Jason Sanders on Wisconsin’s Mi’ingan Hunt

Anishinaabe law student and scholar Jason Sanders has posted, “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt,” his student note forthcoming 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.

Sixth Circuit Rejects Challenge to Eagle Mine

Here are the materials in Huron Mountain Club v. United States Army Corps of Engineers:

CA6 Unpublished Opinion

Huron Mountain Brief

Federal Brief

Kennecott Eagle Minerals Company Brief

Huron Mountain Reply

An excerpt:

Plaintiff-Appellant Huron Mountain Club (“HMC”) appeals the district court’s denial of its motion for injunctive relief, which sought to enjoin Kennecott Eagle Minerals Company (“Kennecott”) from constructing and operating the Eagle Mine (“Eagle Mine” or “the Mine”), a nickel and copper mine in Marquette, Michigan, and compel the United States Army Corps of Engineers1 (the “Corps”) to “administer” the federal permitting programs under the Rivers and Harbors Act (“RHA”), 33 U.S.C. § 403, and the Clean Water Act
(“CWA”), 33 U.S.C. § 1344. We AFFIRM.

Lower court materials here.

Shale Gas Company (SWN) Loses Bid for Injunction to Halt N.B. Protests

Just a few hours ago, “[a] request by SWN Resources Canada to extend a court injunction that prevents anyone from impeding its exploration activities in New Brunswick has been denied by a judge.  Justice George Rideout issued a ruling Monday afternoon after hearing arguments in the Court of Queen’s Bench on Friday. Rideout did not state his reason in court, but said he would issue a written decision.”  Click here for the story from CBC news.

New Brunswick Fracking Protests: Frontline of a Democratic Fight

Click here for a great article from Martin Lukacs.  “Images of burning cars and narratives about Canadian natives breaking the law obscure the real story about the Mi’kmaq people’s opposition to shale gas exploration.”

Report on the Polar Law Conference and Arctic Circle Conference in Iceland – Long

I just returned from Iceland, where I participated in the 6th annual Polar Law Conference and the inaugural Article Circle Conference. The events drew an impressive array of speakers. It was almost a “who’s who” in Arctic affairs, bringing in heads of state, ambassadors, special envoys, lawyers, scholars, business executives, scientists, activists, students, and other interested people. Coverage of both events can be found online.

Polar Law Conference

Arctic Circle Conference

Instead of simply reviewing the events, I thought I’d mention a few of the presentations and events that were of particular interest to me and that might be interesting to some of you.

This is the second time I have attended the Polar Law Conference. I was impressed both times with how open the attendees are to discussing the implications of Arctic development on the Indigenous peoples who reside in Arctic regions. In fact, I found myself engaged in fascinating discussions with legal scholars from many locations who do not understand the U.S. domestic legal policies toward tribes (does anyone truly understand this?) as well as what appears to the international community as the United States’ hesitance to apply UNDRIP, join ILO 169 or UNCLOS, or apply international customary law norms in US courts. Even more interesting are the discussions on how Indigenous groups around the world are dealing with issues that face us all such as: access to sacred sites, protection of subsistence rights, violence against women, preservation and protection of cultural knowledge, among other things.

Here are some highlights from presentations made at both conferences:

Timo Koivurova, Director of the Northern Institute for Environmental and Minority Law, referred to the evolving indigenous law regime that is developing internationally and the need for this regime to trickle down to the domestic level to be truly effective.

Antje Neumann, Researcher at the Univ of Akureyri and PhD Candidate at the University Tilburg presented a compelling paper on the role of Indigenous knowledge in environmental protection and how assisting Indigenous groups to preserve traditional knowledge may benefit all nations when working on ways to protect and preserve the environment.

Kári á Rógvi, Member of Parliament, Faroe Islands spoke on the struggles that Faroe Islanders face as a self-governing nation under the sovereign authority of Denmark. The similarities in legal struggles between the Faroe Islands and Tribes in the US were striking, and Kári and I both agreed that we might be able to learn much from each other since the issues we face are quite similar.

Leena Heinämäki, Research Fellow, Northern Institute for Environmental and Minority Law, shared a project she is involved with on reclaiming sacred natural sites of Indigenous Peoples in the Circumpolar Arctic. Researchers from various countries are bringing together the similarities and differences that Indigenous Peoples in all Arctic countries are facing, and trying to created a unity of purpose between these groups.

Mara Kimmel, an Alaskan attorney and PhD Candidate, Central European University, gave a fascinating paper called “Land, Governance and Well-Being – An Alaskan Case Study.” Her PhD thesis will be coming out soon, and I am looking forward to reading about Alaska Native land claims, governance issues, and the link to the well-being of the people. Since my presentation had to do with human security issues for Indigenous communities in Alaska and Canada related to economic development, we found a lot of cross issues between human security and the ability to self-govern effectively.

Aqqaluk Lynge, Chair, Inuit Circumpolar Council spoke about the question of whether Indigenous people in the Arctic will thrive or just survive. He said that he is not yet convinced that the Arctic will become a place of peace. He challenged the international community to focus on honesty, integrity, transparency and accountability in its dealings with Indigenous Peoples.

Edward Itta (Inupiaq), Commissioner, U.S. Arctic Research Commission gave a powerful presentation. He wanted to know how the Inupiaq can participate more meaningful in economic opportunities. Perhaps, as he said, it is time for Indigenous peoples to ponder a challenge to the current status quo. As he also said, the Inupiaq “degree” in the Arctic world is their survival!

Gudmundur Alfredsson, Univ of Akureyri (and influential part of the creation of UNDRIP), chaired the session where Mr. Itta spoke. He pointed out the less-than-stellar human rights and Indigenous rights records that many of the Arctic states have. He said that it might be time for the world to start focusing on the North and these important issues. He also took a moment and had every Indigenous person in the audience raise their hands. While there were numerous hands raised, we were still quite a small minority. He said that maybe next year we can do better.

The conference had many memorable moments, from the moment when the director of Greenpeace confronted President Putin’s Special Envoy about the arrest of the 30 Greenpeace protestors to the Google Maps presentation showing the in-depth mapping of the ocean to the gorgeous northern lights display (thanks to Mother Nature for that). It was worth the time to attend.

It would be great to see a stronger representation of Alaska Natives getting their voices heard at these conferences along with other legal scholars from the U.S. While I understand that many in the U.S. do not find it worthwhile to spend much time on the international scene, and it is often cost prohibitive, I think we have a unique opportunity related to the Arctic. The attention of the world is turning to that region, and right now we have an opportunity to have our voices heard. Further down the line, the policies will be set and we will be stuck trying to change the practices that we disagree with. Right now we may be able to influence them from the start. It’s something to consider.

State of Washington’s Opening Brief in Ninth Circuit Appeal of Culverts Decision

Here:

State’s Opening Brief

Update: Oregon Amicus

Lower court materials are here.

Federal Court Dismisses Hopi Suit for US Trust Breach over Arsenic Levels in Water

Here are the materials in Hopi Tribe v. United States (Fed. Cl.):

1 Complaint

10 US Motion to Dismiss

13 Hopi Response

13-1 Puhuyesva Affidavit

13-2 Marley Affidavit

15 US Reply

18 DCT Order Dismissing Complaint

An excerpt:

Plaintiff, an Indian tribe, brought this suit to recover damages for breach of trust. The alleged breach consists of defendant’s supposed failure to ensure that the water supply on plaintiff’s reservation contains safe levels of arsenic. Before the court is defendant’s motion to dismiss for lack of subject-matter jurisdiction, in which defendant asserts that plaintiff has failed to identify an applicable fiduciary duty. The central legal question in this case, therefore, concerns the precise scope of the federal government’s duties as trustee with respect to Indian trusts. See generally United States v. Mitchell (Mitchell I), 445 U.S. 535 (1980). The answer to this inquiry has a long and sometimes acerbic pedigree. But there are some constants.

To be sure, the very notion of a tribal trust relationship is intertwined with the sovereignty of the United States: “Throughout the history of the Indian trust relationship, we have recognized that the organization and management of the trust is a sovereign function subject to the plenary authority of Congress.” United States v. Jicarilla Apache Nation, 131 S.Ct. 2313, 2323 (2011) (citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 169, n.18 (1982); United States v. Wheeler, 435 U.S. 313, 319 (1978); Winton v. Amos, 255 U.S. 373, 391 (1921); Lone Wolf v. Hitchcock, 187 U.S. 553, 565–66 (1903); Cherokee Nation v. Hitchcock, 187 U.S. 294, 308 (1902); United States v. Cadelaria, 271 U.S. 432, 439 (1926); and Tiger v. Western Investment Co., 221 U.S. 286, 315 (1911)). As will become clear, in this case, plaintiff has failed to show that Congress has defined the federal government’s trust duties in such a way as to authorize plaintiff’s suit for damages in this court. Accordingly, the court must grant defendant’s motion to dismiss.

Swinomish Prevails in Washington COA Challenge to State Dept. of Ecology in Matter Affecting Treaty Rights

Here is the opinion in Swinomish Indian Tribal Community v. Washington Dept. of Ecology (PDF).

An excerpt:

This case involves the validity of an amended rule from the Department of Ecology (Ecology) that reserves water from the Skagit River system for future year-round out-of-stream uses, despite the fact that in times of low stream flows these uses will impair established minimum instream flows necessary for fish, wildlife, recreation, navigation, scenic and aesthetic values. Ecology relies on RCW 90.54.020(3)(a) for authority to make the reservations of water despite the existing minimum flows. This statutory provision allows impairment of stream base flows when overriding considerations of public interest are served. The Swinomish Indian Tribal Community (Tribe) petitioned for review in superior court, challenging the validity of Ecology’s amended rule reserving the water.

Available briefs here:

Tenth Circuit Briefs in Challenge to EPA Decision re: Four Corners Power Plant at Navajo

Here are the briefs in Wildearth Guardians v. EPA:

Wildearth Guardians Opening Brief

Arizona Public Service Co. Brief

EPA Brief

Wildearth Guardians Reply Brief

Property & Environment Research Center on Native (Lack of) Property Rights

Here’s an interesting perspective from PERC. It’s hard to tell if it’s a termination/allotment perspective dressed up in new clothes or a true self-determination perspective.