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August 29, 1980

Cecil D. ANDRUS, et al., Defendants

The opinion of the court was delivered by: FLANNERY


This case calls for review of action taken by the Secretary of Interior (Secretary) under the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. §§ 461-479. Section 5 of the IRA, 25 U.S.C. § 465, authorizes the Secretary to acquire lands and hold them in trust for American Indians. *fn1" That same section provides that such lands are exempt from local taxation, *fn2" and Chapter 53 of Title 18, United States Code, provides for federal criminal jurisdiction over such lands. *fn3" In the case at hand, the plaintiff municipality in the state of Michigan seeks review of the Secretary's decision in March, 1977, to exercise his powers under the IRA to accept a 76-acre tract within the plaintiff's boundaries. The Secretary is presently holding the land in trust for the intervening defendant, the Chippewa Indians of Sault Ste. Marie (Tribe), and the Tribe plans to construct a 65-unit federal housing project thereon. *fn4" Apparently the plaintiff's main concern is that this decision by the Secretary will result in a loss of criminal and civil jurisdiction over the land, although tax revenues will also be affected. *fn5"

 This case presents two basic issues: (1) whether the land was properly taken in trust, and (2) if so, whether the plaintiff nevertheless retains criminal and regulatory jurisdiction over the land. Both sides have moved for summary judgment on all issues. For the reasons below, the court is persuaded that the land was properly taken in trust, that the issue of criminal jurisdiction is not ripe for decision, and that the plaintiff may not exercise regulatory jurisdiction over the land.


 The plaintiff makes four basic arguments:

 I. The Tribe was not officially "recognized" as such in 1934, the year of the passage of the IRA, and therefore does not qualify as a "tribe" for which land could be taken in trust under the IRA.

 II. The drafters of the IRA intended that land should be taken in trust only for absolutely "landless" Indians, and because the Tribe here was not landless, the defendants acted improperly.

 III. The plaintiff received no notice or opportunity to comment on the Secretary's decision, so because the decision will deprive the plaintiff of valuable property interests, it denies the plaintiff due process of law.

 IV. Even if the land was properly accepted in trust, the land is nevertheless subject to the plaintiff's criminal and regulatory jurisdiction.

 I. The plaintiff contends that the Chippewas do not constitute a "tribe" within the meaning of section 19 of the IRA, 25 U.S.C. § 479, which defines "tribe" as "any Indian tribe, organized band, pueblo, or the Indians residing on one reservation." Section 19 defines "Indian" to include "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendents of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation...."

 Assuming, as the plaintiff argues, that in order to benefit from the IRA a tribe must have been federally "recognized" in 1934, *fn6" the question is whether the Chippewas were so recognized. According to the plaintiff, the first decision to accord recognition to the Chippewas as eligible for benefits under the IRA took place in a Memorandum of the Commissioner of Indian Affairs dated September 7, 1972. Conceding that the Memorandum refers to the Chippewas as an "historic band," the plaintiff argues that the absence in the Memorandum of any reference to the absolute requirement of federal recognition in 1934 reveals that the Secretary misconstrued his authority under the IRA. The plaintiff adds that in any event the Secretary could not reasonably have determined that the Chippewas were a tribe within the meaning of the IRA. In support of this latter point it cites a second document, a 1937 Memorandum of the Acting Solicitor to the Commissioner of Indian Affairs, which indicates that the Chippewas should not be recognized for purposes of the IRA because the Chippewas were dissolved officially by a treaty of July 31, 1855, with the United States.

 The court is persuaded that these arguments are amply met by opposing arguments of the defendants. First, although the question of whether some groups qualified as Indian tribes for purposes of IRA benefits might have been unclear in 1934, that fact does not preclude the Secretary from subsequently determining that a given tribe deserved recognition in 1934. The 1972 Memorandum constitutes just such subsequent recognition. To hold otherwise would be to bind the government by its earlier errors or omissions. Moreover, the apparent purpose of limiting IRA benefits to tribes recognized in 1934 was to prevent new groups from coming together solely to exploit the IRA, and there is no evidence or allegation that the Chippewas have engaged in such a scheme.

 As for the plaintiff's argument that the 1972 Memorandum itself was clearly erroneous and that the treaty of July 31, 1855 dissolved the Tribe, it appears that what the treaty dissolved was an artificial amalgam of the Ottawas and the Chippewas, not the Chippewas themselves. United States v. State of Michigan, 471 F. Supp. 192, 264 (W.D.Mich.1979), remanded to consider the preemptive effects of subsequently passed federal regulations, No. 79-1414 (6th Cir. 1979) (per curiam). Moreover, there were two separate treaties of 1855, one of July 31 and one of August 2. Id. at 280. The July treaty is the one on which the plaintiff relies, yet the very existence of the later treaty indicates that the Tribe was federally recognized after the so-called dissolution treaty of July.

 The defendants also cite United States v. State of Michigan, supra, in support of a claim of collateral estoppel on the issue of tribal recognition. Although the preceding determination removes the necessity for resolution of this argument, the likelihood of appeal renders it appropriate for the court to address the issues raised. United States v. Michigan involved fishing rights asserted by the Chippewas against Michigan officials, and the state argued that the Chippewas had no aboriginal fishing rights because they had voluntarily disbanded pursuant to the treaty of July, 1855. The district court ruled against the state, saying, "Ancestors and members of the plaintiff tribes have continuously exercised Indian fishing rights since the 1836 Treaty without abandonment .... (T)he Sault Ste. Marie Tribe of Chippewa Indians are Indian tribes which are political successors in interest to the Indians who were signatory to the Treaty of March 28, 1836...." Id. at 249. The defendants argue that because the plaintiff in this case was in privity with the state in United States v. Michigan, and because the very issue of whether the Chippewas were dissolved as a tribe in 1855 was decided in that case, the plaintiff here is collaterally estopped from raising that issue again.

 The court is persuaded that that case constitutes significant support for the defendants' position, but it is not determinative under the doctrine of collateral estoppel. Although the issues decided there are manifestly related to those of the present action, they are not identical so as to warrant the defendants' claim of collateral estoppel. That the Chippewas hold certain fishing rights under the 1836 treaty with the United States does not necessarily mean they constituted a federally recognized tribe within the meaning of the IRA in 1934. On the other hand, that they were found to be the tribal successors of the Indians who were signatory to ...

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