Not Reported in Am. Tribal Law, 2004 WL 5714978 (Grand Traverse Tribal Ct.)
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Grand Traverse Band of Ottawa and
Chippewa Indians Tribal Court.
In re Jacob Mitchell MENEFEE, Robin Menefee and Eva Menefee, Petitioners,
GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Respondents.
May 5, 2004.
Attorneys and Law Firms
Donna L. Budnick, DeWitt, MI, for Petitioners.
Matthew L.M. Fletcher, Grand Traverse Band of Ottawa and Chippewa Indians, Suttons Bay, MI, for Respondent.
DECISION AND ORDER
WILSON D. BROTT, Associate Judge.
I. FACTS AND PROCEDURAL HISTORY
The facts of this case are not in material dispute. In June 1997, Petitioners Robin and Eva Menafee attempted to enroll their son, Jacob Mitchell Menafee as a member of the Respondent Grand Traverse Band of Ottawa and Chippewa Indians. On August 8, 1997, the membership office of the Respondent denied the application on the basis that Jacob Menafee was less than one-quarter Indian blood, and on the basis that he was already enrolled as a member of the Oneida of Thames Indian tribe in Canada. It is undisputed that the Oneida Tribe is not recognized by the United States government as a “federally recognized Indian tribe” as defined by 25 C.F.R. § 83.1. Petitioner filed a lawsuit with this Court in October 1997 seeking to overturn the decision of the membership office. The Respondent filed a motion to dismiss the matter on the grounds that the matter was a political question not justiciable by the Tribal Court. On February 22, 1999, Judge Michael Petoskey granted the Defendant’s motion to dismiss on that basis. Petitioner filed a timely appeal to the Grand Traverse Band of Ottawa and Chippewa Indians Tribal Appellate Court, which reversed and remanded. The Court of Appeals stated that:
This Court holds that these decisions are under the clear authority of the Trial Court as they involve the interpretation of the meaning of the words in the Constitution when they are ambiguous. That means that they are capable of more than one meaning where a valid dispute has arisen over their meaning.
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This Court holds that the Trial Court does have jurisdiction to decide whether the Tribal Constitution, Article II bars an Indian person otherwise qualified to become a member solely because they are a member of an Indian Tribe located in Canada and recognized by the federal government as an Indian tribe. This involves interpretation of the Constitution and the meaning of the words “federally recognized Indian tribe.” It also means interpretation of Section 1 as to whether the “Canadian” Indian tribes can be added to the Section as an automatic denial of the Indian blood quantum of an ancestor.
This matter was remanded back from the Grand Traverse Band of Ottawa and Chippewa Indians Tribal Appellate Court with the instruction that “The matter is remanded to the trial court with instruction to reach both issues with an interpretation of both the blood quantum restriction and the definition of ‘federally’ recognized tribes for the Membership Enrollment Committee to use in the future.”
This Court then scheduled the matter for a status conference and for trial. At the trial, as the facts of this matter were not materially in dispute, with the agreement of the parties, the Court agreed to treat the matter essentially as though the parties had presented cross-motions for summary disposition, with the understanding that the Court would resolve the issues based upon the facts presented to the Court through written documents and affidavits submitted by the parties. The Court further allowed the parties to present oral arguments and to file supplemental briefs subsequent to oral arguments in order to clarify and/or expound upon arguments made at the oral argument and in the pre-trial briefs.
The issues as presented to the Court and clarified by the Court of Appeals are as follows:
A. What is the definition of “Indian blood” as it relates to whether Petitioner meets the eligibility requirement of Article II, Section 1(b)(2)(a) of the Constitution that he is “at least one-fourth (1/4) Indian blood, of which at least one-eighth (1/8) must be Michigan Ottawa and/or Chippewa blood.”
B. What is the meaning of “federally-recognized Indian Tribe, Band or Group” as it relates to whether Petitioner is prevented from being enrolled as a member pursuant to Article II, Section 2 of the Constitution, which states that “No person shall be eligible to be a member of the Grand Traverse Band if that person is enrolled in another federally-recognized Indian Tribe, Band, or Group”.
Petitioner’s argument hinges largely on history: that “Indian blood” should be interpreted to include Canadian Indian blood based upon the historical location and migration of the of Ottawa and Chippewa Indians throughout the Great Lakes region (including both the United States and Canada), that the Court should not necessarily draw a distinction between or recognize the political boundaries of the United States and Canada. Further Petitioner argues that at some level, the United States government does recognize Canadian Indian tribes and gives special rights to American Indians born in Canada to cross the border between the United States and Canada. See 8 U.S.C. § 1359.
Respondent argues that the Court should uphold the decision of the membership office to reject Petitioners’ application for membership and requests that the Court adopt the interpretations of the Constitution relied upon by the membership office. Respondent argues that the history of migration of the tribes is irrelevant to the issue of interpreting the. Constitution adopted by the Grand Traverse Band adopted in 1988. Respondent argues that the United States government placed certain constraints upon the Grand Traverse Band’s Constitution before it would recognize the tribe, and urges the Court to interpret “Indian blood” as meaning essentially “American Indian blood,” and not including Canadian Indian blood.
Finally, Respondent seems to argue that this Court should not interpret the Constitution as it relates to this issue, but rather defer to the interpretation of the Constitution made by the legislative and/or executive branches of the Tribal government on these issues, and seems to question whether the Court should pass judgment on this matter at all.1 The Court finds this argument to be unpersuasive, particularly in light of the prior decision of the Court of Appeals in this matter instructing this Court to resolve the apparent ambiguity in the Constitution.
The Court is faced with issues which goes to the very essence of who the Grand Traverse Band of Ottawa and Chippewa Indians includes, as the issues relate to the determination of eligibility for membership in the Tribe. A tribe’s right to define it’s own membership for tribal purposes has long been recognized as central to its existence as an independent political community. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, n. 32, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978).
This Court has the inherent power to interpret the Constitution. As Chief Justice Marshall proclaimed two centuries ago, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). The Court has been instructed in this case by the Court of Appeals to interpret the Tribal Constitution in this matter. The legislative branch has not adopted an interpretation of the Constitution as it relates to membership. Rather, the executive branch, in this case the Membership office, has administratively denied Petitioner’s request for enrollment as a member. This Court rejects the Respondent’s argument that this case is merely a matter of giving deference to the decision of the Membership office. Unlike the Court in Deverney v. Grand Traverse Band of Ottawa and Chippewa Indians, Case No. 96–10–201, the Court here is not just dealing with a matter of interpreting the actions of the executive branch of government, but instead the Court is also dealing with larger Constitutional issues. The Court’s role is to review the actions taken by the membership office to determine whether they were Constitutional, not to substitute the Court’s opinion for that of the Membership office. The Court is required to interpret and give meaning to the Constitutional provisions at issue in the context of the actions taken by the Membership office. In sum, this Court does not view this case as a separation of powers case, but rather a case involving the interpretation of the Constitution as it relates to the membership provisions of the Constitution.
The Court has been charged with resolving ambiguities in the Constitutional provisions at issue in this case. The first rule a court should follow in ascertaining the meaning of words in a constitution is to give effect to the plain meaning of such words as understood by the people who adopted it. Bond v. Public Schools of the Ann Arbor School District, 383 Mich. 693, 699–700, 178 N.W.2d 484 (1970). “[The Framers of the Constitution] as men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 187, 188, 6 L.Ed. 23 (1824).
A. Blood quantum
This Court must interpret the definition of “Indian blood” as stated in Article II, Section 1(b)(2)(a). There is no question that prior to the existence of the United States of America and Canada, that the boundaries that presently exist were not recognized by the Ottawa and Chippewa peoples, who freely migrated across what is now the Canadian–U.S. border. However, it is impossible to ignore that fact that the United States and Canada have an established border, which has now been in place for over 200 years. The Grand Traverse Band of Ottawa and Chippewa Indians is a people made up of Ottawa and Chippewa Indians, which were part of a larger nation of Native Americans indigenous to the Great Lakes region. However, the Grand Traverse Band of Ottawa and Chippewa Indians is an Indian tribe that in many respects has its physical boundaries and legal authority created and/or defined by the laws of the United States of America.
Although the Ottawa and Chippewa Indian nations have been in existence for centuries, the notion of a “federally-recognized” tribe is a relatively new one. The Grand Traverse Band of Ottawa and Chippewa Indians was organized under the Indian Reorganization Act, and was “federally recognized” as an Indian tribe by the United States government in 1980. A history of the Grand Traverse band in terms of federal recognition is summarized as follows:
The Grand Traverse Band is a federally recognized Indian tribe presently maintaining a government-to-government relationship with the United States. (Uncont. Fact N. 1.) The Band previously maintained a government-to-government relationship with the United States from 1795 until 1872, and is a successor to a series of treaties with the United States in 1795, 1815, 1836 and 1855. (Uncont. Fact. No. 2; P–1; P–2; P–3; P–5.)
In 1872, then-Secretary of the Interior, Columbus Delano, improperly severed the government-to-government relationship between the Band and the United States, ceasing to treat the Band as a federally recognized tribe. (Uncont. Fact N. 4; P–7; P–25 at 7–8; Tr. I McClurcken 41–43.) Following termination of the relationship, the Band experienced increasing poverty, loss of land base and depletion of the resources of its community. (Tr. I Chambers 71–72, 77–78; Tr. I Burtt 94–98; Tr. I Kewaygoshkum 121–22; Tr. III Petoskey 105–106; Tr. I Connolly 117–118.)
Between 1872 and 1980, the Band continually sought to regain its status as a federally recognized tribe. The Band’s efforts succeeded in 1980 when it became the first tribe acknowledged by the Secretary of the Interior pursuant to the federal acknowledgment process, 25 C.F.R. Part 54 (now 25 C.F.R. Part 83). (Uncont. Fact No. 5; P–25 at 8–10; P–8; P–17 through P–19; Tr. I Chambers 72–83.) On January 17, 1984, the Department of the Interior declared a single 12.5 acre parcel as the initial reservation of the Band. 49 Fed.Reg.2025 (Jan. 17, 1984).
The Band has a six-county service area in the Western District of Michigan, encompassing Antrim, Benzie, Charlevoix, Grand Traverse, Leelanau and Manistee Counties. (Uncont.Fact. No. 6.)
The history of the Band’s original recognition, executive termination and later re-recognition is essentially parallel to that of the Pokogon Band of Potawatomi Indians, the Little Traverse Bay Bands of Odawa Indians, and the Little River Band of Ottawa Indians. All three tribes were parties to the same series of treaties and the same termination by Secretary Delano in 1872. (P20; P–21; P–22.)
Between 1980 and 1988, the Band engaged in a protracted dispute with the Department of the Interior over the terms of its constitution. During this period, the Secretary of the Interior refused to take further land into trust for the Band. (Tr. I Burtt 108–112.) In March 1988, after the dispute was resolved, the Secretary ratified the Band’s Constitution. (P–24.)
Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F.Supp.2d 920, 924–925 (W.D.Mich.2002). The present Constitution of the Grand Traverse Band of Ottawa and Chippewa Indians was adopted on March 29, 1988, by its members, and was approved by the Secretary of Interior. It is undisputed that the Constitution was drafted and amended several times prior to adoption under strict guidelines imposed by the Bureau of Indian Affairs. The Secretary of Interior had authority to approve or disapprove the proposed Constitution under 25 U.S.C. § 476(a)(2). Many provisions of the Constitution of the Grand Traverse Band of Ottawa and Chippewa Indians were modified prior to its adoption in order to gain the approval and recognition of the United States government, including the membership provisions of the Constitution. Although it is certainly true that the Tribe’s Constitution was ultimately adopted and approved by the members of the Grand Traverse Band, this Court cannot ignore the circumstances under which the current Constitution was adopted and the influence the United States government also exerted on its creation.
The federal government has strongly urged against the acceptance of Canadian Indian blood for the purposes of determining a blood quantum related to the membership requirements of tribal constitutions. See letter from Marsha Kimball, United States Dept. of Interior to Larry Morrin, Bureau of Indian Affairs, dated February 22, 2002 concerning Little Traverse Bay Band; and letter from Mark Anderson, United States Dept. of Interior to Earl Barlow, Bureau of Indian Affairs, dated September 30, 1993, concerning St. Croix Band of Chippewa Indians. Their argument is based upon the definition of “Indian” in 25 U.S.C. § 479, which does not include Canadian Indians, and further upon other difficulties of determining the authenticity of Canadian Indian heritage. As noted by Respondent, membership in American Indian tribes is determined by tribal law, whereas membership in Canada is derived by Canadian federal or provincial law. As noted in the Kimball letter cited above:
The Department [of Interior]’s position in other contexts is that Canadian Indians are non-Indians. That is certainly the case in which Canadian nationals, possessed of Canadian Indian blood, are arrested and held by tribal law police and court systems. Canadian Indian blood does not factor into whether that individual is an “Indian for the purposes of tribal criminal jurisdiction”. Further the BIA should not be placed in a position in which it is required to evaluate and determine the authenticity of documents created by Canadian tribal entities.
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The reliance on documents other than those generated by the officials of the United States adds an element of uncertainty and the potential for abuse in the establishment of this crucial original membership list.
Kimball letter, supra, p. 3–4.
While the Court believes that the Petitioner’s argument is well grounded in history, this Court cannot ignore the context in which the current Constitution was adopted. Nor can this Court ignore the significant threat to the Tribe’s federal recognition by United States government that would be presented if this Court adopted Petitioner’s interpretation of the Constitution. Therefore, this Court is persuaded that the term “Indian Blood” as used in Article II, Section 1(b)(2)(a) of the Constitution was intended by the drafters of the Constitution to be limited to Indian blood from tribes which are recognized by the United States government within the boundaries of the continental United States, and was not intended to include Canadian Indian blood.
B. Federally-recognized Indian Tribe
Article II, Section 2 of the Grand Traverse Band of Ottawa and Chippewa Indians Constitution states that “No person shall be eligible to be a member of the Grand Traverse Band if that person is enrolled in another federally-recognized Indian Tribe, Band, or Group.” This Court must interpret the meaning of “federally-recognized Indian Tribe, Band or Group” as it relates to Petitioner’s request to be enrolled as a member of the tribe.
The Petitioner suggests that the United States government does in certain circumstances grant certain privileges (such as free border crossing) to members of Canadian Indian tribes. The term “federally recognized” refers to recognition of the existence of a tribal nation by the United States government. 25 C.F.R. § 83.1 states: “Indian tribe, also referred to herein as tribe, means any Indian or Alaska Native tribe, band, pueblo, village or community within the continental United States that the Secretary of the Interior presently acknowledges to exist as an Indian tribe.” Petitioner is a member of the Canadian–Indian tribe Oneida of Thames. There is no dispute that the Oneida of Thames tribe is not recognized by the United States government, nor by the United States Secretary of the Interior. The Indian Reorganization Act, under which the Grand Traverse Band was organized, excludes Canadian Indians from the definition of “Indian.” 26 U.S.C. § 479.
As outlined above, Respondents have shown that when the members of Grand Traverse Band of Ottawa and Chippewa Indians were in the process of drafting the Constitution and seeking approval of the same from the United States government, they were doing so after much negotiation with the Secretary of the Interior and the Bureau of Indian Affairs of the United States government. This Court finds that the term “federally recognized” in the context of the adoption of the Constitution is clearly intended to refer to federal recognition by the United States government of American Indian tribes.
The United States government does not recognize Canadian Indian tribes under its definition of “Indian” as stated in 26 U.S.C. § 479. Respondent has proven convincingly that the United States Secretary of Interior and Bureau of Indian Affairs has adopted as a policy of not recognizing Canadian Indians or Canadian Indian tribes as falling under United States laws concerning American Indians. Further, the Respondent has established that the Constitution was adopted and approved by the Grand Traverse Band of Ottawa and Chippewa Indians only after significant negotiations in which the Grand Traverse Band was required to limit the membership definition to fit the standards required by the United States government.
This Court is satisfied, that the Respondent has adequately shown that the circumstances under which the Grand Traverse Band adopted its Constitution intended that “federally-recognized Indian tribe” refer to those tribes which have been recognized by the United States government as an Indian tribe. Furthermore, it is clear to this Court that the plain meaning of “federal recognition” is recognition by the United States government as an Indian tribe within the boundaries of the continental United States, and does not include Indian tribes physically located in other countries such as Canada. To interpret otherwise would require the Court to ignore the plain meaning of the phrase as it is used under the laws of the United States, and to ignore the circumstances und
For the reasons stated above, this Court holds that the decision of the Membership office in rejecting the Petitioner’s application for membership was Constitutionally sound. This Court holds that “Indian blood” as stated in Article II, Section 1(b)(2)(a) of the Constitution was intended by the drafters of the Constitution to be limited to Indian blood from tribes which are recognized by the United States government within the boundaries of the United States, and was not intended to include blood from Canadian Indian tribes. This Court further holds that “federally-recognized Indian Tribe, Band or Group” as stated in Article II, Section 2 of the Constitution, refers to those tribes, bands or groups, which have been recognized by the United States government as an Indian tribe within the boundaries of the continental United States.
THEREFORE, IT IS HEREBY ORDERED that Respondent’s motion for summary judgment is hereby GRANTED, judgment is entered in favor of Defendants, and that the Petitioner’s application is hereby dismissed with prejudice. No costs shall be awarded to either party.
Not Reported in Am. Tribal Law, 2004 WL 5714978
The Respondent has spent an inordinate amount of time and effort to make the point that this Court should not second-guess the decision of the Membership Office as part of the executive branch of the tribal government. This Court would note that it has not and will not undertake. to legislate from the bench and does strive to give due deference to the decisions of the executive and legislative branches of government. It is the role of the tribal courts to interpret the Constitution adopted by the Grand Traverse Band, the laws adopted by the Tribal Council and the actions of the executive branch of the Tribal government in carrying out those laws. As stated by the United States Supreme Court concerning the separation of powers within the United States government: