Inland Hunting and Fishing

DOI Consultation Notice on DOI Reorganization

Sarah M Donnelly

Download(PDF): Tribal Listening Sessions on E.O. 13871: Reorganization of the Executive Branch

Acting Assistant Secretary for Indian Affairs, Michael S. Black, invites Tribal leaders to attend one of the listed listening sessions to provide input on improving “efficiency, effectiveness, and accountability” at the Department of the Interior.

DATES

Nez Perce Files Suit Over Final Decision in Clear Creek Project

Sarah M Donnelly

Download complaint here.

Link to news coverage here.

Oregon CoA Affirms Illegal Hunting Conviction for Nez Perce Member

Sarah M Donnelly

Download decision here.

By using State v. Buchanon, 978 P.2d 1070 (Wash. 1999), the Oregon courts held that treaty hunting can only happen on traditional hunting grounds.  The bighorn sheep were taken on land south of the Powder River, which state witnesses testified was the Nez Perce Tribe’s southern border due to historical conflicts with the Northern Paiutes.

Defendant was charged in November 2008 after bringing the sheep to the Oregon Department of Fish and Wildlife for tagging so they could be stuffed.

The case is State v. James Bronson, Jr., 586 P.3d 154 (Ore. Ct. of App. 2016).

 

Canadian Supreme Court Issues Decision in Tsilhqot’in First Nation Land Claim

Kate Fort

Decision here

Held: The appeal should be allowed and a declaration of Aboriginal title over the area requested should be granted. A declaration that British Columbia breached its duty to consult owed to the Tsilhqot’in Nation should also be granted.

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In finding that Aboriginal title had been established in this case, the trial judge identified the correct legal test and applied it appropriately to the evidence. While the population was small, he found evidence that the parts of the land to which he found title were regularly used by the Tsilhqot’in, which supports the conclusion of sufficient occupation. The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supports an inference of continuous occupation. And from the evidence that prior to the assertion of sovereignty the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, he concluded that the Tsilhqot’in treated the land as exclusively theirs. The Province’s criticisms of the trial judge’s findings on the facts are primarily rooted in the erroneous thesis that only specific, intensively occupied areas can support Aboriginal title. Moreover, it was the trial judge’s task to sort out conflicting evidence and make findings of fact. The presence of conflicting evidence does not demonstrate palpable and overriding error. The Province has not established that the conclusions of the trial judge are unsupported by the evidence or otherwise in error. Nor has it established his conclusions were arbitrary or insufficiently precise. Absent demonstrated error, his findings should not be disturbed.

APTN story here.

CBC here.

Supreme Court of Canada Denies Leave to Appeal in Hirsekorn v. R

Kate Fort

Here.

Coverage here.

OTTAWA – The Supreme Court of Canada has refused to hear an appeal involving Metis hunting and fishing rights in Alberta.

The Metis Nation of Alberta had filed arguments on behalf of hunter Garry Hirsekorn that challenged a lower court ruling that restricted hunting rights to around northern Metis settlements.

MN DNR Releases 1,800 page Environmental Impact Statement for Proposed Copper-Nickel Mine Located in 1854 Treaty Ceded Territory

Victoria Sweet

The Bois Forte, Grand Portgage, and Fond du Lac tribes, along with GLIFWC and the 1854 Treaty Authority have raised concerns about the impact of this project. The proposed mine exists within territory ceded by the tribes in the 1854 Treaty. The tribes reserved usufructuary rights in the area.

The public comments period began with the release of the document. At least 3 public hearings will be held.

Link to the Environmental Impact Statement here.

Press coverage here.

Excerpt from article:

In September, staff from all three Chippewa bands, the Great Lakes Indian Fish and Wildlife Commission and the 1854 Treaty Authority submitted a 100-page “cumulative effects analysis” outlining their objections to the revised environmental-impact statement.

The tribes were included in the process both times as “cooperating agencies,” which meant an advisory role with no direct control over the data collection, writing or editing for the statement. Still, their influence on the latest draft is easy to spot.

This level of tribal engagement is not limited to the PolyMet project or the Minnesota tribes, says Nancy Schuldt, the Fond du Lac water-projects coordinator: “Today, tribes are exercising environmental authorities to a greater extent. There has been a tremendous amount of capacity building in terms of tribal staff and expertise to actually follow up on our request for a seat at the table when decisions like this are being made.” . . .

The mining of iron ore, meanwhile, has been altering northern Minnesota ecosystems for more than a century, and Schuldt wants that to be the starting point for any conversation about the impact of mining what is sometimes called nonferrous, or noniron, metals.

In northern Minnesota, copper, nickel and other nonferrous metals are embedded in rock that also contains sulfide. (That’s why this kind of mining is often called sulfide mining.) When you expose the rock to air and water, sulfuric acid is created. It’s the acid runoff from the exposed rock that somebody will have to be watching and treating for hundreds of years.

In their response to a recent draft, the tribal cooperating agencies write that current and historic mining activities have “profoundly and, in many cases, permanently degraded vast areas of forests, wetlands, air and water resources, wildlife habitat, cultural sites and other critical treaty-protected resources within the 1854 Ceded Territory.”

If the PolyMet proposal promises pollution control, the position of the tribes is, we don’t buy it.

“The State of Minnesota has existed for 155 years,” they write. “The United States of America has existed for 237 years. The notion that a mining company and financial assurance instruments will be available to work on a mine site 500 years from now is not believable.”

Tribes and the Michigan Wolf Hunt

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The Michigan Natural Resources Commission has approved a wolf hunting season here in Michigan, just one day after Governor Snyder signed legislation authorizing the Commission to determine whether to allow such hunting.

In recent years, Anishnaabe tribes (Ojibwe, Potawatomi, and Odawa) in Michigan, Wisconsin, and Minnesota have opposed state-sanctioned wolf-hunting.  Wolves are important in the religious teachings of Anishnaabe people, and it is often said that the Ma’iingun (wolf) and the Anishnaabe are brothers whose fates are linked.

Senator Casperson of Escanaba,  the primary sponsor of the legislation, dismissed tribal religious concerns during the process, stating:

“I don’t know how you negotiate that, because that’s a personal belief they have. But at the end of the day, I do think many people don’t hold that same belief, so what do we do. Do we hold fast to it because the tribes say it’s sensitive to them, when many of my citizens don’t hold that same value?”

Aside from the Senator’s ironic statement, some Michigan tribes have also based their objections on the legal relationship between the tribes, the state, and the United States.  The 1836 Treaty of Washington reserved the hunting, fishing, and gathering rights of what are now five of Michigan’s Ojibwe and Odawa tribes throughout much of the State of Michigan.  In 2007, those five tribes and the State entered into a court-approved agreement to clarify tribal rights on lands ceded under that treaty.

Section 22 of the 2007 Agreement addresses tribal “activities designed to restore, reclaim, or enhance fish, wildlife or other natural resources within the inland portion of the 1836 Ceded Territory through stocking, rearing, habitat improvement, or other methods.”

Section 23 of the 2007 Agreement addresses consultation between the tribes and the State.  In particular, Section 23.4 provides:

“23.4 The State and the Tribes shall notify each other at least annually of proposed regulatory changes (including changes in management units or methodologies for determining the allowable harvest of any species) before they take effect (except where, due to an emergency or other matter beyond the control of the Parties it is not possible to provide advance notice) and seek to resolve any concerns arising from such changes before implementing them. Upon request, the State and the Tribes shall share information regarding the rationale for such changes and their anticipated effects (e.g., changes in species abundance, distribution, or age or sex ratios). Upon request, the State and the Tribes shall provide similar information for any existing regulation, management unit or allowable-harvest methodology. The information provided shall be sufficiently detailed to enable the other Parties to fully understand the regulation, management unit or allowable-harvest methodology at issue and any underlying data associated with it, and to enable them to make constructive suggestions for improvements to such regulation, management unit or harvestable surplus methodology.”

I am citing these provisions to highlight one basis of tribal opposition to the State’s proposed authorized wolf hunt.  I am not privy to information regarding the level of consultation between the tribes and the State, and whether the State has satisfied its obligations under the 2007 Agreement.  That issue may well be decided in the near future.

I can say that merely including tribes in a general public comment process does not fulfill tribal consultation requirements at either the state or the federal level.  That is not the legally appropriate forum in which to address tribal treaty rights.  If that is the extent to what occurred with the wolf hunt, I’m not sure that all of the tribes that were parties to the 2007 Agreement would believe that the State has fulfilled its obligations.

Lastly, the rights reserved in the 1836 Treaty necessarily include the right to protect habitats and ecosystems that would support hunting, fishing, and gathering.

It is well-documented that wolves are considered a “keystone” species in their natural habitat (which includes most of northern Michigan).  This means that their existence and well-being affects the health and well-being of many other species of plants and animals in their ecosystem.

To the extent that Michigan’s state-sanctioned wolf-hunt impacts tribal rights to hunt, fish, and gather other species, then those tribes may have a valid basis for challenging the size and scope of the hunt.

*Any views expressed in this post are solely those of the author, and not representative of any tribes or other organizations.