Author: Kate E. Fort

Fed. District Court Finds Tribal Sovereign Immunity Waived by Removal in FMLA Claim

Kate Fort3 Comments

Order

The 11th Circuit found the opposite on this issue, leaving open the possibility of an eventual circuit split.

Defendants invoked the jurisdiction of the federal courts to
raise a jurisdictional defense that could equally have been
raised in the state court. As the court recognized in its January
9, 2014 Order, “there appears no principled reason for defendants to have removed the action before asserting immunity.” (ECF No. 40.) Defendants have advanced none in their briefing or at oral argument. The court therefore finds that the Tribe has unequivocally waived any claim of sovereign immunity through removal. And, as defendants Health Program, Health Board, and Brenda Adams’s assertions of sovereign immunity derive from the Tribe’s sovereign immunity, subject matter jurisdiction over plaintiff’s claims against these defendants is also proper.

Briefs will be posted this afternoon.

44 Shingle Springs Brief in Support of Motion to Dismiss
45 Bodi Memorandum
46 Shingle Springs Reply
47 Bodi Reply

Previous materials here.

TRO Granted in Paskenta Band of Nomlaki Indians v. Swearinger et al

Kate Fort1 Comment

Complaint: 2014 05 16 Complaint FINAL 2

Ex parte application for TRO:  2014 05 15 PASKENTA Ex Parte App for TRO and PI FINAL

Rosette Affidavit: 2014 05 16 Affidavit of RAR in support of Ex Parte TRO FINAL

Freeman Declaration: 2014 05 16 Freeman Dec FINAL w Exs

Memorandum in Support of Ex parte application 2014 05 16 Paskenta MPA FINAL

TRO: 4001_001 (1)

No Bay Mills This Week

Kate Fort

The next SCOTUS opinion release day is the 27th.

B.C. Supreme Court Decision to Quash Ministry Grant of Timber without Consultation

Kate Fort2 Comments

Decision in Ehattesaht First Nation v. British Columbia here.

Article here.

via @dougswhite

Article On the Cost of Community Protests on Extraction Industry Projects

Kate Fort

From the Proceedings of the National Academy of Sciences.

Here (pdf):

In this report we investigate company–community conflict and its role in the regulation of sustainability performance in the extractive industries. We estimate the cost of conflict to com- panies and identify conflict as an important means through which environmental and social risks are translated into business costs and decision-making. The paper clarifies the relationship between the environmental and social risk experienced—and interpreted—by local communities, and the business risks experienced—and interpreted—by corporations. Findings reveal that, at least for the case of the extractive industries, these two types of risk can co-constitute each other. The central importance of corporate strategy and behavior for sustainability science is highlighted.

***

Timing in the Project Cycle. When conflict occurs within the project cycle it has a significant influence on how companies respond to it. Conflict early in the cycle is more likely to lead companies to withdraw from an investment (which may imply reduced social and environmental impact, or may also mean the transfer of impacts to another location) and to consider fundamental re- design of the project. When conflict occurs later in the project cycle, companies are more likely to adapt the design or add on social responsibility activities, the latter of which provides impact compensation rather than impact reduction.

 

 

Oral Arguments Today in the Canadian Supreme Court in Keewatin v. Ontario

Kate Fort

The case on Harvesting Rights in Treaty 3. Description here:

The case is about Ontario’s authority to issue forestry authorizations in Treaty 3, which covers most of north-western Ontario and extends into Manitoba. After one of the longest and most thorough treaty interpretation trials in Canadian history, Justice Sanderson of the Ontario Superior Court of Justice decided that the Ojibway made treaty in 1873 with Canada, not Ontario. This, coupled with Canada’s exclusive responsibility for “Indians, and lands reserved for the Indians” under the constitution, meant that only Canada had the authority to issue forestry authorizations that would significantly affect Treaty 3 hunting and fishing rights.

A unanimous Court of Appeal disagreed. Relying heavily on the Privy Council’s 1888 decision in St. Catherine’s Milling, the Court held that Ontario’s ownership of Crown lands in Treaty 3 left no role for the federal government in land-use decisions affecting treaty rights. To involve Canada, said the Court, would create an “unnecessary, complicated, awkward and likely unworkable” process.

First Peoples Law firm blog posted the briefs (or factums).

First Nations’ briefs here.

Government’s briefs here.

Comments on the BIA Guidelines from AAIA, NICWA, NARF, NCAI, and Indian Law Professors

Kate Fort1 Comment

The comments are in response to the Dear Tribal Leader letter we posted about here.

Here from AAIA, NICWA, NARF, NCAI

Here from Indian law professors.

Here from Craig Dorsay.

Report of Special Rapporteur on the Situation of Indigenous Peoples in Canada

Kate Fort

Here (weblink) and here (pdf).

80. But despite positive steps, daunting challenges remain. Canada faces a continuing crisis when it comes to the situation of indigenous peoples of the country. The well-being gap between aboriginal and non-aboriginal people in Canada has not narrowed over the last several years, treaty and aboriginals claims remain persistently unresolved, indigenous women and girls remain vulnerable to abuse, and overall there appear to be high levels of distrust among indigenous peoples toward government at both the federal and provincial levels.

Squaxin Island Tribe Will be Live Streaming Billy Frank’s Services on Sunday

Kate Fort

Here, on May 11 from 1pm EDT to 3pm EDT.

via RW.

News Coverage of Honor the Earth Arguing For a Voice in Pipeline Route in Front of Minnesota ALJ

Kate Fort

Here.

Attorneys for the company contend that the commission has no business deciding the meaning of federal treaties. Even so, much of the two-hour discussion before Judge Eric Lipman focused on 10 treaties signed between 1825 and 1864 by Minnesota Indian tribes.

“It would represent a dramatic departure from the commission’s precedent and would significantly impact not just pipeline projects but all large energy projects sited in northern Minnesota,” said Christine Brusven, an attorney for the Calgary-based pipeline company that’s proposing to build the 610-mile pipeline to carry North Dakota oil.

Headed for the courts?

Lipman, who is overseeing the regulatory review of the pipeline, is expected to rule on the treaty rights question, but the final decision rests with the Public Utilities Commission. The issue ultimately could land in federal court.

H/T Jean O’Brien