Here.
Briefs and lower court materials here.
treaty rights
Second Circuit Rejects Jay Treaty Statute Defense to Criminal Prosecution
Here are the materials in United States v. Malachowski:
An excerpt:
Malachowski invokes 8 U.S.C. § 1359, which allows American Indians born in Canada to freely cross the borders of the United States, and contends that he was wrongfully convicted of counts three, four, five, and six. The statute extends only “to persons who possess at least 50 per centum of blood of the American Indian race,” and we previously expressed skepticism that Malachowksi satisfied his burden of proof on this point. See Malachowski, 415 F. App’x at 313 (noting the “dearth of evidence respecting [Malachowski’s] ancestry”). Neither the immigration officer assigned to Malachowksi’s case nor the ATF agent investigating Malachowksi unearthed evidence of his American Indian heritage. G.A. 58, 146-47. And when Malachowski was arrested by a border patrol agent and asked “Do you claim any legal status in the United States?” Malachowski answered “No.” G.A. 54. During this encounter, Malachowski also did not “claim any other citizenship or nationality.” Id. Malachowksi has accordingly fallen short of prevailing on this claim.
1855 Treaty Authority Members Issued Citations
A group of individuals from Ojibwe nations in Minnesota known as the “1855 Treaty Authority” staged a wild rice harvesting gathering in Nisswa, Minnesota on Hole-in-the-day Lake on August 27, 2015. The location is outside of current reservation boundaries, but within the territory ceded by the 1855 Treaty with the Chippewa. The group is asserting that because the 1855 Treaty did not specifically remove hunting, fishing, and gathering rights on the ceded territory, those rights still exist for tribal members off-reservation.
The Minnesota DNR issued one-day permits to diffuse tensions, but several members of the Treaty Authority continued to rice and gillnet the following day, and were issued citations for gillnetting without a permit. The final decision to formally charge the members with gross misdemeanors and bring the case to court is still forthcoming from the Crow Wing county attorney.
In 1999, the Supreme Court upheld the Mille Lacs Band of Ojibwe’s 1837 Treaty right to hunt, fish, and gather on ceded lands after determining that the 1855 Treaty did not extinguish those usufructuary rights. The Mille Lacs case did not decide whether the 1855 Treaty itself preserved off-reservation hunting, fishing, and gathering rights for other tribes in Minnesota.
The 1855 Treaty Authority previously attempted to get this issue into federal court in 2010, but the DNR did not issue any citations at that point.
Press release from the 1855 Treaty Authority here.
Letter to Minnesota’s governor here.
Response from Minnesota DNR here.
Previous coverage here.
Ojibwe Gearing Up for Treaty Hunting and Gathering Case
The potential case concerns wild rice gathering and hunting off reservation and will likely include a habitat protection component. The Minnesota Public Radio article is here.
Pro Se Effort to Stop Michigan DNR Land Transfer to Mining Company Dismissed
There are numerous pleadings here but here are the most relevant — the case is captioned Bellfy v. Creagh (W.D. Mich.):
12 DCT Order on 2d TRO Request
Prior post on this case here.
Alanis Obomsawin’s film “Trick or Treaty” now available for rental
This is an incredible film about the treatment of treaties and Native peoples in Canada. It’s now available for rental from Canada’s National Film Board. I saw it at the NAISA conference this June and highly recommend it. It is extremely sad and disturbing at times but also incredibly inspiring.
Tulalip Fish & Wildlife Director arrested on suspicion of poaching
Here.
WaPo: “As salmon vanish in the dry Pacific Northwest, so does Native heritage”
Here.
Federal Court Dismisses Claim against Utah Police for Shooting Indian Man
Here are the materials in Jones v. United States (Fed. Cl.):
Ninth Circuit Decides Tulalip Tribes v. Suquamish Tribe
Here is the opinion. From the syllabus:
The panel affirmed the district court’s summary judgment in a treaty fishing rights case in which the Tulalip Tribes sought a determination of the scope of the Suquamish Indian Tribe’s usual and accustomed fishing grounds and stations.
The Tulalip Tribes invoked the district court’s continuing jurisdiction as provided by a permanent injunction entered in 1974. The panel affirmed the district court’s conclusion that certain contested areas were not excluded from the Suquamish Tribe’s usual and accustomed fishing grounds and stations, as determined by the district court in 1975.
Briefs here.
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