Written by: Matthew Fletcher
Primary Source : Turtle Talk, July 7, 2016
Here is the order in Little Traverse Bay Bands of Odawa Indians v. Snyder (W.D. Mich.):
“‘Only Congress can divest a reservation of its land and diminish its boundaries,’ and its intent to do so must be clear.” Nebraska v. Parker, 136 S. Ct. 1072, 1078–79 (2016) (quoting Solem v. Bartlett, 465 U.S. 463, 470 (1984)). Even when a reservation exists and has not been diminished, however, a “long delay in seeking equitable relief . . . [can] evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance [a] suit seeks unilaterally to initiate.” City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 221 (2005); cf. Parker, 136 S. Ct. at 1082 (citing Sherrill, 544 U.S. at 217–221) (“Because petitioners have raised only the single question of diminishment, we express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the undisputed lands.”).
These two principles frame the dispute this motion presents: May equitable defenses lie in this lawsuit? To best answer this question and organize this case, bifurcation is appropriate. In the first phase, which will address the existence and diminishment of a reservation, equitable defenses cannot lie. If necessary, the Court will revisit the dispute at the second, remedial phase.
Here are the briefs: