Federal Court Issues Order in Little Traverse Reservation Boundaries Case Bifurcating Merits and Remedies Phases

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.):

91. 2016-07-06 Opinion and Order Bifurcating Case and Granting Denying Plf’s MSD

An excerpt:

“‘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:

Doc. 66 – Tribe’s Memorandum in Support of Combined Motion for Partial Summary Judgment and Rule 12(f) Motion to Strike Defenses or Rule 26(b) Motion to Limit Discovery

Doc. 75 – State’s Brief in Opposition to Tribe’s Combined Motion for Partial Summary Judgment and Rule 12(F) Motion to Strike Defenses or Rule 26(B) Limit Discovery

Doc. 80 – Tribe’s Combined Reply in Support of Rule 56 Motion for Partial Summary Judgment or Alternative Rule 12(f) Motion to Strike Defenses and Rule 26(b) Motion to Limit Discovery

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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.