treaty rights

Seattle U. School of Law Field Trip to the Elwha River

Ann Tweedy

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Here are some pictures from Sunday’s Seattle U. field trip to view the progress of the Elwha River’s restoration. The trip was led by Robert Elofson, Director of the River Restoration Project for the Lower Elwha Tribe. It was part of a class on the restoration of the River after the removal of the two dams, which is taught by Professors Catherine O’Neill and Eric Eberhard. What lucky students to have the chance to examine the mechanics of a tribal triumph like this one and then to see the on-the-ground evidence firsthand!

Ninth Circuit Audio and Video in United States v. Washington Culverts Appeal

Matthew L.M. Fletcher2 Comments

Audio and video.

Billy Frank atop a culvert
Billy Frank atop a culvert

Opening and answer briefs.

Lower court materials here and here.

Federal Court Allows Tribal Night Deer Hunting in Wisconsin

Matthew L.M. Fletcher

Here are the materials in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin (W.D. Wis.):

404 Tribal Brief

406 Opposition

409 Reply

410 DCT Order

This case is on remand from the CA7, materials here.

News coverage here.

New Bibliography on Indian Treaties

Matthew L.M. Fletcher

Beth DiFelice has published “Indian Treaties: A Bibliography” (PDF) (SSRN) in the Law Library Journal.

Squaxin Island Tribe Amicus Brief in State of Washington Water Resource Rule Appeal

Matthew L.M. Fletcher

Here is the brief in Hirst v. Whatcom County (Wash.):

Squaxin Island Amicus Brief

Save the Date: Public Reception to Kick Off Why Treaties Matter Outreach Event

Sarah M Donnelly

Minnesota American Indian Bar Association

Save the Date

Tuesday, November 3, 2015, 4:30-7:00 PM

          MAIBA will be co-hosting an extraordinary outreach event with the United States District Court, District of Minnesota and FBA-MN focusing on Indian treaty rights.  As part of the event, the Why Treaties Matter Exhibit will be on display at the U.S. Courthouse in Minneapolis for two weeks in November.  MAIBA will be co-hosting a kickoff reception on November 3, 2015 in the atrium of the U.S. Courthouse in Minneapolis for the outreach event. The Honorable Diane Humetewa (Hopi), the first Native American women appointed to an Article III Judgeship and the first enrolled tribal member to serve as a United States District Court Judge will be providing the keynote address at the kickoff reception.  We hope to see you at the event.  Miigwech and have a good day.

Public Reception to Kick Off Why Treaties Matter Outreach Event
Tuesday, November 3, 2015, 4:30-7:00 pm
U.S. Courthouse, Minneapolis
300 South Fourth St.
Minneapolis, MN 55415

GLIFWC Publishes Report on Invasive Species in Anishinaabe Ceded Territories

Matthew L.M. Fletcher

Here is “Forest Invasives Regulatory Review:
Existing Regulations, Enforcement Strategies, Gathering Codes and Response Plans in the 1836, 1837, and 1842 Ojibwe Ceded Territories
” by
Steve Garske
and
Philomena Kebec.

Ninth Circuit Oral Argument in Window Rock Unified School District v. Nez (Formerly Reeves)

Matthew L.M. Fletcher1 Comment

Here.

Briefs and lower court materials here.

Second Circuit Rejects Jay Treaty Statute Defense to Criminal Prosecution

Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Malachowski:

Appellant Brief

Appellee Brief

CA2 Order

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

Leah Jurss

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.