Little Traverse Bay Bands of Odawa Indians v. Snyder

BRIEF in support of MOTION to compel Emmet County Lakeshore Association 145

W.D. Mich.March 8, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN – SOUTHERN DIVISION LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS, a federally recognized Indian tribe, Plaintiff, v. RICK SNYDER, Governor of the State of Michigan, et al., Defendants. Court File No.15-cv-850 Hon. Paul L. Maloney ORAL ARGUMENT REQUESTED Brief in Support of the Tribe’s Motion to Compel Discovery from the Emmet County Lakeshore Association William A. Szotkowski Jessica Intermill Andrew Adams III Peter J. Rademacher Hogen Adams PLLC 1935 W. County Rd. B2, Ste. 460 St. Paul, MN 55113 Phone: (651) 842-9100 E-mail: bszotkowski@hogenadams.com jintermill@hogenadams.com aadams@hogenadams.com prademacher@hogenadams.com James A. Bransky 9393 Lake Leelanau Dr. Traverse City, MI 49684 Phone: (231) 946-5241 E-mail: jbransky@chartermi.net Donna Budnick 7500 Odawa Cir. Harbor Springs, MI 49740 Phone: (231) 242-1424 E-mail: dbudnick@ltbbodawa-nsn.gov Counsel for Plaintiff Little Traverse Bay Bands of Odawa Indians Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1774 Page 1 of 11 1 In response to the Tribe’s discovery, the private Emmet County Lakeshore Association and Protection of Rights Alliance (collectively, the “Associations”) consistently serve timely answers to discovery, but just as consistently lodge meritless objections that delay their discovery responses and seek to avoid answering the Tribe’s discovery altogether. Relevant here, the Lakeshore Association relies on discovery objections to try to transform what it itself called an “AFFIRMATIVE DEFENSE[,]” Ass’ns Answer, PageID.677 (emphasis in original), into a negative defense that the Tribe must prove. Neither the facts nor the law support that result. Background I. The Tribe’s Claim The Tribe’s requested relief was straightforward, asking the Court to “declar[e] that the Little Traverse Reservation as established by the Executive Order of 1855 and the1855 Treaty of Detroit exists today, and that all lands within the Reservation are Indian country under federal law.” Compl., PageID.17 (emphasis added). That request closely tracks federal Indian law, which has long held that “when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.’” DeCoteau v. Dist. Cty. Court for Tenth Judicial Dist., 420 U.S. 425, 444 (1975) (quoting United States v. Celestine, 215 U.S. 278 (1909)) (emphasis added). The Tribe’s Complaint detailed the exterior boundaries of the Reservation: 32. The 1855 Treaty sets forth the reservations by surveyed townships. It states, in relevant part: In view of the existing condition of the Ottowas and Chippewas, and of their legal and equitable claims against the United States, it is agreed between the contracting parties as follows: Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1775 Page 2 of 11 2 ARTICLE 1. The United States will withdraw from sale for the benefit of said Indians as hereinafter provided, all the unsold public lands within the State of Michigan embraced in the following descriptions, to wit: . . . Third. For the Beaver Island Band—High Island, and Garden Island, in Lake Michigan, being fractional townships 38 and 39 north, range 11 west—40 north, range 10 west, and in part 39 north, range 9 and 10 west. Fourth. For the Cross Village, Middle Village, L’Arbrechroche and Bear Creek bands, and such Bay du Noc and Beaver Island Indians as may prefer to live with them, townships 34 to 39, inclusive, north, range 5 west—townships 34 to 38, inclusive, north range 6 west—townships 34, 36, and 37 north, range 7 west, and all that part of township 34 north, range 8 west, lying north of Pine River. . . . Complaint, PageID.7-8. In 1856, the Senate added certain amendments before ratifying the 1855 Treaty. See PageID.1743-1746 The Tribe’s Complaint reflects the extent to which it alleges the amendments affected the Reservation boundary. Compare PageID.1743 (“Article 1. At the end of the ‘Fourth’ clause, stroke out the words ‘township 84 north, range 8 west,’ and insert the words: ‘all that part of township 84 north, range 8 west, lying north of Pine River.’”) with Compl., PageID.7 at ¶ 33 (describing the Reservation as including “all that part of township 34 north, range 8 west, lying north of Pine River”). The Tribe alleges—and will prove at trial—that the entire area within the sections described in ¶ 33 of its Complaint is an Indian reservation. See Compl., PageID.7, 17. II. The Lakeshore Association’s Answer and Affirmative Defense The Associations plainly dispute the Tribe’s claim. Their Answer lodged thorough denials of the Tribe’s allegations, and their response to the Tribe’s demand for relief read: ANSWER: “The allegations of Plaintiff’s Demand for Relief set forth conclusions of law to which no response is required. To the extent a response is required, Proposed Intervenors deny the allegations and deny that Plaintiff is entitled to relief requested. Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1776 Page 3 of 11 3 WHEREFORE, Proposed Intervenors state that Plaintiff’s complaint should be dismissed with prejudice and that all of Plaintiff’s requested relief should be denied. Ass’n Answer, PageID.677. But the Associations also lodged a series of affirmative defenses, including the Paragraph 4: “[e]ven if Plaintiff at one time had a reservation under the 1855 Treaty, such reservation consisted only of lands that were not exempted under the terms of 1856 amendments to the 1855 Treaty, and ceased to exist long ago, through the operation of law.” Ass’ns Answer, PageID.678. III. The Discovery The broad Paragraph 4 affirmative defense implicates every form of alienation within the Reservation from 1855 to present. The Tribe interposed two interrogatories tailored to determine the Lakeshore Association’s contentions concerning only a portion of the affirmative defense: Interrogatory No. 13: Identify every parcel of land that You contend in paragraph 4 of Your Affirmative Defenses was “exempted under the terms of 1856 amendments to the 1855 Treaty.” Interrogatory No. 14: Describe in detail all facts You believe support Your answer to Interrogatory No. 13. See PageID.1710-1711. The Lakeshore Association initially relied on boilerplate objections to refuse to respond to Interrogatory No. 13 entirely. Id. It answered Interrogatory No. 14: “See response to interrogatory #13.” PageID.1711. Surprised by the Lakeshore Association’s response, the Tribe quickly tried to resolve the dispute, emphasizing that the discovery was directed squarely at the Lakeshore Association’s contentions concerning its own affirmative defense. PageID.1721-1723. In response, the Lakeshore Association added legal argumentation to its objections. Its revised answer to Interrogatory No. 13 stated: Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1777 Page 4 of 11 4 ANSWER: ECLA objects to this interrogatory on the basis that it is overly broad, unduly burdensome, not limited in scope, and designed to harass ECLA. The information sought is not proportional to the needs of the case, and the history of initial land transactions within the Reservation (as that term is defined in Plaintiff’s Interrogatories and without admitting that such exists) is equally available to Plaintiff. , as defined by Plaintiff, is equally available to Plaintiff by way of public records or Plaintiff’s own investigation. ECLA further objects on the basis that it is under no duty to define the Reservation boundaries. It is Plaintiff who seeks an order from this Court declaring Reservation boundaries and issuing an injunction. Thus, Plaintiff bears the burden of proof to show that the entirety of the land within what Plaintiff contends is its “Reservation” is in fact an extant Indian reservation notwithstanding Treaty language that exempted several categories of land from withdrawal under the Treaty. In further response, ECLA states that the amendments to the 1855 Treaty describe a portion of “township 34 north, range 8 west” and other categories of lands (lands occupied by actual settlers, lands occupied by persons entitled to preemption, lands purchased by Indians pursuant to the Graduation Act) which are excluded from the lands Plaintiff has described as a Reservation. (See that portion of the 1855 Treaty previously produced as ECLA000013-000015). Notwithstanding the foregoing, to the extent that ECLA develops relevant and responsive information, ECLA will present such information either at that time or through expert reports in accordance with the timelines of the Case Management Order governing this proceeding. PageID.1717-1718 (track changes added). Its answer to Interrogatory No. 14 remained: “See response to interrogatory #13.” PageID.1718 Argument I. The Lakeshore Association must provide evidence of its affirmative defense. To avoid discovery, the Lakeshore Association seeks to recast its affirmative defense as a “negative defense,” shifting the burden of proof to the Tribe. Certainly, the Tribe must—and will—prove the elements of its reservation-boundary claim. But no twist of law or logic requires the Tribe to disprove an affirmative defense that the Association offers no evidence to support. In its February 28 letter, the Lakeshore Association relies on Schaffer ex rel. Schaffer v. Weast to argue that the Tribe must prove the Reservation’s status parcel by parcel. PageID.1725- Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1778 Page 5 of 11 5 1728 (citing 546 U.S. 49 (2005)). Hardly. That case states the general rule that a claimant must prove his own claims (though it does not say by what method of evidence) and continues that “[t]he ordinary default rule,” that the party seeking relief carries the burden of persuasion “of course, admits exceptions. For example, the burden of persuasion as to certain elements of a plaintiff’s claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions.” Schaffer, 546 U.S. at 57. Moreover, that court was careful to distinguish the “burden of production” at issue here, “i.e. which party bears the obligation to come forward with the evidence” from the “‘burden of persuasion,’ i.e., which party loses if the evidence is closely balanced,” expressly limiting its analysis to the latter. Id. at 55. Schaffer not only refused to reach the burden-of-production question at issue here; it expressly recognized that defendants like the Lakeshore Association must prove their affirmative defenses. The Lakeshore Association was right the first time: it lodged an affirmative defense. A “negative defense” is an “outright denial of the plaintiff’s allegations without additional facts pleaded by way of avoidance.” Black’s Law Dictionary 482 (9th ed. 2009). In contrast, an “affirmative defense . . . admits the allegations in the complaint, but seeks to avoid liability, in whole or in part, by new allegations of excuse, justification, or other negating matter.” Riemer v. Chase Bank USA, N.A., 274 F.R.D. 637 (N.D. Ill. 2011)). A negative defense answers the allegations in the complaint, “no;” an affirmative defense answers the allegations in the complaint, “yes, but.” Here, the pleadings could not be more plain. The Associations answered the Tribe’s claim and demand for relief with a negative defense—an outright denial without additional facts. Ass’n Answer, PageID.677. But when that document continued, “[e]ven if Plaintiff at one time had a reservation under the 1855 Treaty, such reservation consisted only of lands that were not Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1779 Page 6 of 11 6 exempted under the terms of 1856 amendments to the 1855 Treaty,” Ass’ns Answer, PageID.678 (emphasis added), the Associations admitted the Tribe’s allegations and sought to avoid liability, in part, through new allegations. They lodged an affirmative defense. And as a case the Lakeshore Association relies on makes clear, where “the defense will force the plaintiff to perform additional discovery or develop new legal theories, these considerations will militate heavily in favor of terming the defense affirmative.” Ford Motor Co. v. Transport Indem., Co., 795 F.2d 538, 546 (6th Cir. 1986). This motion concerns the very “additional discovery” that Ford Motor Co. saw coming. II. A reservation-boundary claim does not require parcel-by-parcel proof; a diminishment defense does. Implicit in the Lakeshore Association’s objections is the assumption that federal law requires a reservation-boundary plaintiff must prove the reservation status of every plot within the reservation, parcel by parcel. It does not. A plaintiff who claims that an Indian reservation exists must prove three things: (1) that a defined area (2) has been set aside (3) for a tribe’s use under federal superintendence. E.g., Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991) (to determine whether land is Indian country, “we ask whether the area has been validly set part for the use of the Indians as such, under the superintendence of the Government.” (quotation omitted) (emphasis added)); U.S. v. McGowan, 302 U.S. 535, 539 (1938) (“‘In the present case, the original reservation was Indian country simply because it had been validly set apart for the use of the Indians as such, under the superintendence of the government.’” (quoting U.S. v. Pelican, 232 U.S. 442, 449 (1914))). Importantly, in this analysis, treaty rights are interpreted broadly in favor of Indian negotiators’ probable understanding (not federal understanding). E.g., United States v. Winans, Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1780 Page 7 of 11 7 198 U.S. 371, 380 (1905) (“We will construe a treaty with the Indians as that unlettered people understood it[.]” (quotation omitted)); U.S. v. Michigan, 471 F. Supp. 192, 216 (W.D. Mich. 1979). Demonstrating that an “area” has been set apart, Oklahoma Tax Comm’n, 498 U.S. at 511; John, 437 U.S. at 648-49; McGowan, 302 U.S. at 539; Pelican, 232 U.S. at 449 rather than a collection of individual parcels (that had not yet been surveyed at the treaty time) is consistent with this longstanding canon of Indian law. Here, the Tribe will prove its claim—including that the 1856 Amendments changed the boundary concerning the Pine River, but not in any other respect—through expert historical, ethnohistorical, and linguistic evidence. But it need not prove parcel-by-parcel status because it does not make a parcel-by-parcel claim. In contrast, where, as here, a defendant alleges parcel-level boundary diminishment, “a title search may be necessary to determine which lands” are Indian Country. Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 114 F.3d 1513, 1530 (10th Cir. 1997). See also Status Report, Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, Case No. 2:75-cv- 00408 (D. Utah March 4, 2016), PageID.1755 (“Defendants’ counsel provided Plaintiff’s counsel with maps identifying “Indian Country” and “non-Indian Country” parcels). That a reservation-boundary claim like the one the Tribe asserts does not require parcel-by-parcel proof of title—but a diminishment defense does—is well demonstrated by Yankton Sioux Tribe v. Gaffey. 188 F.3d 1010 (8th Cir. 1999). In lower-court proceedings, “[s]ince both sides . . . followed an all or nothing strategy (the State arguing disestablishment and the Tribe claiming maintenance of the 1858 boundaries), neither side spent much time developing the record on the specifics of this trust land.”). Id. at 1030. The tribe succeed on its claim below without parcel- level evidence. That evidence only became necessary when the Eighth Circuit reversed and remanded, seizing on the alternative affirmative defense that the reservation was diminished Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1781 Page 8 of 11 8 (with certain parcels removed from the reservation), not disestablished (with all parcels’ reservation status removed). Id. And that defense is the Associations’ to prove. Solem v. Bartlett, 465 U.S. 463, 464 (1984) (party alleging diminishment did not “carry the burden” of defense). III. The Lakeshore Association must answer the Tribe’s Interrogatories No. 13 and 14 without objection. Because the Tribe does not need parcel-level evidence to prove the creation of the reservation, but the Lakeshore Association does need parcel-level evidence to prove its treaty- exception affirmative defense, the Tribe lodged discovery directed at the defense. It asked a contention interrogatory—a tool “most useful in narrowing and sharpening the issues, which is a major purpose of discovery.” Notes of Advisory Committee on Rules – 1970 Amendment, comment on Rule 33(b), renumbered as 33(a)(2). Patently, this information is not available to the Tribe except through discovery. No Freedom of Information Act request or trip to the National Archives can answer what only the Lakeshore Association knows: which parcels it contends fall within these categories and why. Courts sometimes delay title research until after determining whether a diminishment defense lies. But in this case, there is strong evidence that no parcels fall within certain of the categories identified by the Lakeshore Association. For example, the Lakeshore Association’s answer to Interrogatory No. 13 claims that “a portion of ‘township 34 north, range 8 west’” was “excluded from the lands Plaintiff has described as a Reservation.” PageID.1718. But as the Tribe pointed out to the Lakeshore Association, PageID.1722 n.2, its Complaint already excludes the portion of that township called out in the 1856 Amendments. Compare PageID.1743 (“Article 1. At the end of the ‘Fourth’ clause, stroke out the words ‘township 84 north, range 8 west,’ and insert the words: ‘all that part of township 84 north, range 8 west, lying north of Pine Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1782 Page 9 of 11 9 River.’”) with Compl., PageID.7 at ¶ 33 (describing the Reservation as including “all that part of township 34 north, range 8 west, lying north of Pine River”). The Lakeshore Association must identify what, if any, other portion it believes is excluded from the Reservation. Similarly, the Lakeshore Association claims that “lands purchased by Indians pursuant to the Graduation Act” are “excluded” from the Reservation. PageID.1718. But there were very few Indian purchases within the Reservation at all, and the evidence available to the Tribe demonstrates that no Indians purchased land under the Graduation Act. See McClurken Decl., PageID.1747-1753. Thus, even if the 1856 Amendments removed that category of parcels from the Reservation—a point the Tribe disputes—the Amendment has no practical effect because there are no parcels that fit within that category. The parties could litigate the legal meaning of the treaty provisions in the abstract. But if the Lakeshore Association cannot identify any parcels that it contends are “excluded,” there is no reason to burden the parties or this Court with motion practice on the subject. Against this backdrop, the Lakeshore Association’s boilerplate objections cannot prevent discovery. Miller Oil Co. v. Smith Indus., No. 1:88 CV 785, 1990 WL 446502 (W.D. Mich. Dec. 13, 1990), PageID.1763 (“[T]he party opposing discovery must specify the reasons for his opposition; general or conclusory objections based on burdensomeness or irrelevance are not enough.”); Solo v. UPS Co., No. 14-12719, 2017 U.S. Dist. LEXIS 3275 (E.D. Mich. Jan. 10, 2017), PageID.1769 (burden and proportionality objections supported by declaration). The General Land Office has digitized land patents nationwide, including throughout the Reservation; they are searchable online at no cost. See glorecords.blm.gov/search/ (last visited March 6, 2017). And the interrogatories are limited to just one clause of the Associations’ own affirmative defense, so they are only as broad as the Lakeshore Association’s contentions. But Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1783 Page 10 of 11 10 parcel-by-parcels answers—not statistical sampling or descriptive categories—are necessary because, within the historical reality of the Reservation, the “categories” the Lakeshore Association described offer little guidance. The Tribe’s request for parcel-level discovery is proportional because the history of each parcel is different, and only the Lakeshore Association knows what parcels it places at issue, so only this parcel-level information will allow the Tribe— and this Court—to evaluate the affirmative defense. Conclusion The Tribe pled a township-and-range level claim; the Associations pled a parcel-level affirmative defense. No law shifts the Association’s burden of proving their affirmative defense onto the Tribe, and no law requires the Tribe to put forth evidence of the history of every single parcel across the within the 337 square miles Reservation. The Court should compel the Lakeshore Association to respond to Interrogatories No. 13 and 14 without objection because the requested discovery is not only proportional; it is absolutely necessary for effective management of this case. /s/ Jessica Intermill William A. Szotkowski Jessica Intermill Andrew Adams III Peter J. Rademacher Hogen Adams PLLC 1935 W. County Rd. B2, Ste. 460 St. Paul, MN 55113 Phone: (651) 842-9100 E-mail:bszotkowski@hogenadams.com jintermill@hogenadams.com aadams@hogenadams.com prademacher@hogenadams.com Dated: March 8, 2017 James A. Bransky 9393 Lake Leelanau Dr. Traverse City, MI 49684 Phone: (231) 946-5241 E-mail:jbransky@chartermi.net Donna Budnick 7500 Odawa Cir. Harbor Springs, MI 49740 Phone: (231) 242-1424 E-mail:dbudnick@ltbbodawa-nsn.gov Counsel for Plaintiff Little Traverse Bay Bands of Odawa Indians Case 1:15-cv-00850-PLM-PJG ECF No. 147 filed 03/08/17 PageID.1784 Page 11 of 11