Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 1 of 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

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1 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 1 of 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, Plaintiff, and Case No BC THE UNITED STATES Honorable Thomas L. Ludington Intervenor Plaintiff, v. JENNIFER GRANHOLM, et al., Defendants, and COUNTY OF ISABELLA and CITY OF MT. PLEASANT, Intervenor Defendants. UNITED STATES MOTION IN LIMINE TO EXCLUDE DEFENDANTS ROSEBUD SIOUX WITNESSES AND RELATED TESTIMONY PATRICIA MILLER U.S. Department of Justice Environment & Natural Resources Division Indian Resources Section L Enfant Plaza Station, P.O. Box Washington, D.C Telephone: ( Telefax: ( patti.miller@usdoj.gov Attorney for the United States 1

2 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 2 of 16 Pursuant to Federal Rules of Evidence 401 and 402, the United States respectfully submits this Motion in limine to exclude several of Defendants witnesses on the grounds that the 1 anticipated testimony of those witnesses is irrelevant and inadmissible. Defendants offer the witnesses to testify to matters relating to the inquiry of whether a congressional act diminished reservation boundaries under the framework set forth in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, (1977. However, Defendants admit that no congressional act is at issue in this case. The proper legal inquiry in treaty interpretation cases is to ascertain the parties intent and to construe the provisions liberally in favor of the Saginaw Chippewa Indian Tribe as the Indians would have understood them. Historians are therefore the relevant witnesses. When there is no post-treaty congressional act that is alleged to have diminished or disestablished the Reservation, an inquiry under Rosebud Sioux is not implicated. Demographics, modern jurisdictional patterns, justifiable expectations, and other factors used to glean congressional intent are consequently irrelevant. Therefore, the testimony of Defendants witnesses who are expected to testify to facts or opinions related to an inquiry under Rosebud Sioux and its progeny should be excluded as irrelevant and inadmissible under Federal Rules of Evidence 401 and 402. Pursuant to Local Rule 7.1(a, the United States could not obtain concurrence to this Motion from Defendants. The Saginaw Chippewa Tribe concurs. Submitted herewith is the United States Brief in Support of this Motion in limine. 1 This Motion concerns only Phase I potential witnesses. The United States reserves its right to challenge other witnesses, including historians and Phase II witnesses, on other grounds at the appropriate time. The United States is unclear, however, as to what may constitute a Phase II, or remedial phase, of this declaratory judgment action. 2

3 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 3 of 16 Dated: January 30, 2009 /s/patricia Miller PATRICIA MILLER U.S. Department of Justice Environment & Natural Resources Division Indian Resources Section L Enfant Plaza Station, P.O. Box Washington, D.C Telephone: ( Telefax: ( patti.miller@usdoj.gov Attorney for the United States 3

4 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 4 of 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, Plaintiff, and Case No BC THE UNITED STATES, Honorable Thomas L. Ludington Intervenor Plaintiff, v. JENNIFER GRANHOLM, et al., Defendants, and COUNTY OF ISABELLA and CITY OF MT. PLEASANT, Intervenor Defendants. UNITED STATES BRIEF IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE DEFENDANTS ROSEBUD SIOUX WITNESSES AND RELATED TESTIMONY PATRICIA MILLER U.S. Department of Justice Environment & Natural Resources Division Indian Resources Section L Enfant Plaza Station, P.O. Box Washington, D.C Telephone: ( Telefax: ( patti.miller@usdoj.gov Attorney for the United States

5 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 5 of 16 CONCISE STATEMENT OF ISSUES PRESENTED 1. Should Defendants Rosebud Sioux witnesses and their testimony be excluded when they are irrelevant to the canons of construction for Indian treaties? i

6 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 6 of 16 CONTROLLING AND MOST APPROPRIATE AUTHORITIES Fed. R. Evid. 401 Fed. R. Evid. 402 General Allotment Act, 24 Stat. 388 (Feb. 8, 1887 Choctaw Nation of Indians v. United States, 318 U.S. 423 (1943 Hagen v. Utah, 510 U.S. 399 (1994 Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514 (6th Cir Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977 Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351 (1962 Solem v. Bartlett, 465 U.S. 463 (1984 South Dakota v. Yankton Sioux, 522 U.S. 329 (1998 Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979 ii

7 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 7 of 16 I. INTRODUCTION Pursuant to the Court s Order of October 22, 2008, Dkt. No. 121, the parties submitted their witness lists and objections to certain witnesses. Dkt. Nos. 125, 126, 127, 130 & 132. At a status conference held on December 17, 2008, the Court requested that the parties stipulate to the scope of Defendants diminishment theory and brief, in the context of motions in limine, the law applicable to Indian reservation boundary diminishment claims in order to address the relevancy 1 of several of Defendants named witnesses. The parties stipulated that Defendants do not allege that any act of Congress post-dating the Treaties of 1855 and 1864 ( Treaties diminished or disestablished the Isabella Reservation. Dkt. No. 149, 1. Instead, Defendants theory is that if the Treaties established the Isabella Reservation, it nonetheless was diminished by their operation. Id. 2. Therefore, the parties agreed that in order to determine whether several of Defendants witnesses are relevant, the Court should decide whether the diminishment analysis as set forth in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, (1977, and its progeny, see, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343, 349, (1998; Hagen v. Utah, 510 U.S. 399, 421 (1994; Solem v. Bartlett, 465 U.S. 463, (1984, applies here where there is no allegation of a post-treaty congressional act that diminished or disestablished the Reservation. Id The appropriate legal framework for interpreting the Treaties is to ascertain the intent of the treaty parties and to construe the provisions liberally in favor of the Tribe as the Indians 1 This Motion concerns only Phase I potential witnesses. The United States reserves its right to challenge other witnesses, including historians and Phase II witnesses, on other grounds at the appropriate time. The United States is unclear, however, as to what may constitute a Phase II, or remedial phase, of this declaratory judgment action. 1

8 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 8 of 16 would have understood them. Because there is no post-treaty act at issue here, the diminishment analysis and factors as set forth in Rosebud Sioux and related cases that focus on specific statutory language and congressional intent are inapplicable. As a result, the State s witnesses 2 Kenneth Darga, Anthony C. Olkowski, and perhaps Don Seal, should be excluded. In light of the Court s ruling that the City and the County cannot call the State s witnesses as their own, all of the City s and County s witnesses that are identical to the State s witnesses should be excluded, as well as their Rosebud Sioux witnesses. The following witnesses named by the State are potentially relevant in interpreting the Treaties: LeRoy Barnett, Anthony Gulig, Theodore 3 Karamanski, and perhaps Don Seal. II. ARGUMENT Federal Rule of Evidence 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid Evidence which is not relevant is not admissible. Fed. R. Evid Because a diminishment analysis pursuant to Rosebud Sioux is not the proper legal analysis for ascertaining the meaning of the Treaties, Defendants witnesses who are expected to testify about the factors set forth in Rosebud Sioux should be excluded as irrelevant and inadmissible. 2 It is unclear whether Don Seal is expected to testify about historical or modern maps. If he is expected to testify about modern maps, his testimony is irrelevant. 3 The expected testimony of LeRoy Barnett is not relevant for determining the meaning of the Treaties, but may be relevant for determining which lands were within the boundaries of the Isabella Reservation under Defendants theory. See footnote 1 concerning Don Seal. 2

9 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 9 of 16 A. THE ANALYTICAL FRAMEWORK FOR INDIAN TREATY INTERPRETATION CASES IS TO ASCERTAIN THE PARTIES INTENT AND TO CONSTRUE PROVISIONS LIBERALLY IN THE TRIBE S FAVOR AS THE INDIANS WOULD HAVE UNDERSTOOD THEM. The canons of Indian treaty construction are well-established and long settled. A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations. Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675 (1979 (citation omitted. As such, it is the intention of both parties that control the interpretation. Id. The Supreme Court has explained that [T]he United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side. The treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians. Id. at (citation omitted; see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999; United States v. Winans, 198 U.S. 371, (1905; United States v. Washington, 157 F.3d 630, (9th Cir Moreover, treaties are to be interpreted liberally in favor of the Indians and treaty ambiguities are to be resolved in their favor. See McClanahan v. State Tax Comm n of Ariz., 411 U.S. 164, 175 (1973; Winters v. United States, 207 U.S. 564, (1908. How the words of the Treaty were understood by [the Indians], rather than their critical meaning, should form the rule of construction. Keweenaw Bay Indian Cmty v. Michigan, 784 F. Supp. 418, (W.D. Mich (quoting Worchester v. Georgia, 31 U.S. (6 Pet. 515, 582 (1832. Thus, the Indians understanding of the treaty terms is critical in interpreting the treaties. To ascertain the parties intentions and the Indian s 3

10 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 10 of 16 understanding, courts may look beyond the written words to the larger context that frames the Treaty, including the history of the treaty, the negotiations, and the practical construction adopted by the parties. Mille Lacs, 526 U.S. at 196 (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 432 (1943. These long-standing canons regarding the construction of Indian treaties apply here. Because Defendants theory is that the Treaties, by their own terms, diminished the Isabella Reservation, if established, the focus is and can only be the meaning of the Treaties. Thus, the relevant witnesses are primarily historians who can aid the Court in understanding the historical context, the intent of both the United States and the Indians at the time of the Treaties execution, the treaty negotiations, and the practical construction adopted by the parties at the time. See Mille Lacs, 526 U.S. at (discussing historical record to understand meaning of treaty. Linguists and anthropologists also may be relevant as they may aid the Court in understanding the historical culture and context, the Indians understanding of the terms, and other factors relevant to the Treaties meaning. However, witnesses who testify about Rosebud Sioux factors, such as non-contemporaneous demographics, post-treaty Indian land ownership, modern jurisdictional patterns, and evidence concerning the impact of a declaration as to the Treaties meaning, see, e.g., City s Second Amended Witness List, Dkt. No , are typically irrelevant in ascertaining the meaning of the treaty terms and should be excluded. B. THE ANALYTICAL FRAMEWORK SET FORTH IN ROSEBUD SIOUX AND ITS PROGENY ONLY APPLY TO POST-TREATY CONGRESSIONAL ACTS. The canons of construction regarding whether a reservation has been diminished by a post-treaty act (typically called surplus lands acts are also well-established and long settled, 4

11 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 11 of 16 and differ significantly from the canons of construction for interpreting treaties. The touchstone for interpreting a surplus lands act is congressional intent. [W]hen Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress. United States v. Celestine, 215 U.S. 278, 285 (1909. Reservation boundaries may survive its mere opening to settlement and allotment. See DeCoteau v. Dist. County Court for Tenth Judicial Dist., 420 U.S. 425, 444 (1975. There must be clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty. Mille Lacs, 526 U.S. at (quoting United States v. Dion, 476 U.S. 734, 740 (1986; see also Menominee Tribe of Indians v. United States, 391 U.S. 404, (1968 (congressional intent to modify or abrogate treaty will not be lightly imputed. Thus, [a] congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history. Mattz v. Arnett, 412 U.S. 481, 505 (1973 (citing Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351 (1962 and United States v. Nice, 241 U.S. 591 (1916. The Supreme Court developed the diminishment doctrine to discern Congress intent in applying the General Allotment Act, 24 Stat. 388 (Feb. 8, 1887 ( Dawes Act to particular reservations and in interpreting post-treaty congressional legislation that opened certain reservations to non-indian settlement, often called surplus lands acts. The Dawes Act envisioned the division of reservations into family-sized farms, or allotments, for the tribal members. The remaining lands within a reservation were to be declared surplus, or opened, and made available to non-indians. Id. 5, 24 Stat. at Congress followed the Dawes 5

12 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 12 of 16 Act with numerous surplus lands acts that sought to describe the opening of particular reservations. Congress enacted over 100 such acts; none addressed the Isabella Reservation. In some instances, the surplus lands acts ratified agreements reached between the United States and a tribe. See, e.g., Yankton Sioux, 522 U.S. at (1894 Act ratified 1892 agreement. In other cases, the legislation was drafted and enacted without tribal consent. See, e.g., Mattz, 412 U.S. at (1892 Act unilateral congressional action. Such legislation often did not address specifically the fundamental question of whether Congress, in opening the surplus lands to settlement, sought to remove those lands from the reservation and thus accomplish a diminishment, sought to terminate the reservation and thus disestablish the boundaries, or sought to encourage settlement of non-indians amongst the Indians while preserving the reservation s status. The diminishment analysis provided a framework for discerning congressional intent with respect to the effect of the surplus lands acts on reservation boundaries. The Supreme Court in Hagen summarized the diminishment analysis: Our precedents in the area have established a fairly clean analytical structure, directing us to look to three factors. The most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands. We have also considered the historical context surrounding the passage of the surplus land Acts, although we have been careful to distinguish between evidence of the contemporaneous understanding of the particular Act and matters occurring subsequent to the Act's passage. Finally, on a more pragmatic level, we have recognized that who actually moved onto opened reservation lands is also relevant to deciding whether a surplus land Act diminished a reservation. Throughout the inquiry, we resolve any ambiguities in favor of the Indians, and we will not lightly find diminishment. 510 U.S. at (internal citations and quotations omitted. 6

13 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 13 of 16 Subsequent jurisdictional history and percentage of Indian land ownership or population come into play in diminishment cases only as further evidence of congressional intent. See Hagen, 510 U.S. at ( Absent other plain and unambiguous evidence of a congressional intent, we have never relied upon contemporary demographic or jurisdictional considerations to find diminishment.. In Rosebud Sioux, the Court looked at the subsequent jurisdictional history and Indian land ownership and demographics to confirm its understanding of congressional intent in passing a 1904 congressional Act that disestablished the Tribe s reservation. 430 U.S. at Similarly, in Hagen, the Court looked at whether non-indian settlers flooded into the opened reservation as an additional clue as to what Congress expected would happen after the passage of the act. 465 U.S. at The diminishment doctrine was not developed as a tool for interpreting treaties and should not be applied to treaty construction for the simple reason that congressional intent is not the primary issue. See, e.g., Seymour, 368 U.S. at 359 (while recognizing that Congress can separate tracts of land from a reservation once established, Court did not engage in diminishment analysis because there was no such post-treaty congressional act; but see Shawnee Tribe v. United States, 423 F.3d 1204, (10th Cir (adapting analytical framework from diminishment cases to interpret intent of both the Tribe and the United States in a treaty; Cayuga Indian Nation of N.Y. v. Village of Union Springs, 317 F. Supp. 2d 128, (N.D.N.Y Indeed, a survey of Indian reservation diminishment/disestablishment cases reveals that the vast majority (all except two out of twenty-six involve post-treaty congressional acts, not the treaties themselves. See Exhibit A. 7

14 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 14 of 16 Lastly, and importantly, Sixth Circuit precedent forecloses Defendants argument that the post-treaty congressional intent inquiry employed under Rosebud Sioux and related cases is applicable to treaty interpretation cases. This Circuit has ruled that Indian treaties are not the equivalent of congressional acts and cannot be treated as such. In Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514 (6th Cir. 2006, the State of Michigan argued that the Tribe s treaty was sufficient to demonstrate clear congressional intent to allow for state taxation of reservation lands. While the Court agreed that treaties and congressional acts have similar legal import, it disagreed that treaties can be treated as congressional acts. It explained: A treaty is not a federal statute or an act of Congress. In our view, Congress makes its intent to allow state taxation of reservation lands unmistakably clear when it passes a statute to that effect. It is no coincidence that the Supreme Court used phrases such as federal statutes and act of Congress in describing what would be necessary for the Court to deem state taxation of reservation lands permissible. A treaty simply does not embody this clear congressional intent, as a treaty's ratification only involves the Senate, and thus does not have the same bicameral hurdles of an act of Congress. Defendants argue that because a treaty, under United States law, is self-executing and is the law of the land, it is the equivalent of an act of the legislature. We agree that the effect of a treaty has legal import, as does the effect of an act of legislation; however, the mere fact that a treaty has legal force does not mean it is an act of Congress. All of the cases to which Defendants cite stand only for the proposition that, under United States law, a treaty is self-executing and does not require additional legislation to take effect. While this is true, this does not mean a treaty is in fact an act of Congress representing that body's will. Concededly, legal authority may be derived from sources other than Congress, but the fact that a treaty has certain legal import is insufficient to establish that a treaty is an act of Congress that represents its will. 452 F.3d at (citations omitted. Treaties and congressional acts, then, should be interpreted differently using different canons of construction. Defendants therefore cannot ignore 8

15 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 15 of 16 the long-standing canons on Indian treaty construction by attempting to treat the 1855 and 1864 Treaties the same as congressional acts. The analysis in Rosebud Sioux and related cases, which focuses on congressional intent as to whether Congress clearly intended to limit or abrogate a treaty, is simply inapplicable to the interpretation of Indian treaties, which focuses on the parties intent while construing terms liberally in favor of the Indians as they would have understood them. As such, the witnesses identified by Defendants as testifying to matters and factors under a Rosebud Sioux analysis are irrelevant and should be struck. III. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court grant its Motion in limine to exclude Defendants Rosebud Sioux witnesses and their testimony. Dated: January 30, 2009 Respectfully submitted, /s/ Patricia Miller PATRICIA MILLER U.S. Department of Justice Environment & Natural Resources Division Indian Resources Section L Enfant Plaza Station P.O. Box Washington, D.C Telephone: ( Telefax: ( patti.miller@usdoj.gov Attorney for the United States 9

16 Case 1:05-cv TLL-CEB Document 150 Filed 01/30/2009 Page 16 of 16 CERTIFICATE OF SERVICE This is to certify that on January 30, 2009, the United States Motion in limine to Strike Defendants Rosebud Sioux Witnesses and Related Testimony was filed electronically with the Clerk of the Court using the ECF system which will send notification of such filing to all counsel of record. /s/ Patricia Miller PATRICIA MILLER U.S. Department of Justice Environment & Natural Resources Division Indian Resources Section L Enfant Plaza Station P.O. Box Washington, D.C Telephone: ( Telefax: ( patti.miller@usdoj.gov Attorney for the United States 10