Aboriginal Rights
Harvard Law Review Casenote on Silva v. Parrish
Metlakatla Prevails in Ninth Circuit on Fishing Rights
Here is the opinion in Metlakatla Indian Community v. Dunleavy.
Briefs are here.
Lower court materials here.
Second Circuit Issues Decision in Shinnecock Fishing Rights Case
Non-decision, more like. Here are the materials in Silva v. Farrish:
Opinion here. Excerpt from the court’s syllabus:
We hold that Ex parte Young applies to the plaintiffs’ fishing-rights claims against the New York State Department of Environmental Conservation (“DEC”) officials— but not against the DEC itself—because the plaintiffs allege an ongoing violation of federal law and seek prospective relief against state officials. We also hold that the plaintiffs have Article III standing to seek prospective relief and that Younger abstention no longer bars Silva from seeking prospective relief because his criminal proceedings have ended. We therefore conclude that the district court erred in granting summary judgment to the DEC officials on the plaintiffs’ claims for declaratory and injunctive relief. The district court properly granted summary judgment on the discrimination claims because there is no evidence in the record that would permit an inference of discriminatory intent.
Lower court materials here.
Washington COA Rejects Cowlitz Members’ Aboriginal Fishing Rights Claim
Here are the materials in Simmons v. State of Washington:
International Lawyers Amicus Brief in Indigenous Maya Q’eqchi’ Agua Caliente Community v Guatemala
Here:
Amicus Brief – International lawyers – Case of the Indigenous Maya Qeqchi Agua Caliente Community v Guatemala.pdfDownload
More details on the case here.
Metlakatla Fisher’s Cert Petition
Here is the petition in Scudero v. Alaska:
Questions presented:
1. Can the State of Alaska by criminal prosecution and threat of fine and incarceration prohibit Alaska Native members of the Metlakatla Indian Community and Tribe and the Tsimshian Nation, who have vested broad off-reservation, aboriginal, treaty, presidential proclamation, and congressional legislature enacted, and granted, fishing rights, from harvesting fish in their traditional Pacific Ocean fishing waters, and Annette Islands Reserve related waters, which fishing is essential to their culture, heritage, and lifestyle, and vital to the very purpose for which the Reserve was established and dedicated, under the guise of “conservation necessity” by criminally banning those natives who are “un-permitted” i.e., do not have State of Alaska “limited entry permits,” which permits are bought and sold for many tens of thousands of dollars and well beyond the financial resources and means of most natives, and which permits were issued in a restricted and “qualifying fashion” that discriminates against those Metlakatla Natives?
2. Should this Court act as the United States Supreme Court did on two (2) prior occasions in Alaska Pacific Fisheries Company v. United States, 248 U.S. 78, 39 S.Ct.40, 63 L.Ed. 138 (1918) and Metlakatla Indian Community v. Egan, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed. 262 (1962), to protect the rights of the Tsimshian Nation members of the Metlakatla Indian Community and Tribe as to the Annette Islands Reserve, as to vested fishing rights relating to the Reserve, or allow the State of Alaska and the Alaska Supreme Court to abrogate and extinguish those aboriginal, treaty, presidential proclamation, and congressional legislation and grant rights [which abrogation involves native fishing rights that evolve from the Russian Treaty of Succession of 1867 (Alaska Acquisition Treaty) and subsequent federal legislation including the Alaska Statehood Act, (72 Stat. 339) Public Law 85-508, 85th Congress, H.R. 7999, July 7, 1958, the Alaska Native Claims Settlement Act (“ANCSA,” 43 U.S.C. § 1601 et. seq.), and violation of the duties and obligations of the State of Alaska thereunder], with devastating impacts on the Metlakatlans and their thousands of years of culture tradition and heritage under the guise of the misapplied “conservation necessity principle,” where said misapplication is discriminatory against the Tsimshian Metlakatla Tribe and natives such as John Albert Scudero, Jr. and there will be no real impact on the Alaska limited entry fishing program or the fisheries of Alaska if the natives’ vested rights are honored?
3. Can the State of Alaska by such criminal prosecution abolish those Alaska Natives’ fishing rights when allowing the small number of Metlakatlans to exercise their rights will in reality have little impact on the State of Alaska Limited Entry Fisheries Program, or salmon fisheries; although such discriminatory ban and prohibition and criminal prosecution abrogates and emasculates those vested fishing rights and destroys the basic purpose for which the Reserve was established by presidential proclamation and congressional action, as a reserve for the Alaska Natives to enjoy and practice their historical and traditional fish harvesting lifestyle, as opposed to an agrarian lifestyle which was and is not possible on the Reserve; or does the State of Alaska have to honor those vested rights of the Alaska Natives, Metlakatlans, as the Courts have held as to vested native fishing rights and allow them to fish on equal footing and par with non-native fishers, merely perhaps equally subject to true conservation regulatory measures as to “manner and means,” and “seasons” of harvest and not subject to a criminal prosecution impressed discriminatory total ban on un-permitted natives so exercising their vested fishing rights?
Lower court materials here.
Case of Maya Kaqchikel Indigenous Community of Sumpango v. Guatemala
From Nicole Friederichs:
Suffolk Law’s Human Rights and Indigenous Peoples Clinic secures victory for indigenous communities in Guatemala.
On Friday, December 17, the Inter-American Court of Human Rights ruled in favor of indigenous communities in Guatemala in the Case of Maya Kaqchikel indigenous community of Sumpango, et al. v. Guatemala. Suffolk University Law School’s Human Rights and Indigenous Peoples Clinic has been the legal representative of the four named indigenous communities in this case since 2012.
The Court ruled that the State of Guatemala violated the indigenous communities’ rights to freedom of expression and thought, culture, and non-discrimination by promoting a regulatory framework which prevented indigenous peoples from accessing radio frequencies to develop and operate community radio stations. The Inter-American Court ordered Guatemala to (1) adopt legislative and regulatory measures to ensure for the recognition of community radio, (2) reserve indigenous community radio as part of the radio spectrum and (3) to halt all government raids of existing indigenous community radio. This court victory culminates decades of advocacy by indigenous communities in Guatemala and indigenous organizations such as Cultural Survival, one of the petitioners in the case.
What is of particular significance is the Court’s recognition of indigenous peoples’ right to operate their own media, and the relationship of this right to freedom of expression, culture, self-determination, and non-discrimination. This is the first known international case to recognize this right and its recognition by the Inter-American Court should influence how other judicial and human rights bodies interpret and promote this right to media under the U.N. Declaration on the Rights of Indigenous Peoples.
The legal team was led by Nicole Friederichs, Director of Suffolk’s Human Rights and Indigenous Peoples Clinic, along with Suffolk Law Adjunct Prof. Amy Van Zyl-Chavarro. Suffolk Law Prof. Lorie Graham submitted expert testimony, on which the Court relied in its analysis of indigenous peoples’ right to media. Nicole Friederichs noted, “This decision is a victory not only for indigenous communities in Guatemala, but also for indigenous peoples throughout this hemisphere in protecting their rights to freedom of expression and culture and promoting pluralism in media.”
Tenth Circuit Holds Pueblo Water Rights NOT Extinguished by Spain
Here is the opinion in United States v. Abouselman.
Briefs and lower court materials here.
Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families
Somehow the final passage (“royal assent”) of this bill in Canada slipped our attention back in June. Initially, we saw it referred to as a “Canadian ICWA”, but it seems fair to say that it doesn’t quite achieve that level of protection for Native children and families. If nothing else, it illustrates just how differently the Canadian government engages with the tribal nations within its borders compared to the U.S.. We want to add a large caveat, which is that none of us are experts on Canadian law or child welfare.
However, those that are put together a really helpful publication which is available here, and is well worth your read (it made us think about if ICWA would get passing grades):
does-bill-c-92-make-the-grade_-full-report
From the Jurisdiction section of the report:
Why We Give the Bill a ‘D’ on this:
IN A HISTORIC FIRST FOR CANADA, the Bill purports to recognize Indigenous peoples’ inherent jurisdiction. For example, section 8(a) of the Bill affirms “the rights and jurisdiction of Indigenous peoples in relation to child and family services”. This positively worded language is also noted in the Bill’s introduction and summary. Similarly, section 18(1) states that the “inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.” Section 18(2) affirms that this right includes the right to “provide for dispute resolution mechanisms.”
As there are no section 35 cases that recognize an inherent right of self-government for Indigenous Peoples or that have recognized an Aboriginal or Treaty right over child and family services law-making, this is a significant step forward.
This is not, however, a recognition of jurisdiction that removes all federal or provincial oversight, power or intervention. By recognizing jurisdiction over child and family services as a section 35 right, the federal government immediately re-asserts its power to unilaterally infringe or limit that right, a power upheld by court cases such as Sparrow. The legislation sets legal limits in terms of Indigenous laws being subject to Charter and Canadian Human Rights Act and the BIOC. It also sets practical limits in terms of the virtual necessity of negotiating coordination agreements with the federal and provincial governments, and in the glaring absence of any provisions for funding. At best, this could be interpreted as an acknowledgment of concurrent (or shared) jurisdiction, a matter on which Bill C-92 should be more clear.
***
Further, section 23 states Indigenous laws only authoritative if they can be applied in a way that “is not contrary to the best interests of the child.” As previously stated, Indigenous laws have upheld the best interests of Indigenous children for thousands of years. The concern about this limit is how the BIOC doctrine has been interpreted and applied by courts, non-Indigenous governments and decisions makers to apprehend Indigenous children and separate them from their families, communities and territories for the past 50 plus years.
Turtle Talk 
You must be logged in to post a comment.