United States v. Genschow
2011 U.S. App. LEXIS 10340
| 6th Cir. | 2011Background
- KBIC is a federally recognized tribe with jurisdiction over trust lands including an 80-acre parcel on the Ontonagon Reservation.
- Genschow, KBIC member, claims the Ontonagon Band exists separately from KBIC and that he is Chief Lonewolf with rights to the Ontonagon Property.
- Historical record shows Ontonagon Band relinquished its land and joined to form KBIC in 1936; KBIC is the successor in interest to Ontonagon Band.
- Genschow cleared and stripped land on the Ontonagon Property in 2007; KBIC reported unauthorized activity and sought action under federal statutes.
- Indictments charged destruction of trees on tribal lands (18 U.S.C. § 1853) and embezzlement/conversion of tribal property (18 U.S.C. § 1163); district court denied dismissing for lack of jurisdiction and subsequently convicted Genschow after a bench trial.
- Sentencing included a restitution order of $47,200 and denial of a § 3E1.1 acceptance of responsibility reduction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ontonagon Band exists separately for purposes of title to the Property | Genschow: Ontonagon Band retained ownership; KBIC not entitled to trust property. | Genschow: Ontonagon Band remains distinct; KBIC lacks jurisdiction over the Property. | KBIC is successor in interest; Ontonagon Band ceased to exist in 1936; property held in trust for KBIC. |
| Whether the indictment was properly jurisdictional | KBIC had authority to hold the Property in trust and prosecute under federal statutes. | Ontonagon Band ownership would defeat federal jurisdiction. | Indictment not defective; district court properly denied motion to dismiss. |
| Whether Genschow is entitled to an acceptance of responsibility reduction | Maintenance of post-offense conduct should not affect eligibility if pre-notice behavior supported reduction. | District court should focus on post-notice conduct to determine acceptance of responsibility. | No clear error; denial of acceptance of responsibility affirmed. |
| Whether the restitution amount was proper under MVRA | Restitution should reflect replacement value when market value is unreliable. | Restitution should align with fair market value of destroyed property. | Replacement value permitted; district court did not abuse discretion in awarding $47,200. |
Key Cases Cited
- E. Band of Cherokee Indians v. United States, 117 U.S. 288 (1886) (tribal organization dissolution when members reject collective decisions)
- United States v. Jim, 409 U.S. 80 (1972) (tribal land belongs to the tribe; decisions about disposition rest with the tribe)
- Keweenaw Bay Indian Cmty. v. Rising, 569 F.3d 589 (6th Cir. 2009) (KBIC as successor in interest to Ontonagon and L’Anse bands)
- Keweenaw Bay Indian Cmty. v. Naftaly, 452 F.3d 514 (6th Cir. 2006) (KBIC recognized as successor in interest)
- Shugart v. United States, 176 F.3d 1373 (11th Cir. 1999) (replacement cost when actual cash value is unreliable for MVRA restitution)
- Elson v. United States, 577 F.3d 713 (6th Cir. 2009) (MVRA restitution limits and scope; replacement value framework context)
- Warshawsky v. United States, 20 F.3d 204 (6th Cir. 1994) (fair market value conditions for offense valuation)