale for the benefit of said Indians." 1855 Treaty, Art. 1, 11 Stat. 621. The Treaty's language makes clear that the land was "held by the Federal Government in trust for the benefit of the [tribe]." Citizen Band, 498 U.S.at 511. When "construed liberally in favor of the Indians," we conclude that the land was set apart. Naftaly, 452 F.3d at 524.
Coupled with this finding, however, we must also inquire into whether
We hold that the Treaty created an arrangement closer to a land allotment system than a reservation. See Cohen's Handbook of Federal Indian Law, § 3.04[c][iv] (2019); see also id. at § 16.03[e] (describing "public domain allotments" whereby the federal government would authorize Indians who were state citizens to purchase land withdrawn from the public domain and subject to temporary restrictions on alienation and provisions of trusteeship). Therefore, although the Treaty of 1855 might have set apart land for an Indian purpose, that purpose was not a reservation.
Consistent with the above, the language in the Treaty of 1855 is quite different from the Treaty of 1836 that clearly established a reservation between the Band's predecessors and the federal government. Compare 1855 Treaty, Art. 1, 11 Stat. 621 (recording lands "withdrawn from sale for the benefit of said Indians hereinafter provided" and detailing a complex procedure for individual Indians and families to make "selections of lands" and to "take immediate possession thereof" with specified restrictions) with 1836 Treaty, Art. 2, 7 State. 491 (stating plainly that "the tribes reserve for their own use, to be held in common the following tracts...."). To the extent it is appropriate to examine reservation treaties entered between other tribes and the federal government "from the same era" at issue in this case, see McGirt, 140 S. Ct. at 2461 (examining the Menominee's treaty to interpret the Creek's), those treaties also differ from the Treaty of 1855 in important respects. See, e.g., Treaty with the Chippewa (1855), 10 Stat. 1165 ("There shall be, and hereby is, reserved and set apart, a sufficient quantity of land for the permanent homes of the said Indians; the lands so reserved and set apart, to be in separate tracts, as follows....");
Alongside the Treaty's text, the Treaty negotiations illustrate that the Band and the federal government wished to provide tribal members with individual titles to land (indicative of allotment) rather than communal title (indicative of reservation). Before negotiating the Treaty of 1855, Commissioner Manypenny set aside plots of land that would "substitute, as far as practicable, for their claim to lands in common, titles in fee to individuals for separate tracts of land." (ECF No. 559-43 at PageID # 8376.) During Treaty negotiations, one tribal leader expressed anxiety that, as with the Treaty of 1836, tribal members would not be given true title to the land because "you will take them back." (ECF No. 558-9 at PageID # 7069.) Manypenny responded that "the land will [not] be pulled from you," and the initial restriction of alienation would provide "good, strong papers, so that your children may inherit your lands." (Id. at PageID # 7069.) To ease the Band's concerns, he also expressed that "[i]t will be our desire to give each individual and head of a family such a title as that he can distinguish what is his [own.]" (Id. at PageID # 7061.) Manypenny believed that restricting resale for five years would encourage permanent settlement on the tracts of land. Thereafter, individual tribal members would be free to use their land as they pleased.
The parties' practical construction of the Treaty of 1855 after its signing further supports our conclusion. For example, shortly after signing the Treaty, the Ottawa Indians of Michigan wrote to the Office of Indian Affairs to request additional educational assistance. In the letter, Andrew J. Blackbird, a tribe leader and historian, observed that the tribe had "abandoned" its "laws, customs and manners" and "renounced their chiefdoms." (ECF. No. 559-48 at PageID # 8424.) He noted that the tribe was now "under the laws of the State of Michigan and the United States," having "equal rights and privileges with American citizens ... to have and to hold, to buy and to sell, to prosecute and be prosecuted ... So we are to be no more as children of men, for we have been such already too long." (Id.)
To be sure, the Band points our attention to several other letters from certain tribal members which speak of "our reservations,"
Moreover, although the federal government tracked Indian reservations generally, it did not identify the Article 1 lands listed in the Treaty of 1855 as a reservation.
When reviewed in full, "the history of the treaty, [its precedent] negotiations, and the practical construction adopted by the parties" demonstrate that the Treaty did not provide land for Indian reservation purposes; but rather, it was intended to allot plots of land so members of the Band could establish permanent homes. Mille Lacs, 526 U.S. at 196, 119 S.Ct. 1187.
ii. Land under federal superintendence
Federal superintendence is also required to establish an Indian reservation under federal law. See Citizen Band, 498 U.S. at 511, 111 S.Ct. 905. Federal superintendence arises where "the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question." Venetie, 522 U.S. at 531, 118 S.Ct. 948. In that regard, "it is the land in question, and not merely the Indian tribe inhabiting it, that must be under the superintendence of the Federal Government." Id. at 530, 118 S.Ct. 948 n.5 (citations
The Band omits this element in its brief; the omission constitutes a legal error. Repeatedly, the Supreme Court has included federal superintendence as a requirement for establishing Indian Country generally. See United States v. McGowan, 302 U.S. 535, 537, 58 S.Ct. 286, 82 L.Ed. 410 (1938) (declaring the disputed land Indian Country in part because the federal government held ownership of the land to protect dependent Indians living there); Pelican, 232 U.S. at 447, 34 S.Ct. 396 (holding that the disputed land was Indian Country where it was "under the jurisdiction and control of Congress for all governmental purposes, relating to the guardianship and protection of the Indians"). We follow the Court's lead.
Under the terms of the Treaty of 1855, the federal government might have exercised some federal superintendence over the land at issue, but not for purposes of maintaining an Indian reservation. Particularly relevant to this discussion is the Supreme Court's decision in United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914). There, the Court found federal superintendence where the Colville tribe's land in Washington State was subjected to restraints on alienation and provisions of trusteeship for a 25-year period. Id. at 449, 34 S.Ct. 396. Accordingly, the land "still retain[ed] during the trust period a distinctively Indian character, being devoted to Indian occupancy under the limitations imposed by Federal legislation." Id. But the Court in Pelican made clear that the Colville tribe did not retain a reservation; their previously established reservation was "diminished," and the federal superintendence discussed was related to the newly established system of allotment. That applies here as well—at least for a portion of the lands at issue. The Band's reservation established in the Treaty of 1836 was diminished under that Treaty's own terms. See 1836 Treaty, Art. 2, 7 Stat. 491. The Band's new arrangement in the Treaty of 1855—pertaining to the lands selected in the first five-year period—were, like those in Pelican, subject to several years of inalienability and trusteeship.
The Treaty's provision for selection of land during the second five-year period and thereafter also supports our conclusion that it did not establish federal superintendence indicative of reservation status. As mentioned previously, the land selected and purchased during those phases were dispersed without any restraints on alienation or other restrictions. 1855 Treaty, Art. 1, 11 Stat. 621. Plainly, no evidence of
Of course, other provisions in the Treaty of 1855 indicate that the federal government did provide continual support for the Band, such as Article 2, which details the disbursement of funds to the Band for education, annuities, and agricultural assistance. Id. at Art. 2, 11 Stat. 621. But even when accounting for those disbursements, "health, education, and welfare benefits are merely forms of general federal aid[,] ... they are not indicia of active federal control over the Tribe's land sufficient to support a finding of federal superintendence." Venetie, 522 U.S. at 534, 118 S.Ct. 948.
Further, during the negotiations, the leaders of the Band made clear that they did not want land under federal superintendence or federal control. Indeed, tribal members made repeated requests during treaty negotiations to have title to land that would be equal to that of their white counterparts. For instance, one tribal leader requested for the Band "to choose like the whites and have their titles." (ECF No. 558-9 at PageID # 7069.) Another leader stated, "we think that we are old enough to take care of our papers[;] ... [w]e think that we can take as good care of your papers as we do of [our ancestors' papers.]" (Id. at PageID # 7064.) And like their white counterparts, the Band wanted to become citizens and pay taxes. After hearing the federal government would provide them with titles to land, one leader stated, "[w]e are willing to pay our way up on this land — to pay our taxes as you do. You have opened your heart to give us land; we do not think you ought to feed us and our children forever." (Id. at PageID # 7065.)
The government also made clear its desire for Band members to be independent from governmental support. The year before negotiations began, Henry Gilbert wrote to George Manypenny stating, "that within three or four years all connection with and dependence upon Government on the part of the Indians may properly cease." (ECF No. 559-33 at PageID # 8285-8286.) In reference to money owed to the Band during the negotiations, Gilbert expressed, "we think that the time will shortly come, when you can take care of [the fund] for yourself[,] ... [s]o that I think we must fix a time, when your connection with the U.S. shall cease." (ECF No. 558-8 at PageID # 7030-7031.) Manypenny held a belief similar to Gilbert's. Eventually, Manypenny wanted the tribes to "take care of themselves," and he knew that a permanent home would assist them in achieving full independence. (Id. at PageID # 7030-7031.)
The parties' practical construction of the Treaty, discussed previously, further supports the notion that the federal government did not intend, nor did it seek, to guard over any of the land the tribal members owned as it would a reservation. Rather, the United States and the Band negotiated a treaty that the parties believed would finally lead to the Band's independence. The Band's ancestors understood that the treaty would provide individual allotments of land to its members. See Mille Lacs, 526 U.S. at 197, 119 S.Ct. 1187. And it appears the Band's ancestors not only agreed to this arrangement, but also desired it, to ensure they would never lose their homes in Michigan. As a result, we find that the Treaty of 1855 did not create a system of federal superintendence sufficient to establish an Indian reservation for the Band.
The case before us has raised important questions of federal Indian law. We are tasked with deciding whether a treaty formed well over a century ago created a reservation, even as the word reservation holds different significance today. Upon review of its language, its precedent negotiations, and its practical construction adopted by the parties, we conclude that the Treaty of 1855 did not create a federal Indian reservation; but rather, created a form of land allotment—akin to a public domain allotment—for individuals within the Band to obtain permanent homes. From the record, it is apparent that the Band faced a series of difficult choices, which included whether to leave their home in Michigan or bargain with the United States to stay in Michigan permanently. It is not lost on this court that those decisions were not made in haste or without forethought. In light of those decisions, we reviewed the agreements the Band signed in 1836 and 1855 and sought to determine how the Band would have understood them. The Band chose to provide allotments of land for their members, not a reservation for the tribe. For these reasons, we affirm the district court.