RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0135p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

ROBERT C. GENSCHOW, SR.,

 Defendant-Appellant.

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No. 09-1946

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. 

_________________

OPINION

_________________

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

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with the relevant historical documents.

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
No. 09-1946 United States v. Genschow Page 3

3

The United States acknowledged this relinquishment by canceling Menogezhick’s deed. 

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
No. 09-1946 United States v. Genschow Page 4

4

The ratified Constitution incorporated Zimmerman’s recommendation.

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
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 Fiftythree 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 federallyrecognized 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

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.

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.
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

6

Genschow waived his right to a jury trial.

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
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

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). 

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
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

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. 

10Elson 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

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
No. 09-1946 United States v. Genschow Page 18

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. 

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.