Fletcher & Jurss: “Tribal Jurisdiction – A Historical Bargain”

Matthew Fletcher and Leah Jurss have posted “Tribal Jurisdiction — A Historical Bargain” on SSRN.

Here is the abstract:

The existing rhetoric surrounding tribal civil jurisdiction over non-Indians often leaves out the historical foundations to that jurisdiction. This article compares the tribal economies of the 18th and 19th centuries with the current environment of gaming and economic development on tribal lands. Though non-Indians and nonmembers occasionally object to tribal jurisdiction, the long history of tribal governance and economic regulation demonstrates that nonmembers have received and continue to receive the benefit of a bargain that places them under considerable tribal regulation in exchange for access to tribal markets.

Through a detailed survey of treaties, tribal statutes, and federal laws covering pre-1970’s tribal economic regulation, this article reveals that non-Indians have continually consented to tribal jurisdiction to access these tribal markets, making outliers of the non-Indians attempting to access tribal markets without consenting to tribal market regulations. Analyzing the laws surrounding the federal and tribal licensing of Indian traders; the Great Lakes fur trade; the marriage laws of the Five Civilized Tribes; and the procedures established for dealing with intruders on Indian lands in the 18th and 19th centuries demonstrates the vast historical underpinnings of the current efforts to retain civil jurisdiction over non-Indians.

This is a work in progress, and so as usual we would be delighted for helpful constructive criticism. Miigwetch!

 

United States Accepts Concurrent Jurisdiction Over Mille Lacs Band of Ojibwe

Department of Justice Press Release here.

The decision will take effect on Jan. 1, 2017.  Tribal, state and county prosecutors and law enforcement agencies will also continue to have criminal jurisdiction on the reservation.

“We believe this decision – made after a careful review of the tribe’s application and the facts on the ground – will strengthen public safety and the criminal justice system serving the Mille Lacs Band of Ojibwe,” said Deputy Attorney General Yates.  “This is another step forward in the Justice Department’s commitment to serve and protect American Indian and Alaska Native communities, to deal with them on a government-to-government basis and to fulfill the historic promise of the Tribal Law and Order Act.  Strong law enforcement partnerships with the Tribe, as well as state and local counterparts, will be essential to the success of this effort.”

Mille Lacs is the second tribe to be granted concurrent jurisdiction under the Tribal Law and Order Act of 2010. White Earth received concurrent jurisdiction status in 2013.

1855 Treaty Authority Members Issued Citations

A group of individuals from Ojibwe nations in Minnesota known as the “1855 Treaty Authority” staged a wild rice harvesting gathering in Nisswa, Minnesota on Hole-in-the-day Lake on August 27, 2015. The location is outside of current reservation boundaries, but within the territory ceded by the 1855 Treaty with the Chippewa. The group is asserting that because the 1855 Treaty did not specifically remove hunting, fishing, and gathering rights on the ceded territory, those rights still exist for tribal members off-reservation.

The Minnesota DNR issued one-day permits to diffuse tensions, but several members of the Treaty Authority continued to rice and gillnet the following day, and were issued citations for gillnetting without a permit. The final decision to formally charge the members with gross misdemeanors and bring the case to court is still forthcoming from the Crow Wing county attorney.

In 1999, the Supreme Court upheld the Mille Lacs Band of Ojibwe’s 1837 Treaty right to hunt, fish, and gather on ceded lands after determining that the 1855 Treaty did not extinguish those usufructuary rights. The Mille Lacs case did not decide whether the 1855 Treaty itself preserved off-reservation hunting, fishing, and gathering rights for other tribes in Minnesota.

The 1855 Treaty Authority previously attempted to get this issue into federal court in 2010, but the DNR did not issue any citations at that point.

Press release from the 1855 Treaty Authority here.

Letter to Minnesota’s governor here.

Response from Minnesota DNR here.

Previous coverage here.

30 Year Maximum “Take” FWS Rule Struck Down

Judge Koh (N.D. Calif.) set aside and remanded the Fish & Wildlife Service’s Final 30-Year Rule that extended the maximum duration of permits to take bald and golden eagles from five years to thirty years. The order states that the FWS failed to demonstrate that neither an EIS nor EA was needed for this twenty-five year extension.

The motion for summary judgment was granted for all NEPA claims, denied in part due to unsubstantiated (two sentences) ESA claims.

Order here.

Original complaint and previous coverage here.

Complaint and TRO in Oglala Sioux Tribe v. Burwell

Here.

Opening sentences:

The Tribe brings this action against the Department of Health and Human Services (“HHS”) and its agency, the Indian Health Service (“IHS”) seeking redress for their decision to use $1.6 million in funds appropriated for the Pine Ridge Service Unit, which provides health services to tribal members and other Indian beneficiaries, to fund a settlement of overtime pay that the IHS reached with unions. The IHS intends to use these funds to pay for the settlement even though the funds are required by law to be used to make improvements in the programs of the IHS operated by or through the Pine Ridge Service Unit which may be necessary to achieve or maintain compliance with the applicable conditions and requirements of Medicare and Medicaid.

Motion for TRO.

Exhibits.

AILC 8th Annual Tribal Leadership Conference

The American Indian Law Center will be holding its 8th Annual Tribal Leadership Conference: Transitions, September 22-23, 2015 in Santa Ana Pueblo, NM.

This conference invites all tribal leaders, key tribal administrators, tribal court judges, and court administrators and clerks to participate, learn, and share experiences on federal, state, and local issues important to tribal nations.

Register by September 16; discounted hotel rooms available until September 1. A full agenda will be available soon.

Registration form and hotel information available here.

AILS Transitions 2015

Crowe & Dunlevy Seek Experienced Indian Law & Gaming Attorney

Crowe & Dunlevy, one of Oklahoma’s oldest and largest law firms with offices in Oklahoma City and Tulsa, seeks an attorney with 7-9 years of experience to serve in our expanding Indian Law & Gaming practice group. The firm’s Indian Law & Gaming practice group serves numerous tribal governments and their entities and organizations, as well as international gaming companies.

Full application and more information available here.

Possible Hate Crime Motive in Fatal Wyoming Shooting

In late July, two Northern Arapaho men were shot while inside an alcohol and drug detox facility in Riverton, Wyoming. The FBI has started an investigation into a possible hate crime motive for the fatal shooting. Wyoming is one of only five states not to have a hate crime charge.

Full story here.