Federal Court Dismisses Individual Tribal Member’s Attempt to Invoke Treaty Rights

Written by: Matthew Fletcher

Primary Source : Turtle Talk, April 1, 2016

Here are the materials in Turunen v. Creagh (W.D. Mich.):

56 DCT Order to Show Cause re Rule 19

57 Plaintiff’s Brief

58 DNR Brief

61 KBIC Letter

62 Fond du Lac Band Letter

63 Red Cliff Band

64 LCO Brief

66 Plaintiff’s Response to Tribes

67 DCT Order Dismissing Complaint

An excerpt:

Plaintiff, Brenda Turunen, is a member of the Keweenaw Bay Indian Community (KBIC), a federally recognized Indian tribe in Michigan’s Upper Peninsula that is the successor-in-interest to the L’Anse and Ontonagon bands of the Lake Superior Chippewa Indians. In 1842, the Lake Superior Chippewa  Indians signed a treaty with the United States of America, 7 Stat. 591 (the 1842 Treaty), in which the Indian signatories ceded large portions of the western Upper Peninsula of Michigan, but reserved “the right of hunting on the ceded territory, with the other usual privileges of occupancy.” 7 Stat. 591.

Plaintiff owns property that is within the “ceded territory” at issue in the 1842 Treaty. Plaintiff asserts that the “the usual privileges of occupancy” reserved by the KBIC on the ceded territory included commercial farming and animal husbandry. Based on that interpretation of the 1842 Treaty, Plaintiff seeks a declaration that she may—as a member of the KBIC—raise animals free from state regulation on her property within the ceded territory.

Plaintiff’s claim rests on the twin propositions that the KBIC retained certain rights in the 1842 Treaty, and that she may exercise such rights based on her membership in the KBIC. Although the Court must determine the scope of the rights retained by the KBIC to resolve Plaintiff’s claim, the KBIC is not a party to this action. Thus, the Court previously sought briefing from the parties regarding whether the KBIC should be joined pursuant to Federal Rule of Civil Procedure 19, and whether the case  should be dismissed if the KBIC could not be joined. After the parties responded, the Court—at Plaintiff’s urging—ordered Plaintiff to notify the KBIC of the pending action and the opportunity to intervene. The KBIC followed up to that notification with a letter to the Court stating that it would not intervene in the action, and further urging that the action be dismissed under Rule 19. For the following reasons, the Court concludes that the matter should be dismissed.

We have posted on this matter here, here, here, here, and here.

The following two tabs change content below.
Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.