Traverse City Record-Eagle

September 22, 2013

Benishek legislation could prompt tribal lawsuit

BY GLENN PUIT gpuit@record-eagle.com
Traverse City Record-Eagle

---- — TRAVERSE CITY — U.S. Rep. Dan Benishek introduced legislation that would clear the way for the Grand Traverse Band of Ottawa and Chippewa Indians to sue the federal government for northern Michigan lands that tribal officials contend was illegally taken from members in the 1800s.

The litigation could cost federal taxpayers tens of millions of dollars to pay damages to the tribe for roughly 87,000 acres in Leelanau and Antrim counties.

Tribal attorney John Petoskey said the tribe does not seek to reclaim land from current owners. But tribal officials strongly believe their members deserve to be made whole for what Petoskey described as illegal land transactions that violated an 1855 treaty.

“It was sold illegally by (federal) Indian agents to non-Indians,” Petoskey said.

On Sept. 9 Benishek, a second-term Republican who represents much of northern Michigan and the Upper Peninsula in Congress, introduced a bill and resolution that is necessary to allow the tribe to file a claim.

The Record-Eagle contacted Benishek’s office for an interview, and his spokesman Kyle Bonini initially asked how the newspaper became aware of the legislation. Bonini subsequently said Benishek was unavailable because of a busy schedule.

The tribe outlined its intent to sue the United States in a document that seeks to answer questions about its planned claim. The tribe said in various treaties dating to the 1800s, Indian tribes, including the Grand Traverse Band, agreed to cede vast amounts of their lands to the United States in return for a federal promise that smaller portions of land would be reserved as homelands for exclusive use by ceding tribes.

“Despite those treaty protections, many ‘reservation’ lands were sold to non-Indians in violation of the treaty obligations,” the tribe said in the document.

Over a 40-year period, the tribe said it lost virtually all of the 87,000 acres in question. The tribe said the band intends to seek a money damage claim based on the Fifth Amendment protection against the taking of private property without compensation.

Petoskey said protection of private property rights is “a strong Republican value” and that the land was taken from the tribe.

Benishek introduced H.R. 3068 in the House of Representatives. The bill states the Secretary of the Treasury “shall pay, out of money not otherwise appropriated, to members of the Grand Traverse Band of Ottawa and Chippewa Indians of Michigan,” an unspecified amount.

An ancillary House Resolution 335 introduced by Benishek is a resolution to refer H.R. 3068 to the United States Court of Federal Claims “for a determination as to whether the tribe and its members have Indian trust-related legal or equitable claims.”

The tribe said Congress uses a legislative process in which it refers such claims to the U.S. Court of Federal Claims. One or more members of the Michigan delegation have to introduce a congressional bill of reference and seek its approval by the House or Senate.

The U.S. Court of Federal Claims then would review law and facts make a recommendation on what action Congress should take, including possible compensation.

Compensation would be due only if the court finds the tribe proved its case and Congress then acts upon the court’s recommendation, according to the tribe.