treaty rights – Page 16

Minnesota COA Refuses to Shut Down Enbridge Line 3

February 8, 2021Matthew L.M. Fletcher

Here is the order:

2021-02-02 Order Denying Stay

Crow Tribe Attempts to Reopen Crow Treaty Rights Suit

February 4, 2021Matthew L.M. Fletcher

Here is the motion in Crow Tribe v. Repsis (D. Wyo.):

70 Crow Tribe Motion

An excerpt:

But that was not the end of the story. In 2014, Clayvin B. Herrera, a Crow Tribe member, along with other Crow Tribe members in his hunting party, took three elk in the Bighorn National Forest. Mr. Herrera was cited for, and convicted of, violations of Wyoming hunting laws. Mr. Herrera’s case went all the way to the U.S. Supreme Court, which held that the Crow Tribe’s off-reservation treaty hunting right was not extinguished by Wyoming’s statehood. Herrera v. Wyoming, 139 S. Ct. 1686, 1700 (2019). In so doing, the Court also held “that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood.” Id. at 1697. Today, this Court has the opportunity to relieve the Crow Tribe from the judgment, based on Race Horse, that it entered more than 25 years ago.
This is precisely the sort of circumstance that Federal Rule of Civil Procedure 60 was written to remedy. This Court’s Repsis judgment remains in force; but that judgment was based entirely on a case that has been expressly and entirely repudiated by the U.S. Supreme Court, which affirmed the vitality of the very same treaty right that that this Court and the Tenth Circuit found extinct. To allow this Court’s Repsis judgment—which might have been correct when it was made, but now has been unequivocally repudiated by the Supreme Court—to bar the Crow Tribe and its members from legally exercising their off-reservation treaty hunting rights would be a profound injustice. Equity requires that the Crow Tribe, and by extension its members, be relieved from this Court’s Repsis judgment, which this Court should now vacate.

Tulalip, Suquamish, Swinomish, and Upper Skagit Reach Settlement with State on Crab Harvest Estimates

January 28, 2021January 28, 2021Matthew L.M. Fletcher

Here are the materials in United States v. Washington, subproceeding 89-03 (W.D. Wash.):

14809 Joint Stipulation

14810 DCT Order

D.C. Circuit Affirms Order that DAPL Easement is Illegal, but Does Not Require Shutdown of Pipeline

January 26, 2021Matthew L.M. Fletcher

Here is the opinion in Standing Rock Sioux Tribe v. United States Army Corps of Engineers.

An excerpt:

Lake Oahe, created when the United States Army Corps of Engineers flooded thousands of acres of Sioux lands in the Dakotas by constructing the Oahe Dam on the Missouri River, provides several successor tribes of the Great Sioux Nation with water for drinking, industry, and sacred cultural practices. Passing beneath Lake Oahe’s waters, the Dakota Access Pipeline transports crude oil from North Dakota to Illinois. Under the Mineral Leasing Act, 30 U.S.C. § 185, the pipeline could not traverse the federally owned land at the Oahe crossing site without an easement from the Corps. The question presented here is whether the Corps
violated the National Environmental Policy Act, 42 U.S.C. § 4321, by issuing that easement without preparing an environmental impact statement despite substantial criticisms from the Tribes and, if so, what should be done about that failure. We agree with the district court that the Corps acted unlawfully, and we affirm the court’s order vacating the easement while the Corps prepares an environmental impact statement. But we reverse the court’s order to the extent it directed that the pipeline be shut down and emptied of oil.

Briefs here.

Three Tribes Withdraw Laches as a Defense in US v. Washington Subproceeding 17-03

January 20, 2021Matthew L.M. Fletcher

Here are the notices of withdrawal of laches as a defense in United States v. Washington subproceeding 17-03 (W.D. Wash.):

Sub 17-03 Swinomish Indian Tribal Community Notice of Withdrawal of Laches Defense 011921

Sub 17-03 The Tulalip Tribes Withdrawal of Laches Defense 011921

Sub 17-03 Upper Skagit Indian Tribe Withdrawal of Laches Defense 011921

Prior posts here and here.

As I wrote in 2015, I see this as a good thing — the possibility that the laches defense could be used against tribal treaty rights has hung like a smoggy haze over Indian country ever since 2005. It staggers me to think that tribes would do this to themselves for short-term, and probably illusory, gain.