Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3613 Page 1 of 27

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1 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3613 Page 1 of 27 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS, a federally recognized Indian tribe, Plaintiff, v RICK SNYDER, Governor of the State of Michigan, et al Defendants. No. 1:15-cv-850 HON. PAUL L. MALONEY EMMET COUNTY LAKE SHORE ASSOCIATION S AND PROTECTION OF RIGHTS ALLIANCE S RESPONSE TO TRIBE S MOTION FOR PARTIAL SUMMARY JUDGMENT CONCERNING CONGRESSIONAL REAFFIRMATION OF RIGHTS

2 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3614 Page 2 of 27 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION...1 COUNTERSTATEMENT OF FACTS...2 ARGUMENT...6 I. STANDARD OF REVIEW...6 II. THE TRIBE S MOTION SHOULD BE DENIED BECAUSE THE 1994 ACT DOES NOT FORECLOSE DEFENSES BASED ON THE 1870 S ACTS...7 A. The 1994 Act s Plain Language Does Not Support the Tribe s Position...8 B. Neither Congress s Plenary Power Nor the Indian Canons of Construction Help the Tribe s Argument...15 III. THE TRIBE S MOTION IS PREMATURE AND SHOULD BE DISMISSED...19 CONCLUSION...22 i

3 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3615 Page 3 of 27 TABLE OF AUTHORITIES CASES Amini v. Oberlin College, 440 F.3d 350 (6th Cir. 2006)... 7 Amoco Pipeline Co. v. Herman Drainage Sys., 212 F. Supp. 2d 710 (W.D. Mich. 2002)... 10, 11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)... 6, 7 Aslani v. Sparrow Health Sys., No. 1:08-cv-298, 2009 U.S. Dist. LEXIS (W.D. Mich. Mar. 12, 2009) Bushway v. BOP, 198 F.3d 244, 1991 WL (6th Cir. 1999) Celotex Corp. v. Catrett, 477 U.S. 317 (1986)... 7 Chickasaw Nation v. United States, 534 U.S. 84 (2001) Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977) In re Dollar Corp., 25 F.3d 1320 (6th Cir. 1994)... 6 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)... 6 Mich. Dep t of State v. United States, 166 F. Supp. 2d 1228 (W.D. Mich. 2001)... 9 Mich. State Bldg. & Constr. Trades Council, 241 Mich. App. 406 (2000) Minadeo v. ICI Paints, 398 F.3d 751 (6th Cir. 2005)... 7 Pann v. Corizon Health Servs., No. 1:14-cv-1074, 2017 U.S. Dist. LEXIS (W.D. Mich. Jan. 13, 2017)... 7 People v. Borchard-Ruhland, 460 Mich. 278 (1999) Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190 (6th Cir. 1995)... 7 Service, Hosp. & Nursing Home Pub. Employees Union, Local No. 47 v. Commercial Prop. Servs., Inc., 755 F.2d 4997 (6th Cir. 1985) Shield v. United States, 698 F.2d 987 (1983), cert. denied, 464 U.S. 816 (1983) Smith v. Freland, 954 F.2d 343 (6th Cir. 1992) Solem v. Bartlett, 465 U.S. 463 (1984) South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) Tarleton v. Meharry Med. Coll, 717 F.2d 1523 (6th Cir. 1983) United States v. Alcea Band of Tillamooks, 329 U.S. 40 (1946) STATUTES An Act Extending the Time within which Homestead entries upon certain lands in Michigan may be made, 19 Stat. 55 (May 23, 1876)... 4 An Act for the Restoration to Market of certain Lands in Michigan, 17 Stat. 381 (June 10, 1872)... passim ii

4 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3616 Page 4 of 27 An Act to Amend the Act entitled An Act for the Restoration to Market of certain Lands in Michigan, approved June 10, eighteen hundred and seventy-two, and for other purposes, 18 Stat. 516 (Mar. 3, 1875)... passim Coquille Restoration Act, Pub. L. No , 103 Stat. 91 (1989) Cow Creek Band of Umpqua Tribe of Indians Recognition Act, Pub. L. No , 96 Stat (1982) Indian Civil Rights Act, 25 U.S.C to Indian Gaming Regulatory Act, Pub. L. No , 25 U.S.C Little Traverse Bay Bands of Odawa Indians and the Little River Band of Ottawa Indians Act, Pub. L. No , 108 Stat. 2156, 2158 (1994)... passim Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No , 101 Stat. 666 (1987)... 12, 14, 15 RULES Fed. R. Civ. P Fed. R. Civ. P. 56(a)... 6 Fed. R. Civ. P. 56(b)... 7 Fed. R. Civ. P. 56(c)... 6 Fed. R. Civ. P. 56(d)... 7 TREATIES Treaty with Ottowas & Chippewas, Jul. 31, 1855, 11 Stat. 621 (1855)... passim Treaty with the Ottawas, etc., Mar. 28, 1836, 7 Stat. 491 (1836)... 2, 3, 18 OTHER AUTHORITIES STEPHEN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES, 276 (2012) S. Rep. No , 4-5 (1994)... 11, Cong. Rec. 19, 236 (1994) iii

5 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3617 Page 5 of 27 INTRODUCTION With its current Motion, the Little Traverse Bay Bands of Odawa Indians (the Tribe ) asks this Court to take one boilerplate subsection from the Little Traverse Bay Bands of Odawa Indians and the Little River Band of Ottawa Indians Act, Pub. L. No , 108 Stat. 2156, 2158 (1994) (the 1994 Act ), and erase over 100 years of history. Under its interpretation of Section 5(a) of the 1994 Act, any act prior to 1994 that is not to the benefit of the Tribe is irrelevant both in determining the Tribe s rights generally and for any diminishment defense in this case specifically. Here, the Tribe s interpretation would require this Court to contort the 1994 Act to find that Congress intended to eliminate any potential diminishment defense with respect to a then-unknown claim that the Tribe had a large, extant reservation. In fact, by logical extension, the Tribe s interpretation of Section 5(a) would limit the applicability of any congressional act dating before 1994 back to the Tribe s aboriginal title. Unfortunately for the Tribe, however, when one reads the 1994 Act in its entirety (and reviews the legislative history provided by the Tribe and in the current record), it is clear that Congress had no such intent and that the Tribe s interpretation strains credibility. To begin, the very clear intent of the 1994 Act as a whole was to reaffirm the Tribe s status as a federally recognized tribe and ensure it received the rights associated with that status. The Tribe has a termination history that was based on administrative decisions rather than a termination statute, and the 1994 Act was Congress s way of clarifying that the Tribe was indeed a federally recognized tribe. Nowhere in the 1994 Act is there any suggestion that Congress in 1994 understood the Tribe to have a 337 square-mile reservation that Congress was reaffirming. Even the legislative history presented by the Tribe itself lacks any evidence that Congress had such an understanding in In short, the plain language of the 1994 Act, taken 1

6 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3618 Page 6 of 27 as a whole, clearly evinces a reaffirmation of the Tribe s status but certainly does not evince an intent to erase any act that abrogated or diminished any right or privilege of the Tribe ever, by anyone, which is essentially what the Tribe is arguing. Section 5(a) of the 1994 Act must be read in the context of the entire act, and when done so, it is apparent that the Tribe s interpretation is an overreach. Moreover, even if this Court disagrees and finds that the language of the 1994 Act is ambiguous, discovery in this case is not yet complete and a motion for summary judgment is premature. In fact, depositions of the Tribe s lay witnesses, which will encompass the legislative history of the 1994 Act and the Tribe s involvement in its development, including tribal witnesses quoted and relied upon in the Tribe s brief, have not yet begun. Defendants are entitled to discovery with respect to the Tribe s involvement and lobbying and the materials provided to Congress in 1994 in support of the 1994 Act, as well as the Tribe s understanding of its reservation in If the Court believes that the language of the 1994 Act does not clearly support the Intervening Defendants Emmet County Lake Shore Association and Protection of Rights Alliance s ( ECLA/PORA ) position, then it would be premature to grant summary judgment before ECLA/PORA and the other defendants have an opportunity to conduct this discovery. For these reasons, ECLA/PORA respectfully request that this Court deny the Tribe s motion for summary judgment. COUNTERSTATEMENT OF FACTS The Tribe s presentation of the facts in its motion is incomplete and requires supplementation. The Tribe and the United States government have a long history that for purposes of this case begins with the Treaty with the Ottawas, etc., Mar. 28, 1836, 7 Stat. 491 (1836) (the 1836 Treaty ). Under the 1836 Treaty, Ottawa and Chippewa bands cede[d] to the 2

7 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3619 Page 7 of 27 United States all the tract of country within certain boundaries, containing vast tracts of property. Id., Art. I. The 1836 Treaty did leave reservations for the bands. With respect to the Tribe s predecessors, the 1836 Treaty stated as follows: From the cession aforesaid the tribes reserve for their own use, to be held in common the following tracts, namely: One tract of fifty thousand acres to be located on Little Traverse Bay[.] Id., Art. II. In exchange for the cessions, the United States agreed to the payment of certain sums and other consideration. Id., Art. IV. According to the Tribe s telling of history, when the Senate ratified the 1836 Treaty, the Senate unilaterally modified its terms. (ECF No. 312, PageID.3247). Indeed, the Senate did amend the negotiated 1836 Treaty to provide a temporal limitation on reservations. 7 Stat. 497 (noting that the Senate inserted after the identification of tracts to be reserved the language, for the term of five years from the date of the ratification of this treaty, and no longer, unless the United States grant them permission to remain on said lands for a longer period ). This amendment was subsequently ratified by the Indian parties. The next relevant treaty came to fruition in 1855, the Treaty with Ottowas & Chippewas, Jul. 31, 1855, 11 Stat. 621 (1855) (the 1855 Treaty ). Under the 1855 Treaty, the United States agreed to temporarily withdraw from sale all the unsold public lands within the State of Michigan embraced in the following descriptions[.] Id., Art. I. The treaty stated that the United States would give each Ottowa and Chippewa Indian head of the family, single persons over 21, and each family of an orphan child or single orphan child, certain acres of land in the described lands subject to certain rules and regulation. Id. The 1855 Treaty also stated that: All the land embraced within the tracts hereinbefore described, that shall not have been appropriated or selected within five years, shall remain the property of the United States, and the same shall thereafter, for the further term of five years, be subject to entry in the usual manner, and at the same rate per acre as other adjacent 3

8 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3620 Page 8 of 27 Id. public lands are then held, by Indians only; and all lands, so purchased by Indians, shall be sold without restriction, and certificates and patents shall be issued for the same in the usual form as in ordinary cases; and all lands remaining unappropriated by or unsold to the Indians after the expiration of the lastmentioned term, may be sold or disposed of by the United States as in the case of all other public lands. Thus, the 1855 Treaty, by its terms, provided for certain unsold lands, within the area previously ceded by the Indians, to be temporarily withdrawn from the public domain to allow for parcels to be selected by individual Indians, and, at the conclusion of that process, for the unselected lands to be restored to the public domain and sold. These treaty provisions were effectuated, with slight modifications irrelevant to the fundamental questions in this case, by three additional congressional actions: An Act for the Restoration to Market of certain Lands in Michigan, 17 Stat. 381 (June 10, 1872) (the 1872 Act ), An Act to Amend the Act entitled An Act for the Restoration to Market of certain Lands in Michigan, approved June 10, eighteen hundred and seventy-two, and for other purposes, 18 Stat. 516 (Mar. 3, 1875) (the 1875 Act ), and An Act Extending the Time within which Homestead entries upon certain lands in Michigan may be made, 19 Stat. 55 (May 23, 1876) (the 1876 Act, collectively, the 1870s Acts ). In the 1872 Act, Congress provided that any remaining undisposed of lands in the lands withdrawn from market by the 1855 Treaty shall be restored to market by proper notice[.] 17 Stat The 1875 Act amended the 1872 Act to authorize the Secretary of the Interior to causes patents to be issued to 320 members of the Ottawa and Chippewa Indians of Michigan and the disposal of residual lands. 18 Stat Finally, the 1876 Act extended the time under which homestead entries could be made under the 1872 Act. 19 Stat. 55. Both contemporaneously and subsequent to the 1870s Acts, federal actors interpreted and applied Article 5 of the 1855 Treaty. This Article provided that: [t]he tribal organization of said 4

9 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3621 Page 9 of 27 Ottowa and Chippewa Indians, except so far as may be necessary for the purpose of carrying into effect the provisions of this agreement, is hereby dissolved[.] 11 Stat This section led to what the Tribe and its predecessors contend was administrative confusion whereby federal officials began to treat the Tribe as though the 1855 Treaty terminated the Tribe s recognized status as a tribe. After decades of being treated by the Bureau of Indian Affairs ( BIA ) as terminated, the Tribe lobbied Congress for reaffirmation of its status, working with lobbyists and attorneys to craft language, and with a professional historian, Dr. James McClurken (an expert in this case), to draft historical reports that became a significant part of the legislative history that undergirds what became the 1994 Act. Congress then passed the 1994 Act, the stated purpose of which was to reaffirm and clarify the Federal relationships of the [Tribe] and the Little River Band of Ottawa Indians as distinct federally recognized Indian tribes. Pub. L. No , 108 Stat. 2156, 2158 (1994). That legislative history, and the 1994 Act itself, is devoid of any notion that the Tribe claimed an extant reservation of 337 square miles in Northern Michigan. In 2015, twenty-one years after passage of the 1994 Act, the Tribe filed its complaint in this case, asserting that the 1855 Treaty had established a permanent reservation encompassing all lands embraced within the area where certain parcels were temporarily withdrawn from sale. ECLA/PORA contend that the 1855 Treaty did not create a reservation at all (but rather only a temporary withdrawal of land from market), and that the 1870s Acts both evidence the nature of and effectuate the transaction agreed upon in the 1855 Treaty. As an alternative affirmative defense, ECLA/PORA contend that even if this Court were to find that the 1855 Treaty created a reservation, the 1870s Acts disestablished any such reservation, or, at a minimum, diminished the alleged reservation to encompass only certain lands selected by Indians. The Tribe s present 5

10 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3622 Page 10 of 27 motion attempts to use selective language from the 1994 Act to argue that any federal actions that could be viewed as unfavorable to the Tribe prior to 1994 were effectively eliminated by the 1994 Act including any interpretation of the 1870s Acts that supports diminishment of a reservation. 1 As explained herein, that interpretation of the 1994 Act is simply untenable. ARGUMENT I. STANDARD OF REVIEW Summary judgment is appropriate under Fed. R. Civ. P. 56 when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The operative question for the court to resolve is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986)). Ordinarily, then, the movant is to point to the record to establish that a material fact cannot be supported or genuinely disputed, and the nonmoving party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Fed. R. Civ. P. 56(c); In re Dollar Corp., 25 F.3d at 1322 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 257). In deciding a motion for summary judgment, the district court must view the evidence in the light most favorable to the non-moving party. See, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Moreover, under Rule 56, [u]nless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the 1 Obviously, the effects of the 1870s Acts have not yet been addressed by the Court, and the Tribe in this motion seeks to make the 1870s Acts irrelevant. Even if the Tribe wins this motion, however, the 1870s Acts will still remain highly relevant to the core issue in this case did the 1855 Treaty create a reservation? The 1870s Acts support the conclusion that it did not. 6

11 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3623 Page 11 of 27 close of all discovery. Fed. R. Civ. P. 56(b). However, [b]efore ruling on summary judgment motions, a district judge must afford the parties adequate time for discovery, in light of the circumstances of the case. Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1195 (6th Cir. 1995)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5, 257 (1986) (stressing importance of allowing ample time for discovery); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 326 (1986) (same)). Under Rule 56(d), [i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Fed. R. Civ. P. 56(d). A party moving for summary judgment can satisfy its burden by demonstrating that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case. Pann v. Corizon Health Servs., No. 1:14-cv-1074, 2017 U.S. Dist. LEXIS 45430, at *2 (W.D. Mich. Jan. 13, 2017) (quoting Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005)). Once the moving party demonstrates that there is an absence of evidence to support the nonmoving party s case, the non-moving party must identify specific facts that can be established by admissible evidence, which demonstrate a genuine issue for trial. Id. (quoting Amini v. Oberlin College, 440 F.3d 350, 357 (6th Cir. 2006)). II. THE TRIBE S MOTION SHOULD BE DENIED BECAUSE THE 1994 ACT DOES NOT FORECLOSE DEFENSES BASED ON THE 1870 S ACTS. The Tribe s entire motion stems from what is a faulty interpretation of Section 5(a) of the 1994 Act, which the Tribe interprets in isolation. The Tribe contends that the 1994 Act eliminates any act or thing that abrogates or diminishes (or even may abrogate or diminish) any right or privilege of the Tribe from any time prior to This interpretation is untenable, and derives from reliance on one subsection of the Act, without context. Reading the 1994 Act as 7

12 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3624 Page 12 of 27 whole (and applying common sense) makes clear that the Tribe s position is a bridge too far. In addition, the Tribe s reliance on Congress s plenary power and the Indian canons of construction to create statutory ambiguity here is misplaced. Neither doctrine cures the Tribe s erroneous interpretation of the 1994 Act. Finally, the Tribe attempts to use its misinterpretation to dismiss the appropriate standard by which diminishment cases are generally decided and to dismiss post acts that are most certainly relevant in this case. These positions lack merit. A. The 1994 Act s Plain Language Does Not Support the Tribe s Position. The Tribe argues that there can be no genuine dispute that the 1994 Act precludes diminishment defenses here. (ECF No. 312, PageID.3253). The Tribe argues that Congress reaffirmed all rights and privileges of the Tribe prior to 1994 and that Congress spoke more broadly to ensure that it reached every potential abrogation or diminishment that may have occurred before [1994]. (ECF No. 312, PageID.3257). In short, according to the Tribe, Congress eliminated any potential abrogation or diminishment ever created or enacted (prior to 1994) to the Tribe s rights and privileges. This conclusion overreaches. Even a cursory review of the 1994 Act shows that the Tribe s interpretation is inconsistent with the plain language of the act and common sense. The Tribe s argument hinges entirely on the following statement in the 1994 Act: All rights and privileges of the Bands, and their members thereof, which may have been abrogated or diminished before the date of the enactment of this Act are hereby reaffirmed. Pub. L. No , 5(a), 108 Stat Just reviewing this passage in isolation, however, is misleading and itself raises its own questions such as: what are rights and privileges within this context? Is just one part of the transaction effectuated by the 1855 Treaty and the 1870 s Acts a right or privilege under the 1994 Act? Rights and privileges from when? 1855? 1836? Before 1836? Rights and privileges 8

13 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3625 Page 13 of 27 abrogated or diminished by whom? Congress? The United States? Anyone? And what does reaffirmed mean in the context of the entire act? As this Court knows, courts do not pick particular clauses cleanly out of statutes and interpret them in isolation. To determine the meaning of a statute, the Court reviews the particular statutory language at issue, as well as the language and design of the statute as a whole. Walker v. Bain, 257 F.3d 660, (6th Cir. 2001) (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct (1988)). While the literal language of the statute is important, it may not lead to absurd results or an interpretation which is inconsistent with the intent of Congress. Walker, 257 F.3d at 667. Mich. Dep t of State v. United States, 166 F. Supp. 2d 1228, (W.D. Mich. 2001). The critical question here is: what did Congress intend in 1994? Did it intend, as the Tribe suggests, that any right or privilege ever abrogated or diminished (or even potentially abrogated or diminished) before 1994 was reaffirmed and restored? Did Congress intend in 1994 to reaffirm a 337 square mile reservation (or perhaps even more) and eliminate any defense to such a then unknown claim (at least to Congress)? The 1994 Act itself, the currently available legislative history, and common sense provide that the answer to these questions is no. Reviewing the 1994 Act as a whole paints a very different picture from that illustrated by the Tribe. At the outset, there are multiple references throughout the 1994 Act that indicate that it was Congress s intent to reaffirm the Tribe s status as a federally recognized tribe with which the federal government has a government-to-government relationship and the associated rights as opposed to reaffirming any and all rights from time immemorial. The clear intent was to reaffirm the Tribe s status and the rights that emanate therefrom (specifically federal benefits and services as well as the right to acquire lands under the Indian Reorganization Act). 9

14 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3626 Page 14 of 27 To reaffirm and clarify the Federal relationships of the [Tribe] and the Little River Band of Ottawa Indians as distinct federally recognized tribes, and for other purposes. [Preamble] Section 4. Federal Recognition (a) Federal recognition of the [Tribe] and the Little River Band of Ottawa Indians is hereby reaffirmed. (b)(1) The Bands and their members shall be eligible for all services and benefits provided by the Federal Government to Indians because of their status as federally recognized Indians, and notwithstanding any other provision of law, such services and benefits shall be provided after September 21, 1994, to the Bands and their members without regard to the existence of a reservation or the location of the residence of any member on or near any Indian reservation. (b)(2)(a) For purposes of the delivery of Federal services to the enrolled members of the [Tribe], the area of the State of Michigan within 70 miles of the boundaries of the reservations for the [Tribe] as set out in Article I, paragraphs third and fourth of the Treaty of 1855, 11 Stat. 621, shall be deemed to be within or near a reservation, notwithstanding the establishment of a reservation for the tribe after the date of the enactment of this Act. Pub. L. No , 108 Stat. 2156, 2157 (emphasis added). 2 Looking at the 1994 Act as a whole, there is no suggestion that Congress intended to reaffirm rights as broadly as suggested by the Tribe. 3 First, there is no evidence that Congress intended to reaffirm any and all rights prior to 1994, as the Tribe argues. For example, rights to federal services per Section 4(b)(1) would be provided after the enactment of the Act that is, 2 In Section 6 of the 1994 Act, Congress included specific language concerning the acquisition of land for the Tribe and the ability for the Tribe to utilize the IRA. Pub. L. No , 6, 108 Stat Unless explicitly defined in a statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. Amoco Pipeline Co. v. Herman Drainage Sys., 212 F. Supp. 2d 710, 718 (W.D. Mich. 2002) (quoting Mich. State Bldg. & Constr. Trades Council, 241 Mich. App. 406, 411 (2000)). 10

15 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3627 Page 15 of 27 prospectively. Second, as it currently stands, the Tribe is arguing that its original reservation encompassed roughly 337 square miles and yet the 1994 Act contains no definition of the Tribe s existing reservation. Indeed, in Section 4(b)(2) Congress appears to suggest that a reservation would be established after the 1994 Act was passed. All words and phrases of the statute must be given effect; a construction which negates any part of the statute or renders it surplusage should be avoided. Amoco Pipeline Co v Herman Drainage Sys, 212 F. Supp. 2d 710, (W.D. Mich, 2002) (quoting People v. Borchard-Ruhland, 460 Mich. 278, 285 (1999)). The Tribe urges this Court to give every word its ordinary meaning in support of its motion, but it completely ignores the context in which those words are used. Looking at the 1994 Act as a whole simply does not support the Tribe s reading, and most definitely does not rise to the level of certainty that would justify summary judgment at this point in the litigation. Even the legislative history the Tribe offers in support of its reading, much of which the Tribe created during Congress s consideration of the 1994 Act, emphasizes Congress s intent to reaffirm the Tribe s status and does not address the Tribe s alleged reservation. For example, the Senate Report cited by the Tribe repeatedly suggests that Congress s intent was to reaffirm the Tribe s status as a federally recognized tribe, ensure the associated benefits would be provided, and ensure that some land would be taken into trust for the Tribe. As the Tribe noted (ECF No. 312, PageID 3250), the Committee on Indian Affairs concluded in its Senate report, that [t]hese tribes claim of rights and status as treaty-based tribes, and the need to restore and clarify that status, has been clearly demonstrated. S. Rep. No , 4-5 (1994) (emphasis added). Even the other so-called support the Tribe provides suggests that the intention of Congress in 1994 was to reaffirm the Tribe s status as federally recognized and did not contemplate reaffirming any large reservation or rights from time immemorial. 11

16 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3628 Page 16 of 27 Representative Kildee s statement cited by the Tribe similarly focuses on the status of the Tribe and the federal government s obligations, noting that [t]he time to acknowledge our obligations to these tribes is long overdue. 140 Cong. Rec. 19, 236 (1994) (emphasis added). Likewise, the statements from Frank Ettawageshik and Shirley Oldman cited in the Tribe s brief focus on the government s relationship with the Tribe and do not mention the restoration of the Tribe s alleged reservation. (ECF No. 312, PageID 3264) ( [W]e re not here asking for services or asking for money[,] we re asking for the relationship that our ancestors negotiated very carefully when negotiated the treaties. ) (emphasis added); ( The reaffirmation of our government-to-government relationship with the United States will help us reestablish our land base and help us perpetuate our way of life. ) (emphasis added). Plainly, the intent of Section 5(a) and of the 1994 Act as a whole was to overcome the administrative termination of the Tribe, not to rewrite the jurisdiction over 337 square miles of Northern Michigan. Moreover, the language in Section 5 ( all rights and privileges are hereby reaffirmed ) is largely boilerplate. See Cow Creek Band of Umpqua Tribe of Indians Recognition Act, Pub. L. No , 96 Stat (1982) ( All rights and privileges of the tribe are restored. ); Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No , 101 Stat. 666, 667 (1987) ( All rights and privileges of the tribe are hereby restored. ); Coquille Restoration Act, Pub. L. No , 103 Stat. 91 (1989) ( Except as provided in subsection (d) of this section, all rights and privileges of this Tribe are hereby restored. ). The Tribe attempts to distinguish the 1994 Act from other reaffirmation acts to support the Tribe s overly broad interpretation. The Tribe cites to these same three reaffirmation statutes that reaffirmed all rights and privileges but suggests that because those related back to a particular terminating statute, that distinction supports the Tribe s broad reading of the 1994 Act. 12

17 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3629 Page 17 of 27 (ECF No. 312, PageID.3257). The operative phrase there, however, is terminating statute. Those three examples illustrate how Congress was intending to act here. As described above, and in the statements quoted by the Tribe s own brief, the intent of the 1994 Act itself was to reaffirm the Tribe s status and the government-to-government relationship just as Congress had done for other tribes. The Tribe here, however, did not have a termination statute to point back to like those other three tribes, but Congress s intent appears to be identical: reaffirm the status of the tribes, 4 after termination or alleged termination in the Tribe s case, and help reestablish the rights associated with that status. The fact that no particular statute is identified does not mean that Congress had some far greater objective with respect to this Tribe, including re-establishing (or creating) an alleged 337 square mile reservation. In fact, the plain language of the 1994 Act and the record noted by the Tribe alone indicate otherwise. First, if the Tribe is correct, one would expect some record discussing the reaffirmation or establishment of a 337 square-mile reservation to have been provided by the Tribe, the Tribe s historian, the Michigan congressional representatives, or another source. 5 From the Senate Report cited by the Tribe, it is apparent that the Senate committee did not believe the Tribe to have a reservation. As the Committee on Indian Affairs noted, the BIA 4 Indeed, in the 1994 Act, to the extent that use of the word reaffirmed as opposed to restored was even a considered choice (rather than language proposed by the Tribe and its lobbyists), Congress reaffirmed the Tribe s status as opposed to restored the status likely because of the factual differences between the Tribe s history, in which they were not the subject of a termination act like the three tribes above, so Congress did not need to restore the Tribe s status, but simply reaffirm its existence. The general intent was similar but the facts were slightly different. As Congress noted in the title of the 1994 Act, its intent was to reaffirm and clarify that the Tribe was a federally recognized tribe that had not been terminated and was entitled to the rights and privileges afforded to federally recognized tribes. 5 Indeed, see ECF No. 80-4, PageID.1325; 80-3, PageID.1324; 80-2, PageID.1323, which are three different resolutions from the State of Michigan related to the Tribe s reaffirmation efforts. None of these resolutions mention the existence of a reservation. 13

18 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3630 Page 18 of 27 effectively treated the Tribe as terminated as a result of Article 5 of the 1855 Treaty. S. Rep. No , 4. Evidently the BIA found that the Tribe did not have a reservation. Id., at 3. The Committee for Indian Affairs notes that the misguided administrative decision not to provide services or to extend the benefits of the [IRA] to Indian tribal governments in Michigan s lower peninsula, in great part because of the lack of financial resources of the federal government and because tribes in Michigan s lower peninsula did not possess tribal land bases, resulted in administrative termination of the Bands. Id., at 4 (emphasis added). In short, the Tribe has not produced any evidence that the Tribe or Congress understood that the Tribe had a 337 squaremile reservation in 1994 that was being reaffirmed or that Section 5(a) would impact an unknown claim to one. Moreover, if Congress had intended to reaffirm the reservation status of particular lands, or if the Tribe s lobbyists and lawyers had wished Congress to do so, both knew what language could accomplish this end. See, e.g., Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. No , 101 Stat. 666, 667 (1987). In the Coushatta Restoration Act, Congress declared a reservation to be a federal Indian reservation for use of the tribe. The restoration act defined the reservation as: [The] lands within El Paso and Hudspeth Counties, Texas (A) held by the tribe on the date of the enactment of this title; (B) held in trust by the State or by the Texas Indian Commission for the benefit of the tribe on such date; (C) held in trust for the benefit of the tribe by the Secretary under section 105(g)(2); and (D) subsequently acquired and held in trust by the Secretary for the benefit of the tribe. Pub. L. No , 101(3), 101 Stat

19 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3631 Page 19 of 27 Congress used similar language in the Alabama and Coushatta Indian Tribes of Texas, defining reservation as follows: [T]he term reservation means the Alabama and Coushatta Indian Reservation in Polk County, Texas, comprised of (A) the lands and other natural resources conveyed to the State of Texas by the Secretary pursuant to the provisions of section 721 of this title; (B) the lands and other natural resources purchased for and deeded to the Alabama Indians in accordance with an act of the legislature of the State of Texas approved February 3,1854; and (C) lands subsequently acquired and held in trust by the Secretary for the benefit of the tribe; Pub. L. No , 201(3), 101 Stat Congress could have done something similar to accomplish what the Tribe contends it did, and yet it did nearly the opposite. The 1994 Act did not define the Tribe s reservation, but it did recognize that there may an establishment of a reservation for the tribe after the date of the enactment of Act (Pub. L. No , 4(b)(2)(A), 108 Stat. 2158), and included language for mandatory acquisition of property (Id. at 6) in the very same counties in which the Tribe is now claiming to have a 337 square-mile reservation. It also extended services to members without regard to the existence of a reservation. (Id. at 4(b)(1).) Even with this language and reading the 1994 Act as a whole, the Tribe maintains that this Court should read the 1994 Act to preclude any defense of diminishment of an alleged reservation. Congress certainly could not have intended that result if it never understood a reservation existed. The Tribe s position is simply not warranted by the 1994 Act. B. Neither Congress s Plenary Power Nor the Indian Canons of Construction Help the Tribe s Argument. 15

20 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3632 Page 20 of 27 The Tribe leads its argument by noting that Congress has plenary power over Indian affairs and that the 1994 Act is an exercise of that authority. (ECF No. 312, PageID ). The Tribe s apparent reason for pointing out this principle is to say what Congress says goes. (Id., PageID 3256). Further, the Tribe suggests that Congress used its plenary power to reaffirm the Tribe s status but also spoke more broadly to ensure that it reached every potential abrogation or diminishment that may have occurred before [1994]. (ECF No. 312, PageID.3257). While it is generally true that Congress has plenary authority with respect to Indian affairs, Congress s authority is not without limit. 6 In fact, the United States Supreme Court has recognized that, [t]he power of Congress over Indian affairs may be of a plenary nature; but it is not absolute. Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977) (citing United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54 (1946) (plurality opinion)). In Delaware Tribal Business Committee, the Court noted that the plenary power doctrine does not authorize Congress to otherwise violate the Constitution. 430 U.S. at 84. The Tribe s argument that Congress wiped the slate clean of any diminishment questions (ECF No. 312, PageID.3258) and that Congress eliminated any claim by any person or entity that any alleged right or privilege of the Tribe has been or even may have been diminished in any way prior to 1994 surely overextends the concept of Congress s plenary authority. Taken as literally as the Tribe would like, the Tribe s interpretation of the 1994 Act would mean that Congress excused the Tribe from any law or provision of law that arguably diminished the Tribe s authority or jurisdiction. That cannot be the case. Indeed, if this Court accepted the Tribe s interpretation of Section 5(a), then the Indian Gaming Regulatory Act, Pub. 6 Not to mention, ECLA and PORA believe Congress clearly did not intend the outcome suggested by the Tribe based on reading the 1994 Act in its entirety as explained supra. 16

21 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3633 Page 21 of 27 L. No , 25 U.S.C et seq. ( IGRA ), or provisions thereof, would not apply to the Tribe. As commentator Stephen Pevar explains in The Rights of Indians and Tribes, Many people believe that IGRA confers on Indian tribes a right to conduct gaming that they did not already possess. That is incorrect. As the Supreme Court recognized in Cabazon Band, Indian tribes possess the inherent right to conduct gaming on their reservations. IGRA limits tribe s powers; it does not create them. STEPHEN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES, 276 (2012). IGRA, enacted into law in 1988 (i.e., before the enactment of the 1994 Act), places limits on tribal power to engage in gaming activities, such as requiring a tribal-state compact as a predicate to Class III casino gaming. 25 U.S.C In other words, IGRA abrogated or diminished the Tribe s right to regulate gaming on its lands prior to Under the Tribe s interpretation of Section 5(a), that abrogation or diminishment would be inapplicable to the Tribe. The same could be argued with respect to the Indian Civil Rights Act, 25 U.S.C to 1303 ( ICRA ). ICRA, enacted in 1968, imposed on tribes the obligation to uphold certain civil rights under the United States Constitution. Again, under the Tribe s interpretation of Section 5(a), that diminishment of the Tribe s right to self-govern is eliminated. And so on. Indeed, under the Tribe s theory of Section 5(a), the Tribe would have this Court rule that any Congressional act that ever arguably diminished the Tribe s rights of self-governance was magically reversed by the 1994 Act. This conclusion might seem extreme, but it is exactly the logical conclusion of the Tribe s argument. 7 7 The Tribe s argument is logically even more extreme. The Tribe makes repeated reference to rights afforded under the 1855 Treaty in its argument about what rights were reaffirmed and cannot be deemed diminished in light of Section 5(a), but the import of its textual argument does not necessarily begin and end in As the Tribe points out, there is no date mentioned in Section 5(a) of the 1994 Act. If Section 5(a) s reaffirmation of and all rights and privileges existing before 1994 is as untethered as the Tribe claims, then there is no reason that it 17

22 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3634 Page 22 of 27 Moreover, as explained above, the 1994 Act, when read as a whole, simply does not say what the Tribe claims. So, to the extent that what Congress says goes, ECLA/PORA agree the 1994 Act affirmed the Tribe s status as a federally recognized tribe and affirmed the rights associated with that status. With respect to a reservation, Congress expressly provided that the Secretary would acquire property for the Tribe that could be used to establish a reservation. There was no recognition of an existing reservation and certainly no recognition that Congress was eliminating future defendants from arguing that any past reservation, if it existed, had been diminished by an Act of Congress. Finally, as demonstrated above, ECLA/PORA believe that the 1994 Act is not ambiguous in that it clearly did not contemplate eliminating a diminishment defense to a reservation that was not understood to exist at the time. 8 here. Thus, the Indian canons of construction are inapplicable See Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) ( canons are not mandatory rules[;] they are guides that need not be conclusive. ); South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506 (1986) (The Indian canons of construction do[ ] not permit reliance on ambiguities that do not exist; nor do[they] permit disregard of the clearly expressed would not extend to actions before July 31, Indeed, the Tribe characterizes the Senate amendment to limit the 1836 Treaty reservations to five years as unilateral. It is surprising that the Tribe (at least today) is not arguing that the Senate s supposed unilateral change to the 1836 Treaty is undone by the 1994 Act, as that change diminished the Tribe s reservation created in the 1836 Treaty. Or, even further, that the 1836 Treaty itself diminished the Tribe s right to its aboriginal title and sovereignty and is thereby eliminated by virtue of the 1994 Act. The absurdity of such a result demonstrates the absurdity of the argument in the Tribe s motion. Perhaps the Tribe would distinguish the 1836 Treaty or 1855 Treaty amendment on the basis that the Tribe agreed to those terms but the 1870s Act were the very effectuation of the agreements contained in the 1855 Treaty, and thus are not distinguishable on that basis. 8 For this same reason, the Tribe s arguments that the 1994 Act renders the Solem [v. Bartlett, 465 U.S. 463 (1984)] test unnecessary[,] (ECF No. 312, PageID.3267), must fail. If this Court denies this motion (as ECLA/PORA believes it should), the Solem test will be the appropriate test to apply as the 1994 Act was not intended to eliminate any defense here related to any alleged reservation and potential disestablishment or diminishment. 18

23 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3635 Page 23 of 27 intent of Congress. ). In other words, [t]he [Indian] canons of construction cannot be used by the courts to accomplish what Congress did not intend. Shield v. United States, 698 F.2d 987, 990 (1983), cert. denied, 464 U.S. 816 (1983). For all of these reasons, this Court should deny the Tribe s motion for summary judgment. III. THE TRIBE S MOTION IS PREMATURE AND SHOULD BE DISMISSED. Even if this Court disagrees with ECLA/PORA and finds that a holistic reading of the 1994 Act does not clearly contradict the Tribe s reading, this Court should still deny the motion as premature. First, what Congress understood and intended in 1994 with respect to any alleged reservation allegedly created in 1855 is critical to understanding Congress s intent. Congress could not reaffirm something in 1994 that did not exist or that it did not intend to reaffirm. Second, to the extent that the Court believes that the 1994 Act s plain language is ambiguous, summary judgment is not appropriate here because further discovery into the legislative history of the 1994 Act is appropriate. Determining that the 1994 Act s reaffirmation of the rights and privileges of the Tribe did more than simply restore its status, but also revived or recognized the claimed 337 square mile reservation (and foreclosed any possible defense), would necessarily require a finding here that Congress intended in 1994 to do so. The Tribe attempts to avoid its interpretative flaws by arguing the 1994 Act reaffirms any and all rights the Tribe had prior to 1994 regardless of what the rights and privileges were; in other words that there is no ambiguity about the terms rights and privileges and that they extend to the Tribe s view of whatever it might have possessed as a result of the 1855 Treaty or otherwise. According to the Tribe, therefore, no defendant can argue diminishment because even if (1) the Tribe had a reservation at any time (not yet determined by this Court) and (2) Congress had diminished that reservation at any time 19

24 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3636 Page 24 of 27 (again, not determined yet by this Court), the 1994 Act essentially erases any diminishment of any right before (ECF No. 312, PageID.3246). What Congress intended (and understood it was reaffirming ) in the 1994 Act is certainly relevant here. Moreover, if Congress in 1855 did not create a reservation, then Congress in 1994 could not reaffirm a right that did not exist. The Tribe s argument that whether a reservation existed or not is irrelevant puts the cart before the horse here. What Congress intended in 1994 and what it understood the 1994 Act to be doing matters. And if this Court does not believe, as ECLA/PORA does, that the Tribe s interpretation of Section 5(a) fails to comport with the plain language of the 1994 Act, then summary judgment should be denied to allow discovery to continue with respect to issues related to Congress s intent. The Tribe s argument fails as a matter of law and fact, but also is simply premature at this point. 9 Under the current schedule, discovery in this case will not close until September 28, 2018 over five months away. Now that the Tribe s position on the 1994 Act is clear, Intervening Defendants ECLA and PORA determined that further discovery will be necessary on the 1994 Act if this Court does not believe the 1994 Act clearly rejects the Tribe s position. To this end, ECLA and PORA sent discovery requests on these issues concurrently with this response with respect to the Tribe s interactions with Congress and understanding of the The Tribe also seems to believe that if it prevails on this motion, any discovery and further briefing on the meaning of acts after 1855 would be meaningless, but that conclusion is erroneous. The 1870s Acts should be understood as effectuating what the 1855 Treaty provided would be a temporary withdrawal of land from the public domain for selection by individual Indians. Even if they are not viewed as disestablishing or diminishing a reservation, they are relevant to understanding the meaning of the 1855 Treaty itself. Thus, analysis of the 1870s Acts, the Congressional intent underlying them, and their effects, is still necessary and even if the Tribe is correct that the 1994 Act erases literally any abrogation or diminishment of the Tribe s rights or privileges, it must be determined if the 1870s Acts were a diminishment or abrogation of rights granted in the 1855 Treaty or were in actuality consistent with the Treaty s terms. 20

25 Case 1:15-cv PLM-PJG ECF No. 333 filed 04/25/18 PageID.3637 Page 25 of 27 Act. Depositions of tribal lay witnesses, some of whom were involved in the development of and lobbying for the 1994 Act, have not yet taken place. See Exhibit A, Declaration of Gary P. Gordon. Despite the Tribe s assertion that the 1994 Act clearly and unambiguously eliminates any diminishment defense, even a cursory review of the 1994 Act s plain language suggests otherwise. Whether the legislative history and the developed records evinces Congressional intent to take such drastic measures to eliminate over 100 years of history (under the Tribe s view) is most certainly relevant to this Court s review of the Tribe s motion and, while ECLA and PORA believe that Congress s intent evinces the opposite finding as that suggested by the Tribe, further discovery would be necessary if this Court believes that the language of the 1994 Act is ambiguous and resort to extrinsic evidence of intent relevant. Summary judgment should not ordinarily be granted before discovery is completed. Bushway v. BOP, 198 F.3d 244, 1991 WL , *3 (6th Cir. 1999) (p.c.) (Jones, Moore, Gilman) (citing Smith v. Freland, 954 F.2d 343, 348 (6th Cir. 1992) (quoting Tarleton v. Meharry Med. Coll, 717 F.2d 1523, 1535 (6th Cir. 1983))). See, e.g., Service, Hosp. & Nursing Home Pub. Employees Union, Local No. 47 v. Commercial Prop. Servs., Inc., 755 F.2d 499, 507 (6th Cir. 1985) (district court properly denied nonsignatory employer s summary judgment motion without prejudice as premature, given that discovery on alter ego / single-employer issue had not been completed). It is a well-established principle that the plaintiff must receive a full opportunity to conduct discovery to be able to successfully defeat a motion for summary judgment. Farah v. Wellington, 295 F. App x 743, 747 (6th Cir. 2008) (quoting Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004)). [I]mplicit in the opportunity to respond is the requirement that sufficient time be afforded for discovery necessary to develop facts essential to justify opposition to the motion. Transition Healthcare Assocs., Inc. v. Tri-State Health Investors, LLC, 306 Fed. Appx. 273, 278, 2009 U.S. App. LEXIS 636, 2009 WL 67869, *5 (6th Cir. 2009) 21