treaty rights

Tulalip Member/Company Seek Mandamus to Bar Searches by Fish and Wildlife Officers

Matthew L.M. Fletcher

Here is the petition in Paul v. Gain (Wash. S. Ct.):

pet-writ-mandamus

An excerpt:

The novel twist in this case is the “gag order” in the Search Warrant. Because recipients of the Search Warrants risk violating a court order if they disclose the Search Warrants, their silence is secured. The Order sealing in perpetuity the Search Warrants Files guarantees that no public scrutiny can ever occur. The “gag-order” and the Order, in combination, create a Star Chamber within which law enforcement officers can operate without accountability, to the extreme detriment of their targets and the public, who may never know who invades their personal affairs, or why. This is particularly true here where Petitioners have already successfully sued the law enforcement agency to secure return of personal property seized via an earlier search warrant arising from the same investigation.

#NoDAPL Turned on its Head

Ann Tweedy1 Comment

Here’s a piece by Terry Anderson & Shawn Regan arguing that the reasons that Standing Rock opposes the pipeline have to with the fact that the Tribe couldn’t benefit economically from DAPL due to stifling federal regulation. This is a very troubling argument that I worry is just 50s-era termination in sheep’s clothing.

WaPo: “In Dakota Access pipeline controversy, Obama’s ties to tribes played pivotal role”

Matthew L.M. Fletcher

Here.

Guest Post — Frank Pommersheim: A Short Inquiry into Pe’ Sla: History, Public Policy, and Moral Imagination

Matthew L.M. Fletcher1 Comment

A Short Inquiry into Pe’ Sla:  History, Public Policy, and Moral Imagination

By Frank Pommersheim

In 2012, several Lakota tribes, including Rosebud, Crow Creek, Standing Rock, and the Shakopee Mdewakanton Sioux of Minnesota purchased a 2,400 acre ranch on the open market.  The purchase price was about $9 million dollars.  The land is located within the western part of South Dakota in a rural portion of Pennington County.

The land is also located within the sacred Black Hills and the historical Great Sioux Nation as recognized in the Fort Laramie Treaty of 1868.  The Lakota name for this area is Pe’ Sla or the ‘Heart of All That Is.’  Tribal plans for the land include historical, cultural, and religious activities, as well as sustainable buffalo ranching.

The Tribal path best suited to these cultural, spiritual, and economic activities involves placing this land into ‘trust’ status.  This process is authorized by § 5 of the Indian Reorganization Act of 1934.  This ‘land into trust’ provision is specifically designed to permit tribes to reacquire some of their land base that was severely reduced (in the amount of 90 million acres) during the time of treaty violations and the allotment process that ran from 1877-1934.

The two major effects of placing land into trust are that the land is no longer subject to local property tax and it becomes part of ‘Indian country’ as defined by federal law at 18 U.S.C. § 1151.  This latter designation establishes an area of substantial federal and tribal jurisdiction and minimal state authority.

The process for placing land into trust requires a tribal application and review by the Bureau of Indian Affairs.  This administrative process requires notice to the public, including county and state governments.  Interested parties may also submit written arguments in favor or in opposition to the tribal application.

The State of South Dakota filed written comments in opposition to the Tribal application.  The essence of the state’s arguments were the loss of real property tax revenue in Pennington County and the creation of confusing ‘checkerboard’ jurisdiction in the affected area.  These arguments were rejected by the Regional Director’s written decision of March 10, 2016.

Key elements of the Bureau of Indian Affairs administrative decision include the following.  The loss of tax revenue in Pennington County is miniscule.  The loss of tax revenue in the amount of $78,887 is .00106% of the total county tax revenue of $7,416,900,664.  The potential jurisdictional problems are real enough, but have already been largely dealt with through a signed memorandum of understanding entered into between the Tribes and Pennington County.  This memorandum of understanding deals with both criminal and civil jurisdiction, not simply in broad generalizations, but also in practical terms of cross-deputization and shared resources.  The BIA decision also emphasizes the important fact that the local government of Pennington County, the government most directly affected by this application, did not oppose it.  Pennington County submitted no arguments in opposition.

Context is also significant and relevant.  In the Pe’ Sla application, the State of South Dakota not only opposes the tribes, but is in direct opposition to its own local county government.  This is striking and profoundly jarring.  The usual South Dakota refrain to keep the federal government out of the loop is now complemented by a desire to keep local government out too.

The Pe’ Sla case is not South Dakota’s first land into trust rodeo.  Indeed, the State of South Dakota has vigorously litigated land into trust cases for the past dozen years.  The State has opposed land into trust applications by the Lower Brule Sioux Tribe, the Sisseton-Wahpeton Tribe, the Crow Creek Sioux Tribe, and the Flandreau Santee Sioux Tribe.  The State lost all four of these cases, despite their appeals all the way to the Eighth Circuit Court of Appeals.  The State even sought review by the United States Supreme Court in the Lower Brule case, but its petition was denied.

Despite this, the State does not seek conversation or dialogue with the Tribes on these matters.  It seeks no common ground.  Apparently, it just prefers to litigate, to use its resources without qualm, and to go as far as necessary to ‘win,’ except that the State has yet to ‘win.’

With this useful history so close at hand, one might think that it is a good time to begin a respectful conversation and public policy dialogue.  Yet the only recent ‘talk’ has been Governor Daugaard’s hurtful and ill-informed comments on the Pe’ Sla case.  During his appearance before the Rosebud Sioux Tribe Council to inform the Tribe of the State’s decision to appeal the case, he opined on the Tribal failure to understand their mistake:

I also oppose the Pe’ Sla land into trust for this reason.  You have many Tribal members who have needs here on the Reservation.  And if Grandma needs housing or if Grandma needs transportation . . . Grandma doesn’t need you to spend tribal resources on a park land setting for religious use or for buffalo agricultural use.  Grandma needs housing.  Grandma needs food.  And so that’s your decision to make . . . not mine.  That’s yours to make.  But I don’t support it . . . For that reason.

While many people consider Governor Daugaard a good and decent man, his comments follow the all too common trajectory of many ‘leaders,’ who have gone before him.  Such state (and federal) ‘leaders’ know what is best for Indians without ever talking to them.  There is no need for conversation, respect, or reconciliation.

Just take care of ‘Grandma’ and forget about your religious heritage.  Take care of ‘Grandma’ and forget about sustainable buffalo ranching.  Just stay back and accept the unjust and impoverished status quo.  Don’t bother us with your efforts to (re)acquire a tiny portion of your sacred lands and to initiate a new sustainable buffalo economy.  Just stay back.  Just stay in your place.

The State of South Dakota is just repeating itself.  Just playing the same old hand of opposition to tribes.  Yet repeating the past is not inevitable.  Co-operative possibilities are not difficult to imagine.  They include such things as a joint park and permanent exhibit that deals with the history of the Black Hills, cooperative agricultural ventures involving buffalo, or a jointly run tourism office.

South Dakota.  Just turn your heart and mind around.  Withdraw your appeal.  Reset your political and moral compass.  Imagine a better, more respectful, and more inclusive future.  Good things are possible.  As Basil Brave Heart wisely encouraged the Governor in the context of the name change of Harney Peak to Black Elk Peak, “When I talk to him, I will say I know you’re frustrated, but I wish you would join us in our celebration.  I would appreciate it if you would embrace and celebrate with us on this great venture.”  Celebration without litigation.  South Dakota should think about it.

NYTs: “Old Treaties and New Alliances Empower Native Americans”

Matthew L.M. Fletcher

Here.

Also, “Feeding the Fight at Standing Rock.”

Attorney Alan Stay on the Culverts Decision

Ann Tweedy

Here. My colleague Alan Stay was integrally involved in bringing the first treaty habitat case in U.S. v. WA, so this article makes for an interesting read.

Washington Supreme Court Ruling in Hirst Protects Instream Flows

Ann Tweedy

In this much anticipated opinion, the Washington Supreme Court has ruled that, in violation of state law, Whatcom County did not ensure the existence of adequate water supplies before issuing building permits. The case will protect stream flows from the “death by a thousand cuts” impact of small wells. Many Washington tribes have sought to protect stream flows from these so-called exempt wells. The opinion is here.

News Profile of the US v. Washington Culverts Decision

Matthew L.M. Fletcher

Here is “License to kill: how Washington may lose its right to wipe out salmon.”

Enbridge pipeline litigation, and its (potential) impact on tribal treaty rights in the Great Lakes

bryannewland

In 2010, Enbridge Energy Partners’ Line 6 Oil Pipeline burst near the Kalamazoo River in southern Michigan, spilling 1.1 million gallons of crude oil into the Kalamazoo River system. At the time, it was the worst inland oil spill in the history of the United States. Later that same year, another Enbridge pipeline burst in Illinois, spilling crude oil into a tributary of the Des Plaines River.

On July 20th of this year, the U.S. Department of Justice and the Environmental Protection Agency filed a lawsuit against Enbridge the U.S. District Court for the Western District of Michigan relating to those spills under various federal statutes – along with a proposed Consent Decree. A Consent Decree is a negotiated court order; and, once entered by the Court, has the force of law.

That Consent Decree addresses a number of issues, and requires Enbridge to take steps to improve the safety of its pipelines – a worthy objective. But, the Consent Decree also addresses Enbridge’s Line 5 Pipeline in northern Michigan in a manner that potentially impacts tribal treaty rights.

The Line 5 Pipeline carries oil through Michigan’s Upper and Lower Peninsulas. To do so, it crosses the bottom of the Straits of Mackinac, which is a narrow stretch of water between Michigan’s two peninsulas, and it links Lake Michigan to Lake Huron. In normal winters, the Straits of Mackinac are completely covered in ice for three months.

This pipeline has been in operation since 1953, and has become increasingly controversial due to its age, Enbridge’s safety record, and the fact that Enbridge has not complied with its requirements to maintain structural supports for the pipeline on the bottom of the Straits. The State of Michigan has been reviewing the pipeline for the past several years, as a number of citizens and groups have called for it to be shut down. A number of Indian tribes have expressed concern about the pipeline, and its potential impact on the Great Lakes and the tribal fishery. NCAI has adopted a resolution in opposition to the Line 5 Pipeline.

A rupture of Line 5 at any time could result an a catastrophic oil spill in the Straits of Mackinac that would impact both Lake Michigan, Lake Huron, and other connected waters. A rupture in the winter would be even more devastating, because containment and cleanup efforts would be made harder by the ice covering the Straits. A spill would also have an unknown impact on the fishery in Lake Michigan and Lake Huron.

Five of the twelve federally-recognized Indian tribes in Michigan are parties to the 1836 Treaty of Washington, which reserved off-reservation hunting and fishing rights throughout the ceded territory, which comprises approximately 40 percent of present-day Michigan – including in Lake Michigan and Lake Huron. The Straits of Mackinac are located in the center of that ceded territory.

In 1973, the United States Department of Justice filed a lawsuit against the State of Michigan on behalf of the Bay Mills Indian Community to enforce the 1836 Treaty. In 1979, Judge Fox of the United States District Court for Western District of Michigan issued the “Fox Decision,” which upheld the continued existence of tribal fishing rights in the Great Lakes under the Treaty of 1836.

In 1985, the Department of Justice, the 1836 Treaty Tribes, and the State of Michigan negotiated a consent decree to govern how tribes would exercise those rights. The parties negotiated a new consent decree in 2000, which expires in 2020. The parties – the United States Department of Justice, the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians, the Sault Ste. Marie Tribe of Chippewa Indians, and the State of Michigan – are set to begin negotiations soon on a new consent decree in United States v. Michigan to replace the decree that expires in 2020.

Enbridge’s Line 5 Pipeline was/is certain to be a topic of discussion during those negotiations. There are many members of the five treaty tribes who are commercial fishermen, and depend upon the Great Lakes fishery for their livelihood. Many of those tribes have tourism-based economies that depend on the Great Lakes. The cultural importance of the Great Lakes to the Tribes does not require explanation. Leaders of the Tribes have been vocal about their concerns with the Line 5 Pipeline, and its potential to harm tribal cultural and economic resources.

The Department of Justice serves as the law firm for the 1836 Treaty Tribes during the consent decree negotiations (after all, the case is captioned United States v. Michigan).  The same lawyers within the United States Attorney’s Office in the Western Michigan District who participated in the United States v. Enbridge negotiations are also representing the 1836 Treaty Tribes in negotiations under United States v. Michigan.

Those tribes were caught off-guard by the Department of Justice’s proposed consent decree with Enbridge Energy Partners, and its provisions related to the Line 5 Pipeline crossing.  The Department of Justice and the EPA did not consult with the 1836 Treaty Tribes about how their negotiations would affect their treaty fishing rights.

The oil spill that gave rise to the Department of Justice’s lawsuit against Enbridge occurred near Marshall, Michigan – 275 miles south of the Straits of Mackinac. There was no indication to the 1836 Treaty Tribes that the Department of Justice’s and the EPA’s negotiations with Enbridge would address the Line 5 Pipeline.  In fact, the proposed consent decree in United States v. Enbridge does not mention the words, “tribe,” “tribes,” or “treaty.”

Last month, the Grand Traverse Band of Ottawa and Chippewa Indians filed a pleading in that case objecting to the proposed Consent Decree and demanding that the federal agencies consult with the 1836 Treaty Tribes on the provisions related to the Line 5 Pipeline. That pleading is here: tribe-objects

Without further action or amendment, the proposed Consent Decree in United States v. Enbridge could take effect. In practical terms, that could limit the ability of the Department of Justice to seek additional protections on behalf of its tribal clients in upcoming consent decree negotiations in United States v. Michigan.

The Department of Justice has published notice that it will accept public comments on the proposed consent decree in United States v. Enbridge until October 21, 2016. The Federal Register Notice is here.

That notice was published on the very same day that the Department of Justice published a separate statement announcing a temporary halt to the construction of the Dakota Access Pipeline.

Yes Magazine: “In Negotiations With Feds, Can Standing Rock Change U.S.-Tribe Relationships?”

Matthew L.M. Fletcher

Here.