This post is about the potential impact of Carcieri on Michigan Indian tribes. I want to emphasize that this case may have significant potential impacts for Michigan tribes. The Grand Traverse Band in particular extensively cooperated with the Tribal Supreme Court Project substantively from the time this case first appeared in the First Circuit; one wouldn’t necessarily know that from the opinion and the pleadings, which are all under the banner of the National Congress of American Indians. NCAI owes GTB a great deal here for the risk it took.
GTB, as a tribe somewhat similarly situated to the Narragansett Tribe, had a great deal to lose by popping their heads up and taking a stand in this case. The Court could have come down with a much harsher bright-line rule. One should realize how this case could have — and may still — be a serious blow to the Grand Traverse Band and other tribes like them.
Here are my thoughts on the potential impact on Michigan Indian Tribes:
Hannahville/BMIC/KBIC/Saginaw Chippewa — These tribes, all federally recognized in 1934, have nothing to fear. The Secretary of Interior considered them “under Federal jurisdiction” in 1934 and held Secretarial elections for them on whether to reorganize under the IRA.
Sault Tribe/Lac Vieux Desert Band — These tribes likely have nothing to fear from Carcieri. While technically these tribes were not federally recognized in 1934, they were part of other tribes, BMIC and KBIC respectively. Perhaps someone will make an argument that since they weren’t recognized in 1934, but I don’t believe it will succeed. But I wouldn’t want to test that theory in the Roberts Court.
Grand Traverse Band/Huron Nottawaseppi Band/Gun Lake Band — All tribes administratively recognized through the BAR process post-1980. These tribes are closest to the Narragansett Tribe in this respect, but all of these tribes are treaty tribes as well. GTB is a signatory to the 1836 and 1855 treaties, and the Potawatomi tribes are signatories to the land cession treaties executed between 1821 and 1833. At least according to the concurring opinions, treaty tribes are in good shape.
LTBB/LRB/Pokagon Band — These tribes also are all treaty tribes, and they have the added benefit of a federal recognition/reaffirmation/restoration statute that authorizes (even mandates) the Secretary to take land into trust for them, in their service areas.
Burt Lake Band — I mention Burt Lake because of their recent foray into Michigan gaming politics, but also because part of their argument for state law gaming is that they are a state recognized tribe, at least as of 1903, according to the Band, which is exactly what the Supreme Court said about the Narragansett Tribe circa 1934. Suddlenly, it’s not so good to be a state-recognized tribe, though for Burt Lake’s purposes, it hardly matters.