cultural resources – Page 88

Fletcher & Reo Response Paper to Sanders on the Wisconsin Wolf Hunt

January 15, 2014January 14, 2014Matthew L.M. Fletcher2 Comments

Matthew Fletcher & Nick Reo published a short paper, “Response to Sanders: Ma’Iignan as Property,” at the Wisconsin Law Review Online. Jason Sanders’ excellent law review note that started all this is here.

Here is an excerpt:

American law has long recognized the state as the owner of wild game within a state’s borders, including gray wolves (or “ma’iingan” in Anishinaabemowin), within the States of Wisconsin, Minnesota, and Michigan. However, as Anishinaabe scholar Jason Sanders forcefully demonstrates, the Anishinaabeg—indigenous people of the western Great Lakes known as the Ottawa (Odawa), Potawatomi (Bodewadmi), and Chippewa (Ojibwe)—considered ma’iingan siblings, not property. One does not hunt one’s siblings.
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Sanders’s paper is a fine example of cutting edge, pragmatic legal scholarship that will allow the stakeholders, in time, to push through the adversarial rhetoric and move into a more useful cooperative mode. Federal Indian law, often through the assertion of American Indian treaty rights, has historically been a powerful engine for change. Treaty rights cases arising from Anishinaabeg treaties often do not result in a winner-take-all outcome, with either tribes or states prevailing over all opponents. Instead, the rule of law as exemplified by Indian treaty rights forces state interests to reckon with the interests of a discrete and insular minority. As such, regulation of hunting, fishing, gathering, and other activities on or near Indian country is an intergovernmental affair, dominated by cooperative fact finding and negotiation.

Arctic Law Symposium Articles Available Online

January 14, 2014Victoria Sweet

Articles from the 2013 Arctic Law Symposium held at Michigan State University College of Law have been published in the Michigan State International Law Review. Included in this volume are several articles specifically addressing how Indigenous peoples may be impacted by the current changes and developments in the region including:

Closing the Citizenship Gap in Canada’s North: Indigenous Rights, Arctic Sovereignty, and Devolution in Nunavut
Tony Penikett and Adam Goldenberg

Risk, Rights and Responsibility: Navigating Corporate Responsibility and Indigenous Rights in Greenlandic Extractive Industry Development
Rutherford Hubbard

Legal Questions Regarding Mineral Exploration and Exploitation in Indigenous Areas
Susann Funderud Skogvang

Permanent Sovereignty over Natural Resources from a Human Rights Perspective: Natural Resources Exploitation and Indigenous Peoples’ Rights in the Arctic
Dorothée Cambou and Stefaan Smis

Climate Change, Indigenous Peoples and the Arctic: The Changing Horizon of International Law
Sumudu Atapattu

Link to the the full issue here.

Link to previous coverage here.

Federal Court Denies Cross-Motions for Summary Judgment in Dispute over Oklahoma Indian Arrow License Plate

January 9, 2014January 8, 2014Matthew L.M. Fletcher2 Comments

Here are the materials in Cressman v. Thompson (W.D. Okla.):

95 OPC Motion for Summary J

96 OTC Motion for Summary J

98 Cressman Motion for Summary J

111 DCT Order Denying Motions for Summary J

This case is slated for trial (!).

Tenth Circuit materials here. Earlier district court materials here.

Patent and Trademark Office Denies Trademark Protection for “Redskins Hog Rinds”

January 8, 2014January 8, 2014Matthew L.M. Fletcher

WaPo coverage here, with link to the PTO letter and attachments here.

NYTs on the Auction of Little Thunder’s Shirt

December 28, 2013Matthew L.M. Fletcher1 Comment

Here is the article “Indian Family Sees Its History in a Shirt.”

An excerpt:

Cultural property claims can be complex: The competing interests of good-faith collectors and plundered civilizations have to be adjudicated among complications like the passage of time, the disappearance of records and the evolution of law.

Douglas Diehl, director of the American Indian and ethnographic art department at the auction house, would not discuss the matter when reached by phone, but released a statement saying that Skinner “is committed to the highest standards of research and due diligence” and is “particularly sensitive to Native American artifacts.”

The collector who consigned the item for sale, Charles E. Derby, said that he had good title to the shirt. He bought it, according to his lawyer, William H. Fry, from another collector in the early 1980s and has a bill of sale. Mr. Fry said his client could track the shirt, which has been shown in museums, back to 1955, when it was displayed, and later sold, by a bookstore in Cambridge, Mass.

A lawyer for the Little Thunder family, Robert P. Gough, said that a collector would need a lengthier provenance for the shirt to claim good title.

Wisconsin Law Review Publishes Jason Sanders’ “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt”

December 23, 2013December 20, 2013Matthew L.M. Fletcher1 Comment

Jason Sanders has published “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt” in the Wisconsin Law Review.

Here is the abstract:

In 2012, Wisconsin authorized the first state hunt of gray wolves. Wisconsin’s interest in wolf depredation is legitimate: the growth in wolf population has exponentially increased human-wolf conflicts and state expense. Yet, Wisconsin shares these wolves; 83 percent of gray wolves reside on Ojibwe reservations or on territory ceded by the Ojibwe, where the Tribes still have resource rights. The Tribes vehemently oppose the wolf hunt. The Ojibwe maintain a strong cultural kinship with wolves and have traditionally prohibited wolf hunting. The Tribes named wolves a “tribally protected species,” asserting a right to protect all the wolves shared with Wisconsin. Historically, the Tribes and the State cooperatively managed shared resources. However, the State initiated the wolf hunt despite tribal protestations, instigating the first break from cooperative management in decades. Both sovereigns have legitimate and conflicting interests and appear to risk their first major treaty rights litigation in decades.

This Comment analyzes the extent of each sovereign’s wolf rights in light of biological research and existing Indian law precedents. The first issue is the scope of the State’s obligation to respect the Tribes’ sovereign rights to protect and perpetuate reservation wolf packs. The second issue is the extent of the Tribes’ rights to protect ceded-territory wolves away from reservations. This Comment argues that the Tribes can protect and perpetuate reservation wolves as a component of inherent sovereignty. Wisconsin must implement a wolf policy that respects that sovereignty, including a hunt-free “buffer zone” of some wolf territory directly adjoining the reservation. However, the Tribes’ claim to protect all shared wolves is untenable, as tribal rights over wolves away from the reservation are much weaker. But the Tribes have rights correlated to those wolves and are entitled, at minimum, to a policy that ensures species survival; additionally, the Tribes can consider other options to protect wolves. Ultimately, this Comment proposes that both sovereigns can and should resolve this conflict through negotiation, continuing the tradition of cooperative management, and avoiding lengthy and expensive litigation.

Nick Reo and myself have a short response to the paper coming out in the online version of the Wisconsin Law Review soon.

“Tribes Win Big on Major Water Dispute in Nevada”

December 20, 2013Matthew L.M. Fletcher

Here.

An excerpt:

Indian Tribes in eastern Nevada received a great victory in a long-standing fight to protect their sacred lands and water from being drained and converted into a barren dust bowl by Las Vegas and the Southern Nevada Water Authority (SNWA).

Since the late 1980s, Las Vegas water officials have pushed plans to import groundwater from across eastern Nevada to supply future growth and provide a backup supply to the Las Vegas Valley, which gets 90 percent of its drinking water from an overtaxed and drought-stricken Colorado River. Water authority officials hope to deliver water to the valley from as far north as Great Basin National Park through a network of pumps and pipelines stretching more than 300 miles and costing as much as $15 billion. The attorney for SNWA has aptly called this the “largest water case in Nevada’s history”.

On December 10, 2013 the Seventh Judicial Court of Nevada in Ely reversed the Nevada State Engineer’s decision to grant SNWA virtually all of the groundwater in eastern Nevada water basins (about 84,000 acre feet annually). The Court ruled that the amount of water awarded had to be reduced and recalculated. Importantly, the Court also agreed with the Tribes that the monitoring and mitigation approved by the State Engineer had to be revised to include more participants and have more detailed standards to protect against environmental damage from draining groundwater from the basins.

Fletcher Paper on the Seminole Tribe and the Origins of Indian Gaming

December 20, 2013December 20, 2013Matthew L.M. Fletcher

At the invitation of Alex Pearl and the FIU Law Review to write a symposium piece on Florida Indian history and law, a challenge for me since I know very little about it, I came up with “The Seminole Tribe and the Origins of Indian Gaming.” Assuming the law review finds it publishable, it will appear in the FIU Law Review alongside the work of luminaries like Siegfriend Weissner and Sarah Krakoff.

Here is the abstract:

The Seminole Tribe of Florida has played perhaps the most important role in the origins and development of Indian gaming in the United States of any single tribe. The tribe opened the first tribally owned high stakes bingo hall in 1979. The tribe in 1981 was involved in one of the earliest lower court decisions forming the basis of the legal theory excluding most states from the regulation of high stakes bingo, a theory that Congress largely codified in the Indian Gaming Regulatory Act (IGRA) years later. The tribe was a party to the Supreme Court decision in 1996 that radically altered the bargaining power between tribes and states over the negotiation and regulation of casino-style gaming under IGRA. And more recently, the tribe has been a leading participant in negotiations and litigation over the regulatory landscape of Indian gaming after the 1996 decision. The Tribe is one of the most successful Indian gaming tribes in the nation.

This paper traces that history, but also offers thoughts on how the culture and traditional governance structures of the Seminole Tribe played a part in its leadership role in the arena of Indian gaming.