United States v. Genschow

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0135p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-1946
v.
,
>
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Defendant-Appellant. -
ROBERT C. GENSCHOW, SR.,
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Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 08-00018-001—Robert Holmes Bell, District Judge.
Argued: January 18, 2011
Decided and Filed: May 19, 2011
Before: BOGGS, SUHRHEINRICH, and STRANCH, Circuit Judges.

_________________

COUNSEL
ARGUED: Richard D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Grand Rapids, Michigan, for Appellant. Jeff J. Davis, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for
Appellant. Jeff J. Davis, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee.
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OPINION
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SUHRHEINRICH, Circuit Judge. Defendant-Appellant Robert C. Genschow,
Sr., a member of the Keweenaw Bay Indian Community, was convicted of destroying
trees on the Ontonagon Reservation in violation of 18 U.S.C. § 1853, and stealing tribal
property for his own use in violation of 18 U.S.C. § 1163. On appeal, Genschow claims

1
No. 09-1946 United States v. Genschow Page 2

his conviction was improper because he had a right to use the land as chief of the
Ontonagon Band. He further contends that his sentence was improper because he did
not receive an acceptance of responsibility reduction and the imposed restitution award
was too large. We AFFIRM.

I. BACKGROUND

The Keweenaw Bay Indian Community (“KBIC”) is a federally recognized tribe
with reservation and trust lands in Michigan’s Upper Peninsula. The KBIC’s lands
include an 80-acre parcel of unpopulated, tribal trust land on the Ontonagon Reservation
in Michigan’s Ontonagon County (the “Property”).1 Genschow asserts that the Property
is reserved for the use and benefit of the Ontonagon Band. Genschow, who is a member
of the KBIC, maintains that he is Chief Lonewolf, chief of the Ontonagon Band.

A. History of the Ontonagon Band and the Property2

Because Genschow claims he acted rightfully and in his capacity as chief of the
Ontonagon Band, we begin with a review of historical events related to the tribe and the
Property. In 1854, the Chippewa of Lake Superior entered into a treaty with the United
States that required them to cede certain lands to the United States. In consideration for
this land, the United States agreed to “set apart and withhold from sale” land for several
bands of Chippewa including the L’Anse, Vieux Desert, and Ontonagon Bands. Id.

In 1855, President Franklin Pierce issued an Executive Order defining the
boundaries of the land reserved for the Ontonagon Band. Parcels of this land were
subsequently allotted to individual members, and in 1875, the Property was patented to
an individual named Menogezhick (also known as Me-no-ge-zhick, Antoine Jocco, and

1
The precise location of the Property is the West half of the Northwest quarter of Section 26 in
Township 53 North, of Range 38 West (W1/2, NW 1/4 of Sec. 26, T53N, R38W).
2
As the district court noted, the parties collectively did a tremendous job in supplying the court
with the relevant historical documents.
No. 09-1946 United States v. Genschow Page 3

Antoine Jocko). Yet, because he later received another allotment of land within
Wisconsin’s Bad River Reservation, Menogezhick relinquished the Property in 1912.3

By 1935, in response to the Indian Reorganization Act adopted the year prior, the
L’Anse, Lac Vieux Desert, and Ontonagon Bands began discussions with the
Department of the Interior (“DOI”) about organizing as a single tribe called the
Keweenaw Bay Indian Community. As a part of this effort, the group drafted a
Constitution and By-laws.

DOI Field Agent Peru Farver held three meetings with the group as it completed
this task. Farver submitted the Constitution to the Superintendent of the Lac du
Flambeau Agency, J.C. Cavill, who was also serving as the Chairman of the KBIC
Constitution Committee. In the attached letter, dated December 2, 1935, Farver
described the Ontonagon Band’s motivations for creating the KBIC:

The Ontonagon Band is included in this group because the Ontonagon
Reservation no longer exists. There are only a few scattered pieces of
Indian land left within the confines of the original reservation, and it is
understood only one Indian family resides there. Most of the Ontonagon
Band now being located at L’Anse, and affiliated with the L’Anse
people. It is satisfactory with the L’Anse Indians that the Ontonagon
Band be included in their organization, which appears to be a happy
solution for this band.

Letter from Peru Farver, Field Agent, Dep’t of the Interior, to J.C. Cavill,
Superintendent, Lac du Flambeau Agency (Dec. 2, 1935) [hereinafter Farver Letter].

A few days later, on December 9, 1935, Cavill also received correspondence
from Field Clerk E.J. Warren, who addressed the affiliations between the three bands
and further illuminated the status of the Ontonagon Band:

While the Ontonagon Reservation has always been spoken of and
designated as a separate reservation the fact is the only thing that ever
really took place on the Ontonagon Reservation was the allotting of land
in severalty to certain Indians—those living on the territory. No village
or reservation was ever established at that point in recent years. Most of

3
The United States acknowledged this relinquishment by canceling Menogezhick’s deed.
No. 09-1946 United States v. Genschow Page 4

the lands were sold, and today only a few of the original allotments,
inherited land, are still intact and unsold. No Indians now reside upon
the Ontonagon Reservation and only one or two reside in that section of
the country.

Letter from E.J. Warren, Field Clerk, Dep’t of the Interior, to J.C. Cavill,
Superintendent, Lac du Flambeau Indian Agency (Dec. 9, 1935) [hereinafter Warren
Letter].

On June 15, 1936, Assistant Commissioner of Indian Affairs, William
Zimmerman, sent his comments on the proposed KBIC Constitution to Cavill.
Zimmerman recommended the omission of any reference to the Ontonagon Reservation,
because “it appears that all of the Indians of the Ontonagon Band actually live on the
L’Anse Reservation” and because “the community has jurisdiction only over the lands
included within the L’Anse Reservation.” Letter from William Zimmerman, Jr.,
Assistant Commissioner, Dep’t of the Interior, to J.C. Cavill, Superintendent, Lac du
Flambeau Indian Agency (June 15, 1936).

In November 1936, the L’Anse, Lac Vieux Desert, and Ontonagon Bands of
Chippewa Indians adopted the Constitution to form the KBIC.4 The Preamble states:

We, the L’Anse, Lac Vieux Desert and Ontonagon Bands of Chippewa
Indians residing within the original confines of the L’Anse Reservation,
in order to organize as a tribe for the common welfare of ourselves and
our posterity . . . do order and establish this Constitution and By-laws,
our community which shall be known as the Keweenaw Bay Indian
Community.

Constitution And By-Laws of the Keweenaw Bay Indian Community Nov. 7, 1936,
pmbl. Article I provides that the territorial jurisdiction “shall embrace the land within
the original boundary lines of the L’Anse Reservation . . . and any and all future
additions of land acquired within or without said boundary line by the Secretary of the
Interior or by the Tribe . . . .” Id. art. I. And Article VII provides that the KBIC’s lands
include “unalloted lands of the Community, and all lands which may hereafter be

4
The ratified Constitution incorporated Zimmerman’s recommendation.
No. 09-1946 United States v. Genschow Page 5

acquired by the Community or by the United States in trust for the Community . . . .”
Id. art. VII.

Several government documents speak to the status of the Ontonagon Band and
the Property following the formation of the KBIC. The Field Solicitor’s Code of Tribes
and Land Units, dated December 1965, lists Michigan tribes as including “Keweenaw
Bay” and “Ontonagon, Keweenaw Bay,” among others. Dep’t of the Interior, Code Of
Tribes And Land Units 4 (1965). There is no independent listing for the Ontonagon
Band.

In June 1971, a memorandum addressing the status of the tribal land on the
Ontonagon Reservation passed from the Acting Area Director of the DOI’s Bureau of
Indian Affairs (“BIA”), Minneapolis Area Office to the Superintendent of the Great
Lakes Agency. The memorandum speculated that the tribal land, including the Property,
did not fall within the jurisdiction of the KBIC, belonging instead to “an unorganized
tribe . . . independent from all other existing groups” and further stated that “the tribal
tracts had reverted to tribal ownership . . . probably subsequent to the organization of the
[KBIC].” Memorandum from Acting Area Dir., Bureau of Indian Affairs, Dep’t of the
Interior to the Superintendent, Great Lakes Agency (June 22, 1971) [hereinafter 1971
BIA Memorandum]. The memorandum concluded with an inquiry for advice on the
issue and a directive to “request verification of the title status of this property from our
Title and Records Section.” Id.

The resulting Title Status Report, dated July 1971, lists an 80-acre parcel located
at “[t]he West half of the Northwest quarter of Section Twenty-six of Township Fifty-
three North of Range Thirty-eight West of the Michigan Meridian in Ontonagon County,
Michigan.” Chief, Titles and Records Section, Aberdeen Area Office, Bureau of Indian
Affairs, Dep’t of the Interior, Title Status Report 1 (1971). Although the report
identifies “Ontonagon Band of Chippewa Indians” as the property owner, it lists the
Property’s Reservation Code as 476, which denotes “Ontonagon, Keweenaw Bay.” Id.
at 2.
No. 09-1946 United States v. Genschow Page 6

In 1975, a group of individuals wrote to the BIA, seeking to organize as “The
Ontonagon Band of Lake Superior Chippewa Indians.” Letter from Alma Chosa Tilden
to Morris Thompson, Comm’r of Bureau of Indian Affairs, Dep’t of the Interior (Dec.
5, 1975). The BIA replied that “[t]he only Ontonagon Band of which we are aware is
organized together with the L’Anse and Lac Vieux Desert Bands to make up the
[KBIC]” and denied the request. Letter from Robert Pennington, Acting Chief, Div. of
Tribal Gov’t Serv., Bureau of Indian Affairs, Dep’t of the Interior to Alma Chosa Tilden
(undated) [hereinafter BIA Response Letter].

In 1992, The DOI Field Solicitor, Mark Anderson, wrote to the Area Director of
the BIA’s Minneapolis Area Office in response to a request about which tribal entity had
the right to exercise jurisdiction over a public domain allotment within the Ontonagon
Reservation. Anderson concluded, based on the language of the KBIC Constitution, that
the land was “not subject to the jurisdiction of the [KBIC] or any other federally-
recognized tribal government.” Letter from Mark A. Anderson, Office of the Solicitor,
Dep’t of the Interior, to Earl J. Barlow, Area Dir., Minneapolis Area Office, Bureau of
Indian Affairs, Dep’t of the Interior (Jan. 28, 1992).

In 2004, in response to a request regarding leasing land held by the United States
in trust for the Ontonagon Band of Indians, DOI Field Solicitor, Priscilla A. Wilfahrt,
wrote to the Regional Director of the BIA’s Midwest Regional Office: “Our files
indicate that the Ontonagon Band of Indians voted to organize with the L’Anse
Chippewa Indians to form the [KBIC]. Thus the property held for the Ontonagon Band,
since it no longer exists, should be deemed to be held by the [KBIC].” Letter from
Priscilla A. Wilfahrt, Field Solicitor, Office of the Solicitor, Dep’t of the Interior, to
Terry Virden, Reg’l Dir., Midwest Reg’l Office, Bureau of Indian Affairs, Dep’t of the
Interior (July 2, 2004) [hereinafter 2004 Field Solicitor Opinion] (citations omitted).

The 2004 Field Solicitor Opinion determined that the earlier 1992 Field Solicitor
Opinion was not controlling because the KBIC, “acting in a proprietary capacity[,] could
execute a lease for this property whether or not it may exercise regulatory jurisdiction
over the property.” Id. It concluded that the KBIC, as the successor in interest to the
No. 09-1946 United States v. Genschow Page 7

Ontonagon Band, “had the rights of any property owner to manage and control the use
of its property.” Id.5

In 2008, the BIA certified that the Property was held in trust by the United States
for the KBIC. The certification explained the history of the Property: Menogezhick
received an allotment to the Property in 1875, upon cancellation of the allotment in
1912, the Property reverted to the Ontonagon Band, “which is now under the jurisdiction
of the [KBIC]” per the 2004 Field Solicitor Opinion. Esther M. Thompson, Realty
Officer, Bureau of Indian Affairs, Dep’t of the Interior, Certification (2008) [hereinafter
BIA Certification].

B. Genschow And The Property

In August 2007, Genschow arranged for the logging and clearing of the Property.
In late September 2007, a KBIC Officer visited the Property and discovered that
approximately five acres had been cleared and stripped of all topsoil. Stakes marked out
a building site on the cleared ground. During a return trip to the site, the KBIC Officer
encountered Genschow, who explained that he planned to construct a building to house
an Ontonagon Band tribal office and personal living quarters for himself. Thereafter,
KBIC’s President wrote to the BIA and reported the unauthorized clearing of the
Property.

In October 2007, a BIA criminal investigator interviewed Genschow. At that
time, Genschow admitted to clearing the land, but asserted that he did so in his capacity
as Chief Lonewolf. During the interview, Genschow contended that he possessed a letter
from a KBIC tribal chairman, confirming that the Ontonagon Band was an entity
separate from the KBIC, but refused to share the letter with the BIA investigator.

5
The 2004 Opinion also explained that the 1992 Opinion did not preclude the KBIC from
exercising regulatory authority over the trust land because the Secretary of the Interior acquired the land
in 1971, years after the KBIC ratified its Constitution, and, therefore, it fell within the “future additions”
provision of the Constitution. This explanation incorrectly assumes that Ontonagon Band acquired the
Property after the formation of the KBIC. Although a Title Status Report issued in 1971, the Ontonagon
Band received the Property upon Menogezhick’s relinquishment in 1912, well before it decided to join the
L’Anse and Lac Vieux Desert Bands in forming the KBIC.
No. 09-1946 United States v. Genschow Page 8

Genschow also admitted that he had not sought permission from the KBIC to clear the
Property or construct a structure.

C. Procedural History

In April 2008, the government indicted Genschow on two counts. Count One
alleged that, pursuant to 18 U.S.C. § 1853, Genschow “did unlawfully cut and wantonly
injure and destroy, and did cause to be unlawfully cut and wantonly injured and
destroyed, trees growing, standing, or being upon an Indian reservation, or lands
belonging to or occupied by the [KBIC].” Count Two alleged that pursuant to 18 U.S.C.
§ 1163, Genschow “did embezzle, steal, knowingly convert to his own use or the use of
another, and willfully misapply property of an Indian tribe” by entering into a contract
with a logging company, wherein the logging company “would be compensated with
logs removed and from stumpage moneys obtained from the lands known as the
Ontonagon Reservation, which are held in trust by the United States for the use and
occupancy of the [KBIC].”

Genschow moved to dismiss the indictment for lack of jurisdiction, arguing that
the indictment was defective because the KBIC had no authority over the Property.
Genschow claimed that the trust lands on the Ontonagon Reservation continued to be
reserved for the use and benefit of the Ontonagon Band of Chippewa Indians and that
as a member of the Ontonagon Band, he has a right to the use and enjoyment of the
Property. For these reasons, Genschow alleged that the court lacked jurisdiction and
requested dismissal.

The district court denied Genschow’s motion to dismiss. After thoroughly
reviewing the historical record surrounding the Ontonagon Reservation, the district court
found that the Property, after Menogezhick’s relinquishment, had reverted to the
Ontonagon Band in 1912. Thus, the KBIC as the successor in interest to the Ontonagon
Band, retained authority over the Property. The district court concluded that the
indictment was not defective for attributing ownership of the Property to the KBIC.
Genschow appealed the decision. Because the district court’s order was not a final,
No. 09-1946 United States v. Genschow Page 9

appealable order, this court denied the motion for lack of jurisdiction. United States v.
Genschow, No. 08-2539 (6th Cir. Jan. 23, 2009).

The district court conducted a bench trial on March 23 and 24, 2009.6 The
government’s presentation included statements from several KBIC members who
testified that they had never heard Genschow refer to himself as “Lonewolf” or “Chief
Lonewolf” until after he had the Property cleared for his tribal building.

Genschow testified in his own defense. The essence of Genschow’s defense
was that because he genuinely believed that the Ontonagon Band continued to exist and
continued to be the entity for which the government held the Property, he lacked the
requisite intent element for the charged crimes. He claimed that the Ontonagon Band
continued to exist as an independent tribe because several members of the original
Ontonagon Band had not voted to merge with the KBIC. Genschow further testified that
the remaining Ontonagon Band members selected him when he was a baby to be the next
chief of the tribe, a role he assumed at the age of 24. In support of his claim that the
Ontonagon Band continued as a separate entity from the KBIC, Genschow submitted a
copy of the Ontonagon Band Constitution. The copy bore only his own signature and
Genschow testified that the original was destroyed in a fire, along with other records of
the document’s ratification. Genschow further acknowledged that to his understanding
he is currently the only living member of the Ontonagon Band.

The district court found Genschow guilty of Count One, explaining that the
KBIC owned the Property and Genschow admitted to cutting trees on the Property. With
respect to Count Two, which requires specific intent, the district court rejected the good
faith defense attempted by Genschow, stating that Genschow’s testimony “stretche[d]
credulity.” The district court explained that Genschow selectively chose to believe
certain information and to ignore evidence to the contrary. Moreover, the court noted
that because Genschow had repeatedly tried to become a part of the KBIC Tribal
Council, he possessed an understanding of the requirements of tribal communities to

6
Genschow waived his right to a jury trial.
No. 09-1946 United States v. Genschow Page 10

comply with the law. The district court concluded that Genschow’s actions did not
evince a good faith belief in his right to use the property and found Genschow guilty of
Count Two.

Prior to sentencing, Genschow submitted a written “acceptance letter” to the
probation department. It read in part:

I, Robert Genschow, do hereby accept responsibility for my actions. It
was my decision to undertake to have the land cleared on the Ontonagon
Reservation; and I, alone, am responsible for any and all consequences.
However, these actions were taken by me as Chief of the Ontonagon
Band of Lake Superior Chippewa Indians and were being undertaken for
what I believed was the benefit of that Ontonagon Band. . . . I am very
sorry for the trouble and difficulties I have caused everyone - the
Keweenaw Bay Indian Community, the BIA, the United States
Attorney’s Office and this Court. Still, while I now recognize that this
Court has determined my actions to have been wrong, I continue to
believe that I acted honorably and in good faith, sincerely believing in
the continued existence of the Ontonagon Band and its ancestral lands in
Ontonagon. Yet I now clearly understand that any actions I might take
in the future for the benefit of the Ontonagon Band must be undertaken
in accordance with federal law and, when appropriate, through both the
BIA and Congress.

Presentence Report ¶ 27.

The Presentence Report (“PSR”) set Genschow’s base offense level at 6,
pursuant to U.S. Sentencing Guidelines Manual § 2B1.1(a)(2) (2008), and added 6
levels, pursuant to U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(D) (2008), because
the offense involved a loss greater than $30,000 but less than $70,000, for a total offense
level of 12. The PSR did not include a recommendation for an acceptance of
responsibility adjustment and set Genschow’s criminal history category at “I.” As a
result, the PSR recommended a sentence of ten to sixteen months. The PSR also
recommended restitution of $47,200, based on a DOI damage appraisal that included
$21,100 in timber damages and $26,100 in unaccounted perimeter damage. Genschow
filed a sentencing memorandum in which he objected to the PSR.
No. 09-1946 United States v. Genschow Page 11

Just prior to sentencing, the President of the KBIC submitted a victim impact
statement. The letter described the sacred traditions of the Chippewa, or Ojibwe, which
include hunting, fishing, and food gathering from the land. It elaborated on the efforts
of the KBIC to preserve and protect their land and waters for future generations. The
letter concluded by explaining that Genschow’s actions destroyed KBIC resources and
offended KBIC traditions.

At sentencing on July 9, 2006, the district court concluded that Genschow had
regret for the consequences of his actions but did not possess the requisite acceptance
of responsibility to justify a reduction under U.S. Sentencing Guidelines Manual
§ 3E1.1(a). Regarding restitution, the district court heard testimony from a government
witness who elaborated on the PSR estimates of $21,100 in timber damages and $26,100
in unaccounted perimeter damage. Ultimately, the district court ordered Genschow to
ten months in federal prison, two years of supervised release, and restitution of $47,200
payable to the KBIC.

This appeal followed.

II. ANALYSIS

A. Motion to Dismiss

1. Standard of Review

The district court’s conclusion that the Property was held in trust for the KBIC
is a mixed question of law and fact. Our review is de novo. See McKenna v. Edgell, 617
F.3d 432, 448-49 (6th Cir. 2010) (“Mixed questions of law and fact . . . are sometimes
reviewed deferentially—when the relevant dispute concerns the underlying facts—and
are at other times reviewed de novo—when the relevant dispute concerns the application
of law to the underlying facts.”); see also Yankton Sioux Tribe v. Podhradsky, 606 F.3d
994, 1004 (8th Cir. 2010) (applying a de novo standard to a mixed question of law and
fact in a dispute over tribal land boundaries in the diminishment context); Osage Nation
v. Irby, 597 F.3d 1117, 1122 (10th Cir. 2010) (same).
No. 09-1946 United States v. Genschow Page 12

2. Merits

Genschow asserts that there is no subject matter jurisdiction because the
Ontonagon Band continues to exist and is the entity for which the government holds the
Property in trust. The government counters that the district court properly determined
that the Ontonagon Band ceased to exist when it became the KBIC and that the
government holds the Property in trust for the KBIC.

a. Existence of the Ontonagon Band

BIA regulations provide the procedures for acknowledging when American
Indian groups exist as tribes. 25 C.F.R. § 83.1-13 (2011). Federal recognition matters
because “[a]cknowledgment of tribal existence by the Department is a prerequisite to the
protection, services, and benefits of the Federal government available to Indian tribes by
virtue of their status as tribes.” 25 C.F.R. § 83.2. Apart from formal recognition,
individuals at one time associated with a tribe cannot independently continue the tribe
by refusing to adhere to a tribal decision; instead, individual tribe members “dissolve
their connection” with their tribe when they refuse to abide by the decision of the tribe.
E. Band of Cherokee Indians v. United States, 117 U.S. 288, 309 (1886); see also
Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 86 (1977).

Genschow presented no evidence that the Ontonagon Band has complied with
the BIA regulations to establish itself as a federally recognized tribe. Genschow cites
the 1854 Treaty with the Chippewa as evidence of recognition of the Ontonagon Band,
but that does not operate to replace federal recognition by virtue of the BIA procedures.
See United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 548 (10th Cir.
2001) (concluding that a treaty from the 1850s does not speak to present-day tribal
status). Instead, the historical evidence indicates that the majority of the Ontonagon
Band decided to organize as a federally recognized tribe known as the KBIC in 1936.
See Farver Letter, supra (explaining that most of the Ontonagon Band lived on the
L’Anse reservation); Constitution And By-Laws of The Keweenaw Bay Indian
Community Nov. 7, 1936, pmbl. (“We, the . . . Ontonagon Band of Chippewa Indians
No. 09-1946 United States v. Genschow Page 13

residing within the original confines of the L’Anse Reservation . . . [establish] our
community . . . the Keweenaw Bay Indian Community.”).

Regarding Genschow’s claim that the Ontonagon Band continued separately
from the KBIC, there is some evidence that at least one or two Ontonagon Band
members lived apart from the majority of the tribe living on the L’Anse reservation.
Warren Letter, supra. Nonetheless, any decisions by individual Ontonagon Band
members to forego joining their tribe in establishing the KBIC did not continue the
Ontonagon Band as an independent entity. See E. Band, 117 U.S. at 309; see also id. at
303 (describing members who chose not to join the newly created Cherokee nation as
“without organization or a collective name”). Documents created since the Constitution
indicate that the Ontonagon Band exists today only as the KBIC. BIA Response Letter,
supra (“The only Ontonagon Band of which we are aware is organized . . . to make up
the [KBIC].”); see also 2004 Field Solicitor Opinion, supra; Letter from Susan J. La
Fernier, President, KBIC, to Gerald Parish, Superintendent, Bureau of Indian Affairs,
Dep’t of the Interior (Oct. 2, 2007). Furthermore, the list of federally recognized tribes
includes the KBIC and does not include an independent Ontonagon Band. Indian
Entities Recognized and Eligible to Receive Services from the United States Bureau of
Indian Affairs, 75 Fed. Reg. 60810 (2010).

b. The KBIC Retains Interest in the Property

“It is settled that whatever title the Indians have is in the tribe, and not in the
individuals, although held by the tribe for the common use and equal benefit of all the
members.” United States v. Jim, 409 U.S. 80, 82 (1972) (citation omitted). Because
tribal land belongs to the tribe as a political body, it retains the ability to make decisions
about the disposition of its land. See E. Band, 117 U.S. at 308.

The Ontonagon Band received its interest in the Property in 1912 through
Menogezhick’s relinquishment. It retained this interest until 1936 when it decided to
establish the KBIC. By virtue of this decision, the Ontonagon Band’s property interests
became those of the KBIC. Plainly, the KBIC is the successor in interest to the Property.
The idea that the KBIC is the successor in interest of the Ontonagon Band should come
No. 09-1946 United States v. Genschow Page 14

as no surprise as we have repeatedly recognized it as such. See Keweenaw Bay Indian
Cmty. v. Rising, 569 F.3d 589, 591 (6th Cir. 2009) (describing the KBIC as “a federally
recognized Indian tribe and the successor in interest to the L’Anse and Ontonagon bands
of Chippewa Indians”); Keweenaw Bay Indian Cmty. v. Naftaly, 452 F.3d 514, 516 (6th
Cir. 2006) (same).

Genschow contests this conclusion by citing the language from the KBIC
Constitution that restricted the territorial jurisdiction of the KBIC at its formation to the
“land within the original boundary lines of the L’Anse Reservation.” While the terms
of the KBIC Constitution do not explicitly establish authority over the Property, several
other documents do. The 2008 BIA certification supports the conclusion that the
Property belongs to the KBIC as the Ontonagon Band’s successor in interest, as does the
2004 DOI Field Solicitor Opinion.

Genschow relies on the 1992 Field Solicitor Opinion and 1971 BIA
Memorandum to demonstrate that the Property is not held for the KBIC. Yet, neither of
these documents are persuasive on this issue. The 1992 Field Solicitor Opinion did not
address interest in the Property; rather, it considered the KBIC’s potential regulatory
jurisdiction over a public domain allotment held in the estate of a deceased L’Anse
Chippewa Indian. The 1971 BIA Memorandum speculated that the Property did not
belong to the KBIC and, instead, belonged to “an unorganized tribe . . . independent
from all other existing groups.” 1971 BIA Memorandum, supra. But this assertion was
predicated on the incorrect assumption that the Property reverted to tribal ownership
after the formation of the KBIC. In any event, the memorandum concluded by
requesting title status verification. A Title Status Report issued the next month and
assigned a reservation code of 476 to the Property, which reflects ownership by the
“Ontonagon, Keweenaw Bay” tribe.

Based on the extensive historical record and the well-settled principles of tribal
land ownership, we conclude that the Ontonagon Band ceased to exist in 1936 when it
established the KBIC and that the government now holds the Property in trust for the
No. 09-1946 United States v. Genschow Page 15

KBIC. As such, the indictment was not defective as alleged, and the district court
properly denied the motion to dismiss.

B. Acceptance of Responsibility Reduction

On appeal, Genschow asserts that the district court erred by focusing primarily
on his criminal offense conduct when it denied him an acceptance of responsibility
reduction. Genschow maintains that, when considering his eligibility for the reduction,
the district court ought to have confined its analysis to the events occurring after
Genschow was on notice of the federal authorities’ interest in his activities on the
Property.

1. Mootness

We first consider whether this issue is moot. Genschow’s sentence included ten
months of imprisonment and two years of supervised release, of which the term of
imprisonment is complete. While it is true that he has served his custodial sentence, he
is still serving his two years of supervised release. Presumably, if we were to remand
this issue, the district court could eliminate or reduce the duration of his term of
supervised release; accordingly, this issue is not moot. See United States v. Maken, 510
F.3d 654, 656 n.3 (6th Cir. 2007) (“Even when an appellant has been released from
custody, his case is not moot so long as the appeal potentially implicates the length of
the appellant’s supervised release term.” (internal citation and quotation marks omitted)).

2. Merits

The district court’s decision to deny Genschow an acceptance of responsibility
reduction is entitled to great deference on review. U.S. Sentencing Guidelines Manual
§ 3E1.1 cmt. 5 (2008). We review for clear error. United States v. Webb, 335 F.3d 534,
537-38 (6th Cir. 2003).7

7
In his briefs before this Court, Genschow argues for de novo review and cites in support our
unpublished decision in United States v. Hakley, 101 F. App’x 122 (6th Cir. 2004). In United States Webb,
335 F.3d 534, 538 (6th Cir. 2003), we explicitly stated that the correct standard is a deferential one in light
of Buford v. United States, 532 U.S. 59, 64-65 (2001). To the extent that Hakley contradicts this
pronouncement, Webb is controlling. See 6th Cir. R. 206(c) (2009).
No. 09-1946 United States v. Genschow Page 16

Merely expressing regret for the consequences of the criminal conduct, without
admitting wrongful intent, does not constitute acceptance of responsibility within the
meaning of the Guidelines. United States v. Williams, 940 F.2d 176, 183 (6th Cir. 1991);
United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990). Although the district courts
retain “discretion in determining the time period for acceptance of responsibility,” this
discretion is not unbridled. United States v. Jeter, 191 F.3d 637, 640 (6th Cir. 1999),
abrogated on other grounds, Buford v. United States, 532 U.S. 59 (2001). The
defendant “must be on notice that the federal government has an interest in his or her
affairs before § 3E1.1 comes into play.” Id. at 639-40; see also United States v.
Clements, 142 F. App’x 223, 227-28 (6th Cir. 2005) (concluding, after reviewing Sixth
Circuit case law, that the considerations of conduct occurring after some form of notice
is reasonable).

At sentencing, the district court heard testimony regarding Genschow’s
acceptance letter, in which he stated in part, “while I now recognize that this Court has
determined my actions to have been wrong, I continue to believe that I acted honorably
and in good faith.” The district court concluded that while Genschow felt regret for the
consequences of his actions, he did not demonstrate the required acceptance of
responsibility. Regret alone does not warrant a reduction. Williams, 940 F.2d at 183.
Further, the district court clearly did not rely exclusively on pre-notice conduct, given
that the sentencing hearing included testimony about the acceptance letter. As a result,
we find no clear error in the district court’s denial of an acceptance of responsibility
reduction.

C. Restitution

The district court awarded restitution in the amount of $47,200 to account for the
value of the removed timber and the cost of restoring the Property. Genschow
challenges this award, arguing that the restitution award ought to reflect the property’s
current fair market value, an approach which would have reduced Genschow’s financial
No. 09-1946 United States v. Genschow Page 17

obligation to the KBIC.8 We review the amount of the district court’s award for an
abuse of discretion. United States v. Elson, 577 F.3d 713, 725 (6th Cir. 2009) (citing
United States v. Boring, 557 F.3d 707, 713 (6th Cir. 2009)).

The Mandatory Victims Restitution Act (“MVRA”) requires a district court to
order full restitution for offenses against property. 18 U.S.C. §§ 3663A(a)(1),
3663A(b)(1), 3663A(c)(1) (2000); Elson, 577 F.3d at 721. In determining the restitution
amount, the statute “unambiguously tells a court what to value” (i.e., the property lost
less any property returned), but “is silent . . . on the question of how the referenced
property is to be valued.” United States v. Boccagna, 450 F.3d 107, 114 (2nd Cir. 2006)
(citing 18 U.S.C. § 3663A(b)(1)) (emphasis added). Although fair market value may
often be the most appropriate measure of full restitution, the MVRA by its terms in no
way indicates that fair market value is the only contemplated or permissible measure of
restitution. Id. at 114-15.9 When destroyed property is unique or lacks a broad and
active market, a court may look to the replacement cost to satisfy the statute. See United
States v. Shugart, 176 F.3d 1373, 1375 (11th Cir. 1999); Boccagna, 450 F.3d at 116
(same). In other words, “‘value,’ as § 3663A uses that term, contemplates a restitution
order based on replacement cost where actual cash value is unavailable or unreliable.”
Shugart, 176 F.3d at 1375.10

8
Because land near the Property is often used for recreational purposes, Genschow contended that
the value of the Property had actually increased by virtue of his actions. Thus, using the fair market value
of the Property as a basis for the restitution award would serve to decrease or eliminate the amount of
money Genschow owed the KBIC. The fair market value Genschow proposed did not explicitly take into
account any of the damage done to the property.
9
In support of his claim that the district court should have utilized a market-based calculation
Genschow cites United States v. Warshawsky, 20 F.3d 204 (6th Cir. 1994), and a case citing Warshawsky.
In Warshawsky, we recognized that “‘fair market value’ is the proper measure of the value” of stolen
property for purposes of establishing the offenders’ base offense level under the U.S. Sentencing
Guidelines. Id. at 212 (citing U.S. Sentencing Guidelines § 2B1.1). Genschow challenges the calculation
of the restitution award, not the value of the Property as it related to his offense level under the Sentencing
Guidelines, thus, Warshawsky is not dispositive.
10
Elson is not to the contrary. In Elson, the defendant pled guilty to conspiracy to obstruct a
grand jury investigation. 577 F.3d at 719. The district court’s restitution award included compensation
for victims of the fraud, including an attorney. On appeal, Elson challenged the restitution award and
argued that the MVRA does not allow for “consequential damages” like attorney fees. We disagreed. We
explained that “the MVRA restricts restitution to the replacement value of the property” and found that
in situations, like Elson’s, where the offense does not involve physical damage to or destruction of
property, the MVRA “requires only that the restitution ordered by the district court be based on losses
caused by the specific conduct that is the basis for the offense of conviction.” Id. at 726 (citations and
No. 09-1946 United States v. Genschow Page 18

In Shugart, vandals torched a century-old church cherished by its congregation.
It burned to the ground. The district court ordered the defendant to pay restitution based
on the cost of rebuilding the church. On appeal, the Eleventh Circuit considered whether
the MVRA allowed restitution awards based on replacement cost when using the fair
market value of the property would have resulted in a different, and presumably lesser,
award. The court explained that “[f]or fungible commodities, value is easy to determine:
it’s the actual cash value, or fair market value, of the item… .” Id. The court found that
a church is not a fungible commodity, but instead, “is unique, and is valued by its
members, precisely because of its location, its design, and the memories it evokes.” Id.
For that reason, the court concluded that fair market value was not an appropriate
measure for restitution and upheld the district court’s award. Id.

Tribal land similarly holds unique value in that its pristine, natural condition
allow tribes to partake in and to preserve tribal traditions. See Letter from Warren C.
Swartz, President, KBIC, to U.S. Probation Office (July 1, 2009). Any court’s attempt
to transform somehow this value into an actual market figure would most certainly be
difficult and unreliable. Because we conclude the Eleventh Circuit’s analysis in Shugart
was persuasive, we hereby adopt its rule and conclude that when destroyed property is
unique or lacks an active market such that the actual cash value is unreliable or
unavailable, using replacement value as a measure for restitution is proper under the
MVRA. We therefore hold that the district court did not abuse its discretion in awarding
restitution.

III. CONCLUSION

For the foregoing reasons the judgment of the district court is AFFIRMED.

quotation marks omitted). The restitution award, which covered costs incurred by the attorney while
defending himself against fraudulent lawsuits filed by Elson and while attempting to collect on a related
civil judgment, met this standard. Id. at 727-29.