H. R. 2322
IN THE HOUSE OF REPRESENTATIVES
June 23, 2011
Mr. Benishek (for himself and Mr. Kildee) introduced the following bill; which was referred to the Committee on Natural Resources
To reaffirm and clarify the Federal relationship of the Burt Lake Band as a distinct federally recognized Indian Tribe, and for other purposes.
This Act may be cited as the
Burt Lake Band of Ottawa and Chippewa
Indians Reaffirmation Act.
Congress finds as follows:
The members of the Burt Lake Band of Ottawa and Chippewa Indians, whose historic name is the Cheboigan (or Cheboygan) Band, are descendants and a political successor to signatories of the 1836 Treaty of Washington and the 1855 Treaty of Detroit. The treaty signatories were twice recognized by the United States, on a government-to-government relationship basis, through the execution and ratification of those treaties.
The 1836 Treaty of Washington provided that
the Cheboigan Band would receive a reservation of 1,000 acres on the Cheboigan,
within its aboriginal territory, for a period of 5 years after ratification of
that treaty but the United States failed to provide that reservation. The 1855
Treaty of Detroit provided that Ottawa and Chippewa Indians could select
individual allotments of land within designated reserves, and 2 townships were
set aside for selection by the
Cheboygan Band in Cheboygan
County. Those members who selected allotments within that area were not awarded
those individual land holdings until 3 years after a special Act of Congress
was passed in 1872.
Between 1845 and 1850 the Band’s members used treaty annuity payments to purchase land for the Band in Burt Township, Cheboygan County, Michigan. That land, called Colonial Point, was placed in trust with the Governor of Michigan on the advice of Federal Indian agents.
During the next 50 years, questions arose regarding the taxability of the property, and the acreage was ultimately sold for back taxes in 1900.
After the Band was forcibly evicted from Colonial Point and its village was burned to the ground by its new owner, John McGinn, the majority of the Band’s families took up residency on nearby Indian Road on lands which other Band members had purchased or received as treaty allotments or homesteads.
In 1911, the
United States filed suit in the United States Federal District Court for
Eastern Michigan seeking to regain possession of the Colonial Point Lands
(United States v. McGinn, Equity No. 94, filed June 11, 1911). In its
complaint, the United States advised the Court that it was suing on behalf of
Cheboygan band of Indians [which] is now and was at all the times
mentioned in this bill of complaint a tribe of indians [sic] under the care,
control, and guardianship of the plaintiff and said band is now and was at all
times mentioned in this bill of complaint recognized by the plaintiff through
its chiefs or head men which it annually elects..
In 1917, the Federal District Court decided the McGinn case against the United States finding that the language in the Colonial Point deeds did not prevent the Colonial Point land from being taxed.
Over the next 20 years, Acting Chief Enos Cabinaw, acting on behalf of the Cheboygan Band, asked the United States to appeal or otherwise rectify the District Court’s decision, but no Federal action was taken. Throughout this period, the United States continued to provide the Band and its members with many of the same Federal services that were being provided to other Indian tribes in Michigan.
The Act of June
18, 1934 (hereafter in this Act referred to as the
Act), authorized and directed the Bureau of Indian Affairs to provide
technical assistance and Federal funds to petitioning tribes to assist them in
reorganizing their governments and improving their economies. Members of the
Cheboigan Band, as well as members of other landless treaty Tribes in Michigan,
submitted petitions to receive that assistance. Similar petitions were also
submitted by 4 Michigan bands that still held communal lands. Possession of a
tribal land base was a prerequisite to the receipt of most of the Federal funds
and services provided for in the Indian Reorganization Act.
While the Indian Reorganization Act directed the Secretary to assist landless bands, like Burt Lake, and authorized Federal funds to acquire land, no Federal funds were appropriated to acquire new tribal lands for any of the landless bands in Michigan. After struggling with this dilemma, the Bureau of Indian Affairs extended the benefits of the Indian Reorganization Act to only those 4 Michigan tribes that had an existing land base on the date of the enactment of the Indian Reorganization Act. Of the Ottawa and Chippewa Tribes who signed the 1836 and 1855 Treaties, only 1 group, the Bay Mills Indian Community, was organized under the Indian Reorganization Act.
The failure of the Bureau of Indian Affairs to grant Indian Reorganization Act benefits to the Cheboigan Band did not terminate the band’s government-to-government relationship with the United States, and Congress has never taken any action to terminate Federal acknowledgment of the Burt Lake Band.
The Bureau of Indian Affairs does not have the legal authority to terminate a tribe that has been acknowledged by an Act of Congress.
Since 1972, the following Michigan tribes that were not organized under the Indian Reorganization Act, have been recognized or reaffirmed as federally recognized Indian tribes:
The Sault Ste. Marie Tribe of Chippewa was reaffirmed by a Memorandum of the Commissioner of Indian Affairs on September 7, 1972.
The Grand Traverse Band of Ottawa and Chippewa Indians was acknowledged by the Assistant Secretary of Indian Affairs on May 27, 1980.
The Little Traverse Bay Bands of Odawa Indian and the Little River Band of Ottawa Indians each had its Federal status reaffirmed by an Act of Congress on September 21, 1994.
The Lac Vieux Desert Band of Lake Superior Chippewa Indians had its Federal status as a separate Indian tribe reaffirmed by an Act of Congress at the request of the Administration on September 8, 1988.
The Pokagon Indian Nation had its Federal status reaffirmed by an Act of Congress on September 21, 1994.
The Huron Potawatomi Nation had its Federal status acknowledged by the Assistant Secretary of Indian Affairs on March 17, 1996.
The Gun Lake Tribe (Match-She-Be-Nash-She-Wish) had its Federal status acknowledged by the Assistant Secretary of Indian Affairs on August 23, 1999.
The Burt Lake Band has been consistently recognized by third parties as a distinct Indian community since well before 1900.
The Burt Lake Band consists of members who are the children, grandchildren, or great grandchildren of Indian persons who resided on or near Colonial Point or Indian Road prior to 1910. The majority of the Band’s adult members grew up on or near Indian Road or had an immediate family member who did. As the result, the Band’s members have maintained very close social and political ties. The Band has its own, well-defined membership criteria, which requires the maintenance of tribal relations.
The Burt Lake Band consists of families who have and continue to provide mutual aid to each other, visit each other regularly, mobilize to assist each other in times of need, practice traditional arts and crafts, gather for Ghost Suppers, decorate the graves of their ancestors, and participate in other traditional tribal ceremonies and events.
Since 1829 the Burt Lake Band’s members have attended and consistently mobilized to maintain the Indian Mission Church of St. Mary’s, first on Colonial Point and later on Indian Road. The Burt Lake Band’s members have also worked together to maintain the Tribe’s 2 Indian cemeteries. They have also dug the graves and buried their relatives in those 2 Indian cemeteries for almost 200 years.
The Burt Lake Band’s members have throughout time made formal and informal decisions for the community. The Burt Lake Band has also organized its own modern tribal government without the assistance of the Bureau of Indian Affairs.
The majority of the Band’s elders have a high degree of Indian blood and continue to speak the Ottawa language when they gather with each other. Before World War II, more than 50 percent of the Burt Lake families were still speaking the traditional language in their homes, and more than 50 percent of those tribal members who were married were married to other Ottawa and Chippewa individuals.
There is no evidence that the Band has willfully abandoned tribal relations and there is no evidence that the Congress has taken any legal action to terminate its government-to-government relations with the Burt Lake Band.
Because the Bureau of Indian Affairs failed to review the Band’s petition for over 20 years, a percentage of the Band’s members enrolled in other Tribes in order to obtain the Federal services, most notably health care and prescription drug assistance, that they were legally entitled to, but denied as members of Burt Lake. This step was often taken on the advice of one or more employees of the Bureau of Indian Affairs. This dual enrollment situation has now created a new problem for the Band’s reaffirmation, because the Bureau of Indian Affairs’ current regulations prohibit it from recognizing a tribe when a part of the tribe’s community is or was enrolled in another federally recognized tribe.
In September 2006, the Assistant Secretary
of Indian Affairs denied the Burt Lake Band’s petition for recognition even
though it found that the Burt Lake Band has been identified as an Indian entity
by scholars, local and State officials, and other tribes, and even though it
found that the members of the Burt Lake Band maintain a strong Indian
community. In its letter denying the Burt Lake Band’s petition, the Bureau of
Indian Affairs stated that
Congress may consider taking legislative
action to recognize petitioners that do not meet the specific requirements of
the acknowledgment regulations but may have merit..
The Burt Lake Band has exhausted its administrative remedies, therefore this Act is both necessary and appropriate.
For purposes of this Act, the following definitions apply:
The term Burt Lake Band means the Burt Lake Band of Ottawa and Chippewa Indians, a continuously existing historical tribe of Indians descending from the Cheboygan band which was included in treaties with the United States in 1836 and 1855 and descending from the Indian Village at Burt Lake in 1900.
The term Indian Reorganization Act means the Act of June 18, 1934 (25 U.S.C. 461 et seq.).
The term OFA means the Office of Federal Acknowledgment, a branch of the United States Department of the Interior’s Bureau of Indian Affairs.
The term Secretary means the Secretary of the Interior.
The Burt Lake Band of Ottawa and Chippewa Indians is hereby reaffirmed as a federally recognized Indian tribe. All laws and regulations of the United States of general application to Indians or nations, tribes, or bands of Indians, including the Indian Reorganization Act, which are inconsistent with any specific provision of this Act shall not be applicable to the Burt Lake Band and its members.
Federal Services and Benefits
Notwithstanding any other provision of law, after the date of the enactment of this Act, the Burt Lake Band and its members shall be eligible for all services and benefits provided by the Federal Government to Indians because of their status as federally recognized Indians without regard to the existence of a reservation or the location of the residence of any member on or near any Indian reservation.
For purposes of the delivery of Federal services to the enrolled members of the Burt Lake Band and to other Indians, all of Cheboygan County Michigan, and any area in the State of Michigan that is outside of Cheboygan County, but located within 25 miles of the Burt Lake Band’s Cemetery at the St. Mary’s Indian Mission Church, shall be deemed to be within the Service Area of the Burt Lake Band. Nothing contained herein shall prohibit the Federal Government from providing services to members of the Burt Lake Band who reside or are domiciled outside this Service Area, or from otherwise expanding the Burt Lake Band’s Service Area in compliance with applicable Federal law and policy. Nothing in this subsection is intended to diminish or alter the service area of another federally recognized Indian tribe. If any part of the Burt Lake Band’s service area overlaps with the service area of another federally recognized Indian tribe, that overlap shall be addressed in compliance with existing Federal policies and regulations.
Reaffirmation of rights
All rights and privileges of the Burt Lake Band and its members, which may have been abrogated or diminished before the date of the enactment of this Act are hereby reaffirmed.
Existing Rights of Burt Lake Band
Nothing in this Act shall be construed to diminish any right or privilege of the Burt Lake Band or of its members that existed before the date of the enactment of this Act. Except as otherwise specifically provided in any other provision of this Act, nothing in this Act shall be construed as altering or affecting any legal or equitable claim the Burt Lake Band may have to enforce any right or privilege reserved by or granted to the Burt Lake Band which was wrongfully denied to or taken from the Burt Lake Band before the date of the enactment of this Act.
The Secretary shall acquire real property in Cheboygan County in trust for the benefit of the Burt Lake Band of Ottawa and Chippewa Indians, if at the time of such acceptance by the Secretary, there are no adverse legal claims on such property, including outstanding liens, mortgages or taxes owed, and the Secretary has confirmed that the National Environmental Policy Act of 1969 has been complied with regarding the trust acquisition of the property. After being taken into trust, such lands shall become part of the initial reservation of the Burt Lake Band at the request of the Burt Lake Band. The Secretary is also authorized to acquire and accept real property in other geographic areas into trust for the benefit of the Burt Lake Band and to declare those lands to be a part of the Burt Lake Band’s Reservation consistent with applicable law.
The initial membership of the Burt Lake Band of Ottawa and Chippewa Indians shall consist of persons who can present evidence, acceptable to the Burt Lake Band, showing that they meet the requirements of subsection (b), and persons who meet such other requirements as are specified by the Burt Lake Band in its Burt Lake Band’s Constitution and Enrollment Ordinance as the same may be from time-to-time amended.
To qualify for membership in the Burt Lake Band of Ottawa and Chippewa Indians, a person must be able to demonstrate through evidence acceptable to the Burt Lake Band that the person meets at least 1 of the following requirements:
The person descends from a tribal member who was domiciled at Colonial Point, Burt Township, Cheboygan County, Michigan, before or at the time that the Burt Lake Band’s village was burned in October 1900, as the tribal members are identified as Colonial Point residents in the case files of the litigation initiated by John W. McGinn to evict former residents from that land, or in the list prepared in or about 1950 as the Albert Shananaquet list of pre-1900 village residents, or both.
The person descends from a tribal member who is listed on the 1900 or 1910 Burt Lake Township Federal Census, Indian Enumeration Schedule.
The person has an Indian ancestor who was, prior to 1910, living in tribal relations with the Burt Lake Band of Ottawa and Chippewa Indians as the Burt Lake Band is defined in this Act.
In addition to the requirements under paragraph (1), to qualify for membership in the Burt Lake Band of Ottawa and Chippewa Indians, a person must be able to demonstrate through evidence acceptable to the Burt Lake Band that the person meets all of the following criteria:
That the person is in tribal relations with other Burt Lake Band members.
That the person’s ancestors have lived in tribal relations with other Burt Lake Band members on a substantially continuous basis from 1910 to the present.
That the person has a completed tribal membership enrollment file as prescribed by the Tribal Enrollment Ordinance.
That the person’s membership application has been processed and that the person has been approved for membership in the Burt Lake Band in the manner prescribed by the Tribal Enrollment Ordinance.
The Burt Lake Band shall provide a copy of the base roll of the Burt Lake Band of Ottawa and Chippewa Indians to the Assistant Secretary for Indians Affairs not later than 12 months after the date of the enactment of this Act. The base roll shall consist of the 320 persons whose names were listed on the official roll of the Burt Lake Band which were members submitted by the Burt Lake Band to the OFA on May 2, 2005, and shall also include the biological sons and daughters who were born to those members between the submission of that list and the enactment of this Act. The Base Roll shall also include those descendants of Burt Lake members who—
meet the enrollment criteria established by this section;
seek enrollment in the Burt Lake Band not later than 12 months after the date of the enactment of this Act; and
are accepted for enrollment in the Burt Lake Band in the manner prescribed by the Burt Lake Band’s Constitution.
The initial constitution of the Burt Lake Band shall be the constitution that the Burt Lake Band submitted to the OFA on May 2, 2005.