The opinion and coverage is on Indianz, and here are the briefs:
Environmental
GTB Supports Deer Baiting Ban
From the TC Record-Eagle:
TRAVERSE CITY — Some Michigan politicians want to lift a ban on using bait to lure deer during hunting season in lower Michigan.
State officials banned baiting over fears it could help spread a deadly deer disease, but politicians who oppose the restriction said those who grow and sell bait crops could suffer financially.
State Sen. James Barcia, D-Bay City, plus state Reps. Joel Sheltrown, D-West Branch, and Jeff Mayes, D-Bay City, sponsored similar resolutions in the Michigan legislature this week to urge state officials to rescind a ban enacted after a deer at a private ranch in Kent County tested positive last month for chronic wasting disease.
The politicians contend state officials overreacted.
***
Not everyone agrees.
The Grand Traverse Band of Ottawa and Chippewa Indians supports the baiting ban. Michigan’s wild deer herd is a valuable natural resource for the public and the tribe, said Hank Bailey, a tribal fish and wildlife technician and elder tribe member.
“If they bow to this, they are jeopardizing that resource,” Bailey said, adding he fully expected politicians to meddle in the decision.
Swinomish Wins Salmon Protection Case
The district court held that the Skagit County Dike District No. 22 violated the Clean Water Act and the Endangered Species Act in the construction of tide gates in the Skagit River delta that injured salmon habitat. The case is Swinomish Indian Tribal Community v. Skagit County Dike Dist. No. 22 (opinion here).
Law Journal Symposium on Climate Change and the Polar Regions
Sustainable Development and Policy, a law journal published at American University’s law school, has published an entire symposium issue on climate change and the polar regions (here).
At least two of the articles involve discussion of Indigenous peoples:
Ford, Supporting Adaptation: A Priority for Action on Climate Change for Canadian Inuit (p. 25)
Kazarian, The Forgotten North: Peoples and Lands in Peril (p. 46)
Miccosukee Everglades Challenged Dismissed on Standing Grounds
Benjamin Richardson on Indigenous Peoples and Environmental Governance
Benjamin Richardson has posted “Ties That Bind: Indigenous Peoples on Environmental Governance” on SSRN. This paper is forthcoming in the book, “Indigenous Peoples and the Law: Comparative and Critical Perspectives.” Here is the abstract:
Canvassing practices in many countries, this chapter analyses the relationships between Indigenous peoples and environmental governance. It examines the environmental values and practices of Indigenous peoples, primarily in order to assess their implications for the Indigenous stake in environmental governance. It identifies at least six major theories or perspectives concerning Indigenous environmental values and practices. Secondly, the chapter reviews the legal norms and governance tools that structure Indigenous involvement in environmental management, in order to assess their relative value for Indigenous stakeholders and implications for sustainable utilisation of natural resources.
2008 Term Preview: The Long Conference — September 29, 2008
On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.
1. Hawaii v. Office of Indian Affairs (07-1372)
This petition has a fairly good chance to be granted.
The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).
2. Ho-Chunk Nation v. Wisconsin (07-1402)
I don’t think this one has much chance to be granted.
It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)
3. Kemp v. Osage Nation (07-1484)
This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.
Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.
4. Kickapoo v. Texas (07-1109)
This one has a slight chance for a grant.
I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.
Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.
5. Klamath Tribes v. PacificCorp (07-1492)
This one has no chance.
First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦
6. Matheson v. Gregoire (08-23)
Again, no chance.
First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.
7. South Fork Band v. United States (08-100, 08-231)
No chance.
This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.
8. United States v. Navajo Nation (07-1410)
Very, very good chance for a grant.
First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).
Either way you have a grant.
NYTs on Havasupai Grand CanyonFlood
From the NYTs:
FLAGSTAFF, Ariz. — Federal and state officials are reviving a proposal to install a warning system for the isolated Havasupai Indian Reservation after a flood last month through a reservation campground at the bottom of the Grand Canyon sent hundreds of tourists scrambling for their lives.
The United States Geological Survey first proposed the early-warning system, with flow gauges 40 miles upstream from the reservation, in 1995, but the proposal was scuttled because of lack of money, said Bob Hart, a survey supervisory hydrologist in Flagstaff.
Now, Mr. Hart said, “There is some interest.”
Gov. Janet Napolitano of Arizona, a Democrat, said last week that she supported an early-warning system and was encouraging state, county and federal agencies to develop a plan to build and maintain a series of stream-flow gauges and satellite transmission devices, estimated to cost $100,000.
In the last 100 years at least 16 major floods have coursed through the reservation, which is eight miles from the nearest paved road and has its mail delivered by mule train. The Havasupai village of Supai is a popular destination for hikers visiting the Grand Canyon, as is the reservation’s campground, which is about two miles downstream.
NYTs on Gila River Water Rights
From the NYTs:
GILA RIVER INDIAN COMMUNITY, Ariz. — More than a hundred years ago, the Gila River, siphoned off by farmers upstream, all but dried up here in the parched flats south of Phoenix, plunging an Indian community that had depended on it for centuries of farming into starvation and poverty.
If that was not bad enough, food rations sent by the federal government — white flour, lard, canned meats and other sugary, processed foods — conspired with the genetic anomalies of the Indians to sow an obesity epidemic that has left the reservation with among the highest rates of diabetes in the world.
Now, after decades of litigation that produced the largest water-rights settlement ever in Indian country, the Indians here are getting some of their water back. And with it has come the question: Can a healthier lifestyle lost generations ago be restored?
Reviving the farming tradition will prove difficult, many tribal members say, because the tribes, who number 20,000, including about 12,000 on the reservation, have not farmed on a big scale for generations. Fast food is a powerful lure particularly for the young, and the trend of late has been to move off the reservation, to work or live.
Jackie Hand on Climate Change Threat to American Indians
Jacqueline Hand has published “Global Climate Change: A Serious Threat to Native American Lands and Culture” in the Environmental Law Reporter. Here is the abstract:
During the past decade, public perception of global climate change has transformed from a gloom and doom scenario not to be taken seriously to a nearly universally recognized peril to the planet. Native Americans, especially those in the Arctic region, experience changes in climate with greater immediacy than the general population, and this disproportionate result is expected to become more severe as the effects of climate change escalate. This Article will explore the nature of the impact of climate change on Native Americans, the importance of including traditional tribal knowledge and expertise in understanding the crisis and developing adaptive mechanisms, and the responses by individual tribes as well as by indigenous people as a whole.
Turtle Talk 
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