Judge Paul L. Maloney entered the courtroom when the clock on the wall read 9:08. He strode to the bench and settled into his chair. Behind him, mounted on the wood paneled wall, was a large round seal of the United States Federal Court Western District of Michigan. The hearing was off to a late start, but only by eight minutes. And, given that everyone was here to try to settle a dispute that dates back more than a century and a half, those eight minutes didn’t seem like much.
In front of Maloney in the courtroom in Kalamazoo sat more than a dozen attorneys. Maloney called out each of them by name for the record.
“That took longer than usual,” he joked at the end.
The case has been working its way through Maloney’s court in the Western District of Michigan for more than two years already. It was filed in 2015 by the Little Traverse Bay Bands of Odawa Indians against the state of Michigan. The dispute goes back to the original treaties signed by the federal government to acquire land in northern Michigan. The tribe argues those treaties guaranteed that 337 square miles of land along Lake Michigan would be set aside as a reservation for the tribe. That reservation, the tribe claims, was never removed, and still exists to this day.
The land covers all of what are now the towns of Petoskey and Harbor Springs, plus part of Charlevoix. It wasn’t long before those cities, and the counties they’re a part of, joined the case. So did the Emmet County Lakeshore Association, and several small townships, which is why, on Tuesday, Judge Maloney had to read off the names of so many attorneys.
The case has become mind-bendingly complex, with over 500 entries already on the docket, including thousands of pages of arguments, historical references and expert testimony.
On Tuesday, Maloney heard arguments for two new motions filed earlier this year, both of which came with hundreds of pages of supporting material to consider.
The first motion would have the case thrown out entirely.
Attorney David Otis, who represents the cities of Petoskey, Charlevoix and Harbor Springs, along with both Emmet and Charlevoix counties, argued the tribe should have brought its argument more than 50 years ago to the Indian Claims Commission, which was set up by the federal government to hear claims made by Native American tribes.
“This case should be dismissed,” Otis argued.
"It's not even a case of apples and oranges. It's essentially a case of apples and chickens."
Jessica Intermill, an attorney for the Little Traverse Bay Bands, responded. The tribe doesn’t have a dispute with the federal government, she argued. The tribe’s claim, Intermill said, is over recognition from the state of Michigan. So Otis’ argument over the Indian Claims Commission doesn’t apply.
“It’s not even a case of apples and oranges,” she told Judge Maloney. “It’s essentially a case of apples and chickens.”
Maloney listened to the arguments and said he’d write out his decision later.
“I’ll issue an opinion on this as soon as I can,” he said.
Then it was on to the next motion in the case, which is about how to interpret an act of Congress from 1994 that reaffirmed the Little Traverse Bay Bands’ status as a federally-recognized tribe.
Once again, the attorneys from all sides made their arguments, Maloney heard them out and promised a written ruling sometime in the future.
The arguments and proceedings of each piece of the case have been complex, and occasionally hard to follow, but the implications of the case could be huge.
Members of the tribe argue if Maloney rules in their favor and the case holds, it will ensure the Little Traverse Bay Bands can exercise its rights as a government agency on the land again. That could have consequences for how certain legal issues play out in the area, especially cases involving child welfare.
If the tribe wins its case, it won’t own the 337 square miles of land. Privately-held lots within the boundaries won’t change hands. But the tribe would have jurisdiction as a government agency.
The Emmett County Lakeshore Association claims that could have a huge impact on the region, affecting future zoning decisions and tax collection.
If the case doesn’t get thrown out based on the latest motion - and Maloney gave no indication he was about to throw out the case - there’s no indication yet how long it might go. There hasn’t even been a trial yet. And if the case goes all the way to trial, Judge Maloney says it could be 2020 before the trial begins.
On Tuesday, attorneys for the Little Traverse Bay Bands suggested the parties might be able to resolve their issues with the help of a mediator.
Jaclyn Shoshana Levine, an attorney who represents the state of Michigan in the case, argued that it’s still too early in the case for mediation. And besides, she noted, the client she represents is about to change. The state of Michigan’s side of the case is handled through the attorney general’s office. And, in about a month, Michigan will have a new attorney general, along with, potentially, a new legal strategy for the case.
It’s just one more possible complication in a case that’s already full of them.
