Environmental

Lloyd Miller: A New Deal for Native America

Matthew L.M. Fletcher2 Comments

From Lloyd Miller, partner in the law firm of Sonosky, Chambers, Sachse, Endreson & Perry, LLP:

In only two months President Obama has already begun to make his mark in forging a new era in Native American affairs.  After eight years marked mostly by neglect, this is welcome news, for Tribal leaders have been yearning for the profound change that can only come from a committed White House — change that calls upon the Nation not only to remember its forgotten First Americans, but to craft a new deal that embraces tribal governments as true partners in the Nation’s family of governments.  Under President Obama, all indications are that this new deal will include promoting genuine tribal self-determination, honoring the unique place Indian Tribes occupy under the Constitution, and honoring fully the trust responsibility born of treaties and the Nation’s tragic early history with Indian Tribes.

Most Americans are only dimly aware of today’s tribal governments, and for many that knowledge is limited to casinos.  Few know that less than one-half of America’s 562 Tribes actually operate gaming facilities of any kind (nearly half of them in California).  Few know that, of those that do, the well-known top 10% account for over 50% of total tribal gambling revenues, while roughly half the Tribes account for less than 10%.  The fact is, across Native America gambling is commonly little more than a breakeven proposition, providing local employment and moderately enhanced health, educational and public services.

Still, popular interest in Indian gambling has eclipsed the real picture of Native America, which remains largely out of the public eye: communities living in third world conditions without basic running water or sanitation and suffering disproportionately high rates of communicable diseases; reservations and villages with little physical infrastructure; child suicide rates 2.5 times the national average (and for teens in some regions, 17 times the national average); overwhelmed law enforcement and justice systems funded at 40% the national average, with half of all offenders on the street due to dangerously overcrowded facilities; and crumbling schools with over $800 million in deferred maintenance, producing children who score lower in reading, math and history than every other ethnic group in America.

Although in many places conditions are improving, for too many in too many places America has gravely neglected its First Americans.
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Blumm and Steadman on the Judge Martinez Treaty Fishing Decision

Matthew L.M. Fletcher

Michael Blumm and Jane Steadman have posted “Indian Treaty Fishing Rights and Habitat Protection: The Martinez Decision Supplies a Resounding Judicial Reaffirmation” on SSRN. Here is the abstract:

In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a “servitude upon every piece of land.” We have described this servitude as a “piscary profit,” a familiar property right at common law that must be exercised free from unreasonable interference. While the universally shared assumption at the time the treaties were signed was that the salmon resource was inexhaustible, in fact the salmon have been in precipitous decline since the late-1800s. This scarcity bred conflicts, which have forced the tribes to enforce their treaty fishing right in the courts for over a century.

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Third Update in Native Village of Kivalina v. Exxon

Matthew L.M. Fletcher3 Comments

The hearing on the motion to dismiss is tentatively set for May 19, 2009, at 1 PM, according to this filing: oil-companies-re-notice-of-motion-to-dismiss

The complaint and the relevant motions are here.

Building Project on St. Mary’s River Rejected

Matthew L.M. Fletcher

Here is the opinion in Schmidt v. Army Corps, from the Western District of Michigan, in which the court upheld a decision by the Army Corps not to allow a building project on the St. Mary’s River, near what the Chippewa Ottawa Resource Authority says is a fish spawning ground.

schmidt-memo-opinion

Student Paper on Gaming and Environmental Law

Matthew L.M. Fletcher

The Boston College Environmental Affairs Law Review has published “Betting the Rancheria: Environmental Protections as Bargaining Chips Under the Indian Gaming Regulatory Act,” by Matthew Murphy. You can access the article here, but it begins on page 171 of the pdf, which takes some time to download. Here is the abstract:

In 2005, the State of California and the Big Lagoon Rancheria American Indian Tribe reached an agreement whereby the tribe agreed to forego development plans for a casino on environmentally sensitive lands in exchange for the right to build a casino in Barstow, California. In January 2008, the Department of the Interior denied the Rancheria’s land-into-trust application for land in Barstow based on the Department’s newly issued “commutable distance” memorandum. This denial represents a missed opportunity to allow California and the tribe to cooperate in fashioning a workable tribal-state compact. The Department should abandon the guidance memorandum and allow tribes to pursue off-reservation gaming in appropriate instances where the proposed development enjoys political support at the local level. In exchange, states should be afforded greater deference under the Indian Gaming Regulatory Act to achieve some level of regulatory control to address the off-reservation impacts of casino development.

Eleventh Circuit Denies Stay in Miccosukee v. South Florida Management District

Matthew L.M. Fletcher

Talk about complicated. There are two independent lawsuits captioned Miccosukee Tribe v. South Florida Water Management District. They are the so-called “S-2” case and the “S-9” case. Both involve the moving of dirty water around the Everglades, just different pipes or canals or whatever.

S-9 went to the Supreme Court a few years back (opinion). S-2 went to trial in 2006. It’s on appeal before the CA11. The S-9 district court proceedings are stayed pending that appeal. The Tribe appealed that stay order and now the Eleventh Circuit rejects the appeal — opinion.

So we’ll wait to see how the CA11 decides the S-2 case.

Supreme Court Denies Cert in Winslow Friday and Mercury Cases

Matthew L.M. Fletcher

Here is the order. The Friday listing is on page 7. And the mercury case (Utility Air Regulatory v. New Jersey) is on page 4.

Cortez Hills Gold Mine Injunction Denied

Matthew L.M. Fletcher

Here is the opinion — south-fork-band-v-doi-dct-order

And here are the materials from an earlier post.

Friday v. U.S. Cert Petition — Not a “Petition to Watch” — Commentary

Matthew L.M. Fletcher2 Comments

Tomorrow the Supreme Court likely will deny cert in the Friday v. United States petition. SCOTUSblog does not pick it as a “petition to watch”, which means something. There was a moment when the Supreme Court might have heard this case (and maybe not in a good way, since the United States would be the petitioner then), but the Tenth Circuit joined the Ninth Circuit in upholding the constitutionality of the Bald Eagle Protection Act.

The ironic, even ridiculous, result of these cases is that it is easier for non-Indians to take advantage of the American Indian religious exemptions than it is for Indians. Yesterday, Indianz reported on one such case favoring non-Indians. Here is the argument:

Samuel Wilgus Jr and Raymond Hardman were convicted of possessing feathers without a federal permit. But since they are not enrolled in a federally recognized tribe, they wouldn’t have been able to obtain one. The scheme violates the Religious Freedom Restoration Act, Judge Dee Benson ruled. The men say they are practitioners of Native American religions.  (emphasis added) [Here is the opinion — Wilgus Order]

So, what this means is that the very existence of a regulatory/statutory mechanism for Indians to acquire eagle parts under the Protection Act through the National Eagle Repository — a mechanism that is incontrovertibly useless, a fact that Indian people could conceivably prove (but apparently not a “constitutional fact”) — means that the statute does not violate the Religious Freedom Restoration Act. But for non-Indians, who can never take advantage of the Repository (and, perhaps, Indian religions), it is a constitutional violation.

I’ve convinced myself. It is ridiculous.

NYT’s Article on Green Energy in Alaska

Matthew L.M. Fletcher

From the NYTs:

TOKSOOK BAY, Alaska — Beyond the fishing boats, the snug homes and the tanks of diesel fuel marking this Eskimo village on the Bering Sea, three huge wind turbines tower over the tundra. Their blades spin slowly in a breeze cold enough to freeze skin.

One of the nation’s harshest landscapes, it turns out, is becoming fertile ground for green power.

As interest in cleaning up power generation grows around the country, Alaska is fast becoming a testing ground for new technologies and an unlikely experiment in oil-state support for renewable energy. Alaskans once cast a wary eye on anything smacking of environmentalism, but today they are investing heavily in green power, not so much to reduce emissions as to save cash.

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