downtown Petoskey

Undated photo of a trolley bus in downtown Petoskey.

(MLive file)

PETOSKEY, MI -- A Michigan tribe has gone to court in an under-the-radar bid to designate much of Hemingway country as the state's largest Indian reservation.

The Little Traverse Bay Band of Odawa Indians is suing the state in federal district court, claiming treaties in 1836 and 1855 gives the tribe sovereignty over 337 square miles of land and 103 miles of shoreline in northern Michigan.

The case is expected to take years to resolve. But, if a judge decides a reservation was established more than 160 years ago, most of Emmet County, part of Charlevoix County, the cities of Petoskey, Harbor Springs, Good Hart, part of Charlevoix and two Lake Michigan islands would fall under tribal jurisdiction.

The boundary would encompass well-known tourist draws like Boyne Highlands ski and golf resort, Petoskey State Park, M-119 Tunnel of Trees, Little Traverse Wheelway and the well-heeled Bay Harbor resort community.

The 337 square miles of claimed area would be the largest reservation in Michigan, surpassing the 328-sqaure-mile Lac Vieux Desert Indian Reservation in southeastern Gogebic County on the Michigan-Wisconsin border.

"This is the biggest case ever to hit northern Michigan," said Lance Boldrey, a former state-tribal liaison for the state of Michigan under Gov. John Engler who is representing two groups of private landowners opposing the tribe.

"It's hard for people to wrap their heads around."

The Little Traverse Bay Band, formally recognized 22 years ago, filed suit last year in Kalamazoo federal court. The tribe claims, as predecessor to Ottawa and Chippewa people living in Michigan territory prior to European settlement, that the disputed land is "Indian country" where the state is exercising "improper" authority by collecting income tax and enforcing child welfare laws.

Judge Paul Maloney split the case in half this year. The first half -- which will likely turn on the interpretation of what Native Americans thought they were getting from the U.S. government more than a century ago -- is tackling the question of whether or not a reservation was actually established in the 1800s.

Expert historical witness reports are due next June. Assuming a reservation was created, the second half of the case would involve untangling the new morass of jurisdictional confusion that would erupt as result.

"From the non-Indian perspective, there is literally not a single positive that would come out of this," Boldrey said. "There would be huge consequences now and for generations into the future."

Boldrey represents two intervening defendants, the Emmet County Lakeshore Association and Protection of Rights Alliance. The private groups see the tribe's move as a quest for power, not simply a dispute over state laws.

Jim Bransky, a Traverse City attorney representing the tribe, says the Little Traverse Bay Band simply wants jurisdiction over its ancestral homeland.

"It is absolutely not about getting land back," he said.

"The lawsuit seeks to affirm the reservation boundary," said Bransky. "It in no way seeks title to private land and the tribe doesn't seek to supplant the local governments that have developed."

Reservation was 'always a goal'

Determining the validity of the tribe's claim will require an exhaustive examination of historical research by expert witnesses.

In 1836, multiple Ottawa and Chippewa tribes ceded roughly 14 million acres -- about 37 percent of the state of Michigan -- to the U.S. government in what's known as the Treaty of Washington. The land included most of the northwest Lower Peninsula and the eastern half of the Upper Peninsula.

Almost 20 years later, in 1855, the U.S. government -- having realized resettling Native Americans en masse in western territories wasn't going to work -- drafted a new treaty with Michigan's Ottawa and Chippewa tribes that, for a time, took land off the public sale market for allotment to tribal members.

The Little Traverse Bay Band claims the 1855 treaty created a 216,000-acre reservation consisting of 11 townships, stretching 32 miles north-to-south from the Straits of Mackinac to the northern shore of Lake Charlevoix. The area also includes Garden Island and High Island in the Beaver Island archipelago.

The tribe claims land frauds and federal agents kept ancestors from exercising sovereignty over their treaty land and the lawsuit quotes historical references from 19th century state and federal officials in support of its claim.

The tribe says modern state and local cooperation agreements over taxation, hunting rights, road maintenance, law enforcement and environmental cleanup within the claimed reservation area effectively acknowledge the boundary.

Currently, the Odawa tribe has scattered parcels held in trust around Emmet County, including land on which the tribe has build the Odawa Casino & Resort in Petoskey and is building a Class II casino in Mackinaw City.

Bransky said the tribe thought the wider reservation boundary was part of the 1994 law granting the band federal recognition, but "it turned out that other governments didn't necessarily agree with that interpretation."

"Reaffirming the reservation boundary was always part of the tribe's goal."

What impacts of new tribal jurisdiction?

Bransky characterized a reservation as just another layer of jurisdiction, but opposing parties counter that a tribal victory would cause major local disruption and could result in an area-wide drop in prosperity and property values.

On Native American reservations, tribes exercise sovereign authority that supersedes state and local laws. They are, in many ways, like miniature nations within the confines of U.S. states; bound only to most federal laws.

Because of tribal sovereignty, state and local laws that govern land use zoning, construction and environmental protection, among other things, wouldn't apply to the tribe or any of its members within the reservation, said Boldrey.

The tribe could impose additional taxes and fees, he said, or approve policies like that of an Oregon tribe using its sovereignty to grow marijuana.

Any civil disputes between a non-Indian and a tribal member would likely default to tribal court, which has different procedural and appellate rules. Some criminal cases involving non-tribal members could end up in tribal court as well, he said.

The tribe could allow Class II casino gaming on any member-owned property, which Boldrey said could result in a proliferation of slot machines.

Uncertainty created by the reservation will discourage investment, he argued.

Tribal policy can shift over time and subsequent tribal councils are not necessarily bound to past agreements or assurances, Boldrey said. Should a non-tribal member have a grievance with the council, there is no right to influence the body, participate in tribal elections or even attend a council meeting.

Local non-Indians did not choose to live on a reservation and shouldn't be subject to a government in which they have no voice, he contends.

"One of the difficulties with this area is that even if the tribal court system today is a wonderful and open and transparent system -- just like even if the tribe today says they will adopt local zoning codes and apply those rules to members -- that doesn't necessarily mean 10 years from now that'll be the case," Boldrey said.

Local officials are worried. The cities of Petoskey, Charlevoix, Harbor Springs, both Emmet and Charlevoix counties and the 11 affected townships were added to the case as intervening defendants in February.

In the filing, the tribe didn't name any local governments as defendants, but Jim Murray, an attorney representing the city of Petoskey, said the tribe "seeks to enjoin cities like Petoskey from doing anything in concert with the state."

"How it impacts the city is still very unclear at this stage," Murray said. At the very least, it "certainly could impact taxes, law enforcement, environmental issues, building codes and liquor licenses."

"They did not limit the scope in their complaint."

What's not in the complaint raises questions, both Murray and Boldrey said.

The tribe claims the state is violating the Indian Child Welfare Act -- which gives tribes authority over child custody issues involving tribal children -- and has refused to exempt all tribal members from taxation in the claimed reservation boundary. The tribe also says local governments are not following federal guidelines that protect Native American burial grounds.

But the tribes claims are general and do not cite any specific disputes.

"There are more issues at play than they've disclosed," said Murray. "The tribe could have given a laundry list of examples of what they are seeking in their complaint, but they didn't."

Tribes have won this kind of case before

Part of the local concern is rooted in legal successes that tribes have had in Michigan and other states in asserting rights on disputed land.

In March, the U.S. Supreme Court ruled in favor of the Omaha Tribe, which sparked a lawsuit when it tried to impose a 10 percent liquor tax in the Nebraska village of Pender. The state had argued Pender was no longer part of the reservation because the village's tribal population had never exceeded 2 percent and the tribe hadn't ever before exercised jurisdiction over the village.

In Michigan, both the Saginaw Chippewa tribe and the Keweenaw Bay community of the Lake Superior Band of Chippewa Indians have sued the state and successfully established reservations.

Boldrey says the Odawa tribe is downplaying the potential impact on the area if the tribe succeeds. His clients worry Attorney General Bill Schuette's office doesn't have the resources or will to fight the tribe and might try to settle the case in a way that's not protective of local interests.

Andrea Bitely, spokeswoman for the state attorney general's office, declined to comment on the case because of the pending litigation.

Bransky argues that local worries would all be addressed though intergovernmental cooperation agreements of the type that spell out how law enforcement, child custody matters, taxation, zoning restrictions, nuisance ordinances and other jurisdictional issues are handled in Isabella County.

The northern half of Mount Pleasant now sits within the Isabella Indian Reservation controlled by the Saginaw Chippewa Tribe, which sued the state in 2005 and, through mediation, hammered-out a complicated settlement in 2010.

The Isabella outcome could provide insights into the Little Traverse Odawa case, said John Wernet, general counsel for the Sault Ste. Marie Tribe of Chippewa Indians and former state-tribal liaison under Gov. Jennifer Granholm.

Wernet said the Isabella case was an "interesting and unusual" outcome that was "by no means a foregone conclusion." Local residents were concerned about land use issues, questions about which police agencies would enforce laws and which courts would deliver punishment and handle litigation.

"In general, it wasn't easy, but most of those issues got sorted out in an amicable way," Wernet said. "The tribe, the county, the city and the state found ways to resolve those kinds of problems through intergovernmental agreements that made the future more predictable and acceptable to everybody."'

Whatever the outcome, the Little Traverse Bay Band case is likely to drag on for several years. The case first half may not even go to trial until 2018 and the losing side would likely exhaust the federal appellate process before moving on.

Bransky said the tribe simply wants to "forge partnerships" with local governments and desires to be a "good neighbor like they always have."

"Our view is, government and property owners' resources might be much better spent at the negotiating table figuring out how we can all live together here."