treaty rights

Catherine O’Neill on Washington Dept. of Ecology’s Draft Water Quality Standards and the District Court’s Order Enjoining EPA to Act

Ann Tweedy

Here.  Professor O’Neill provides a detailed and understandable summary of the many problems with Ecology’s draft standards and also explains EPA’s role and the District Court for the Western District of Washington’s recent decision.

The District Court’s decision in Puget Soundkeeper Alliance v. EPA is here: Puget Soundkeeper v EPA Order on Summary Judgment 8-3-16.

Standing Rock Sioux Sues Army Corps over Dakota Access Pipeline

Matthew L.M. Fletcher4 Comments

Here are the materials so far in Standing Rock Sioux Tribe v. United States Army Corps of Engineers (D.D.C.):

Standing Rock Complaint

Motion preliminary injunction

DAPL motion to intervene

Proposed order preliminary injunction

Proposed order expedited hearing

UPDATE (8/24/16):

USACE opposition memorandum to PI motion

Standing Rock reply in support of PI

Cert Petition Arising from Police Killing of Ute Tribal Member

Matthew L.M. Fletcher1 Comment

Here is the petition in Jones v. Norton:

cert petn

Questions presented:

  • Where it is undisputed that Plaintiffs/Petitioners Debra Jones and Arden Jones, and their deceased son Todd R. Murray, all had individual rights under the 1868 Ute Tribe treaty with the United States, and where, under the procedural posture of this case, it is undisputed that Plaintiffs’ and their Decedent son’s individual rights under the Treaty were violated, did Plaintiffs state a claim for relief under 42 U.S.C. § 1983 based on the violation of their treaty rights?
  • 2.Where State police officers have pursued an Indian within Indian country without either probable cause or jurisdictional authority can they be relieved of the common law duty to preserve evidence simply because the officers’ tortious conduct giving rise to the claims against them arose within Indian country?
  • 3.Where there are disputed material facts, can a district court grant summary judgment based upon the court’s opinion that a reasonable jury would decide the case in favor of the summary judgment movant?

Lower court materials here.

Skokomish Sues Suquamish Tribal Council Members over Treaty Fishing

Matthew L.M. Fletcher

Here is the complaint in Skokomish Indian Tribe v. Forsman (W.D. Wash.):

1 Complaint

Nez Perce Files Suit Over Final Decision in Clear Creek Project

Sarah M Donnelly

Download complaint here.

Link to news coverage here.

Superior Court Finds Upper Skagit Tribe Necessary Party in Declaratory Action

Sarah M Donnelly

Download Court’s letter opinion in re: Schuyler v. Unsworth & Dept. of Fish and Wildlife, Thurston County Cause No. 14-2-02373-9 here.

A member of the Upper Skagit Tribe filed an action in Superior Court for declaratory relief on certain tribal hunting and fishing rights guaranteed by the Treaty of Point Elliot.  However, the Court held that the case affects the rights of the Tribe and therefore the case must be dismissed if it cannot be joined within 90 days.

The 9th Circuit has affirmed the Culverts decision & the treaty habitat right in W. Wash.

Ann Tweedy4 Comments

Download opinion in U.S. v. Washington (9th Cir. Jun 27, 2016) here.

The decision is unanimous. Congratulations to all who worked on it through the years and first and foremost to the Tribes who brought it.

Previous coverage and briefs here.

Cert Petition in Trust Accounting Claim for Sand Creek Descendants

Sarah M Donnelly1 Comment

Download petition for a Writ of Certiorari here.

Questions presented:

Whether a treaty promise to pay reparations to a group of Native Americans in the form and amount that is “best adapted to the respected wants and conditions of” said group of Native Americans, and subsequent appropriation of funds by Congress to pay such reparations, create a fiduciary relationship between the United States and said group of Native Americans.

Whether the Administrative Procedures Act waives the United States’ immunity from suit for accounting claims regarding trust mismanagement that begun before the enactment of the Act.

Whether a set of Appropriations Acts by Congress that defer the accrual of trust mismanagement claims against the United States operates as a waiver of the United States’ immunity from suit.

Previous posts in re Flute v. U.S. here.

Army Corps of Engineers Rejects Gateway Pacific Terminal

Sarah M Donnelly

Download Memorandum for Record here.

The Corps has denied the permit to build a coal export facility near Cherry Point after deciding the impact to Lummi Nation fishing would violate their treaty rights.

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Matthew L.M. Fletcher2 Comments

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.