Opinion
SC: 161869 COA: 353243
09-23-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lucus William COVEY, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the July 13, 2020 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to remand is DENIED.
Cavanagh, J. (dissenting).
I dissent from this Court's order denying leave and would have granted leave to appeal. This case concerns a matter of critical importance to our state's jurisprudence under MCR 7.305(B)(3) —whether the state has jurisdiction to criminally prosecute tribal citizens for crimes allegedly committed on tribal land. Here, the question is whether defendant, a member of the Little Traverse Bay Bands of Odawa Indians (the Tribe), committed the crimes in question on tribal land. See McGirt v Oklahoma , 591 U.S. ––––, ––––; 140 S. Ct. 2452, 2459, 207 L.Ed.2d 985 (2020) (holding that state courts generally have no jurisdiction to try Indians for conduct committed in "Indian Country"). Whether the crimes took place on tribal land turns on whether the governing agreement between the Tribe and the federal government—the Treaty of 1855 —established an Indian reservation and, if so, whether Congress subsequently disestablished it.
Defendant pleaded guilty to charges of malicious destruction of property (MDOP) between $1,000 and $20,000 and felonious assault. The Major Crimes Act, 18 USC 1153(a), states that jurisdiction over any Indian who commits "a felony assault under [18 USC 113 ]" against "another Indian or other person" is "within the exclusive jurisdiction of the United States," and 18 USC 113(a)(3) provides that an assault with a dangerous weapon is punishable as a felony. It seems clear, and the parties agree, that the felonious-assault charge falls under the act. The attorney general concedes, arguendo, the same for the MDOP charge.
Specifically, the crimes were committed near Petoskey, in Emmet County. Defendant and the Tribe, as amicus curiae, claim that an area of nearly 350 square miles on the tip of the northern Lower Peninsula—including Harbor Springs, Petoskey, Garden Island, High Island, and parts of Charlevoix, Charlevoix County, and Emmet County—is tribal land.
Treaty With Ottowas and Chippewas, July 31, 1855, 11 Stat 621 (also known as the Treaty of Detroit).
To be sure, the case presents complex questions of federal law and treaty interpretation with grave implications for tribal and state sovereignty. And the federal courts that have considered this question have rejected the Tribe's position. But this area is not exclusively within the purview of federal courts, and the jurisdiction of our own state courts over Michigan citizens who are also tribal citizens is axiomatically within our wheelhouse. See People v Gillam , 479 Mich. 253, 261, 734 N.W.2d 585 (2007).
The Tribe (amicus here) filed a separate federal lawsuit against the state. The federal district court ruled that there was no reservation (not reaching the disestablishment question), the United States Court of Appeals for the Sixth Circuit affirmed, and the Supreme Court of the United States denied certiorari. Little Traverse Bay Band of Odawa Indians v Whitmer , 398 F Supp 3d 201 (WD Mich, 2019), aff'd 998 F.3d 269 (CA 6, 2021), cert den 595 U.S. ––––; 142 S Ct 1206, 212 L.Ed.2d 215 (2022). While certainly persuasive, decisions of the lower federal courts are not binding on this Court, Abela v Gen Motors Corp , 469 Mich. 603, 606-607, 677 N.W.2d 325 (2004), and a denial of certiorari is not a binding decision on the merits, see Huber v New Jersey Dep't of Environmental Protection , 562 U.S. 1302, 1302, 131 S.Ct. 1308, 179 L.Ed.2d 643 (2011) (Alito, J., concurring).
Other state courts have decided tribal boundary issues as well. In State v Perank , 858 P.2d 927 (Utah, 1992), the Utah Supreme Court considered questions of the establishment of the Uintah-Ouray Reservation, despite parallel federal litigation in the United States Court of Appeals for the Tenth Circuit. See Ute Indian Tribe v Utah , 773 F.2d 1087 (CA 10, 1985) (en banc) (1986). The Utah Supreme Court held that the reservation had been disestablished, disagreeing with the Tenth Circuit decision, which had held that neither the Uintah-Ouray Reservation nor the adjacent Uncompahgre Reservation had been disestablished or diminished. See also Martinez v State , 502 P.3d 1115, 1117 (Okla Crim App, 2021) (considering, postconviction, whether a crime had been committed on the Kiowa Comanche Apache Reservation and whether Congress had disestablished the reservation); State v Lawhorn , 499 P.3d 777, 778 (Okla Crim App, 2021) (considering whether the Quapaw Nation Reservation is Indian Country); Lavallie v Jay , 963 N.W.2d 287 (ND, 2021) (holding that the state court lacked subject-matter jurisdiction over a civil action regarding a vehicular crash because the crash had occurred on off-reservation land held in trust for the Turtle Mountain Band of Chippewa Indians); Martin v State , 969 N.W.2d 361, 362 (Minn, 2022) (rejecting a tribal jurisdiction claim because, unlike Oklahoma, Minnesota is one of the states granted jurisdiction to prosecute offenses by or against Indians on Indian country under 18 USC 1162(a) ); Wolfe v Payne , 2021 Ark. 87, 622 S.W.3d 625 (Ark, 2021) (rejecting a tribal jurisdiction claim because crimes were committed off-reservation); State v Twist , unpublished per curiam opinion of the Arizona Court of Appeals, issued November 30, 2021 (Docket No. 1 CA-CR 21-0215 PRPC), 2021 WL 5575206 (rejecting a tribal jurisdiction claim because reasonable evidence supported a finding that the crime occurred outside Indian country).
Resolution of the jurisdiction issue has significant implications for the state's criminal jurisprudence. If the area in question is a reservation, then, absent express jurisdiction granted by Congress, it is generally the Tribe, and not the state, that can properly exercise criminal jurisdiction over all Indians committing crimes therein. See 25 USC 1301(2) ; McGirt , 591 U.S. ––––; 140 S. Ct. at 2459 (noting that state courts generally have no jurisdiction to try Indians for conduct committed in "Indian Country"). In addition, if the area in question is a reservation, the Tribe could exercise limited criminal jurisdiction, known as "special domestic violence criminal jurisdiction," over non-Indians who commit specifically defined acts of domestic violence against Indians. 25 USC 1304. Whether and when tribes may prosecute crimes committed by and against their tribal citizens is fundamental to the state's recognition of tribes as equal sovereigns.
And should this Court conclude that there was a reservation, four other federally recognized successor tribes to the signatories of the Treaty of 1855 may have similar claims. The treaty also addressed lands near, for example, Cheboygan and Sault Ste. Marie.
This case also has implications for contexts beyond criminal jurisdiction. Chief among them, and vitally important to the relationship between our state and tribal courts, is the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq. ICWA provides that tribal courts maintain exclusive jurisdiction over Indian children domiciled or residing in a reservation in the context of matters such as the termination of parental rights, adoption, and foster-care placement. 25 USC 1901 through 1963 ; 25 USC § 1911(a) and (b). Actions commenced in state court must be transferred to tribal court, absent good cause. 25 USC 1911(b). The existence and extent of reservation boundaries therefore affect the lives of tribal children and their families. In addition, the boundaries of a reservation affect tribal governments’ ability to enact and enforce laws regarding land use, taxation of Indians and non-Indians, zoning, administrative and regulatory matters, and economic issues, among others. Miller & Dolan, The Indian Law Bombshell: McGirt v. Oklahoma, 101 BU L Rev 2049, 2093 (2021). Tribes may also work with the Environmental Protection Agency to establish environmental standards that may be applied to persons within the entire reservation area, regardless of tribal membership. Id. at 2093, 2096. Other federal laws concerning the Tribe's cultural and spiritual heritage, such as the Native American Graves Protection and Repatriation Act (NAGPRA), the Archaeological Resources Protection Act, and the National Historic Preservation Act, are also implicated. Id. at 2095-2096. The consequences for the Tribe and its members are great. No less important are the perspectives of the state and the 18 municipalities and groups who intervened in the federal case (and appear together as amici here)—further stressing the significance of the case to the state's jurisprudence.
The NAGPRA, for example, provides protections for tribal ancestor remains, funerary items, and sacred objects located on federal and tribal lands. See 25 USC 3001 et seq.
See Little Traverse Bay Bands of Odawa Indians, Tribal Chairperson's Statement Regarding Reservation Litigation (March 8, 2022) < https://ltbbodawa-nsn.gov/archive/tribal-chairpersons-statement-regarding-reservation-litigation/> (accessed September 20, 2022) [https://perma.cc/X4QB-QX5P] (explaining that gaining legal affirmation of the reservation boundaries in the Treaty of 1855 would "honor our history and increase our services to our citizens, and protection of our children, elders, lands and waters").
As a result of the McGirt decision, which recognized the continued existence of the Muscogee (Creek) Reservation in Oklahoma, the tribes, state, and localities in Oklahoma will have to grapple with many far-reaching and important issues in the years and decades to come. The stakes are equally high for our citizens, with frictions likely to arise in light of the federal courts’ rejection of the Tribe's claims as well as this Court's refusal to meaningfully review the jurisdictional issue. While I do not take a position on the merits, I recognize that agreeing with defendant and the Tribe would necessarily create a conflict with the Sixth Circuit decision. But resolving conflicts between the federal appellate courts and state courts is the role of the Supreme Court of the United States, see Sup Ct Rule 10, and that mere possibility should not scare us off—especially when what is at issue is no less than whether our nation has kept its promises of the Tribe. Because I believe that denying this application, without further consideration, abdicates our responsibility to decide an issue of critical importance to our state, I dissent.
In its petition for certiorari, the Tribe argued that the Sixth Circuit's decision conflicts with precedent from the United States Supreme Court and other circuits, ignores the text of the treaty that specifically referenced the disputed lands as "reservations" and described them as " ‘reserved ... for the band[s],’ " and impermissibly requires evidence of active federal superintendence of the land to establish a reservation. Petition for Writ of Certiorari, Little Traverse Bay Bands of Odawa Indians v Whitmer , Docket No. 21-769 (CA 6, November 19, 2021), pp. 16-32.