treaty rights

Abstract:

Despite a treaty in 1866 between the Cherokee Nation and the federal government granting them full tribal citizenship, Cherokee Freedmen—the descendants of African American slaves to the Cherokee, as well as of children born from unions between African Americans and Cherokee tribal members—continue to be one of the most marginalized communities within Indian Country. Any time Freedmen have sought the full rights and benefits given other Cherokee citizens, they have encountered intense opposition, including a 2007 vote that effectively ousted them from the tribe. The debates surrounding this recent decision provide an excellent case study for exploring the intersections of race and sovereignty. In this article, I use the most recent Cherokee Freedmen controversy to examine how racial discourse both empowers and diminishes tribal sovereignty, and what happens in settler-colonial contexts when the exercise of tribal rights comes into conflict with civil rights. I also explore how settler colonialism as an analytic can obscure the racialized power dynamics that undermine Freedmen claims to an indigenous identity and tribal citizenship.

Federal Court Holds Alleging Jay Treaty Rights Does Not Create FTCA Jurisdiction

August 27, 2014Matthew L.M. Fletcher

Here are the materials in Hodgson v. United States (W.D. Tex.):

7 US Motion to Dismiss

10 Hodgson Response

11 US Reply

17 DCT Order

Ninth Circuit Rules in Favor of Lummi Tribe in Treaty Fishing Dispute

August 20, 2014Matthew L.M. Fletcher1 Comment

Here is the court’s opinion in United States (Lower Elwha Klallam Indian Tribe) v. Lummi Tribe:

CA9 Opinion

The court’s syllabus:

The panel reversed the district court’s summary judgment entered in favor of the Klallam Tribe in a case involving a fishing territory dispute between two sets of Indian Tribes, brought pursuant to the continuing jurisdiction of the 1974 “Boldt Decree” issued by the U.S. District Court for the Western District of Washington.

The panel held that the issue of whether the waters immediately to the west of northern Whidbey Island were part of the Lummi Tribe’s usual and accustomed fishing grounds had not yet been determined. The panel held, therefore, that the district court erred in concluding that the issue was controlled by law of the case. The panel remanded to the district court for further proceedings.

Judge Rawlinson dissented because she would hold that the district court properly applied the law of the case doctrine where the fishing rights issue was addressed in the prior opinion United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000).

Briefs and other materials here.

NMAI Treaty Symposium — Sept. 18, 2014

August 14, 2014Matthew L.M. Fletcher

Here (PDF):

Opening Ninth Circuit Brief in Yakama/King Mountain Tax Dispute with US

July 30, 2014Matthew L.M. Fletcher

Here is the opening brief in Confederated Tribes and Bands of the Yakama Indian Nation v. Alcohol and Tobacco Tax and Trade Bureau:

Yakama Opening Brief

Lower court materials in King Mountain Tobacco Co. v. Alcohol and Tobacco Tax and Trade Bureau (E.D. Wash.) are here.

Canadian Supreme Court Rules Against Grassy Narrows First Nation

July 11, 2014Kate Fort

Decision here.

The central question on this appeal is whether Ontario has the power to take up lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether this is subject to Canada’s approval.

                    Ontario and only Ontario has the power to take up lands under Treaty 3. This is confirmed by constitutional provisions, the interpretation of the treaty, and legislation dealing with Treaty 3 lands.

                    First, although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. Both levels of government are responsible for fulfilling the treaty promises when acting within the division of powers under the Constitution. Sections 109 , 92(5) and 92A of the Constitution Act, 1867 establish conclusively that Ontario holds the beneficial interest in the Keewatin lands and has exclusive power to manage and sell those lands as well as to make laws in relation to the resources on or under those lands. Together, these provisions give Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially regulated purposes such as forestry. Further; s. 91(24) of that same Act does not give Canada the authority to take up provincial land for exclusively provincial purposes.

                    Second, nothing in the text or history of the negotiation of Treaty 3 suggests that a two‑step process requiring federal supervision or approval was intended. The text of the taking‑up clause supports the view that the right to take up land rests with the level of government that has jurisdiction under the Constitution. The reference in the treaty to Canada merely reflects the fact that the lands at the time were in Canada, not Ontario.

                    Lastly, legislation subsequent to the signature of the treaty and which dealt with Treaty 3 lands confirmed Ontario’s right to take up that land by virtue of its control and beneficial ownership of the territory. It did not amend the terms of Treaty 3.

Eighth Circuit Briefs on Reach of Lacey Act in Minnesota Chippewa Tribe Reservations

June 30, 2014Matthew L.M. Fletcher

Here are the materials in United States v. Brown:

USA Opening Brief

Appellees Consolidated Brief

Reply Brief TK

Lower court materials here.

Canadian Supreme Court Issues Decision in Tsilhqot’in First Nation Land Claim

June 26, 2014June 30, 2014Kate Fort

Decision here

Held: The appeal should be allowed and a declaration of Aboriginal title over the area requested should be granted. A declaration that British Columbia breached its duty to consult owed to the Tsilhqot’in Nation should also be granted.

***

In finding that Aboriginal title had been established in this case, the trial judge identified the correct legal test and applied it appropriately to the evidence. While the population was small, he found evidence that the parts of the land to which he found title were regularly used by the Tsilhqot’in, which supports the conclusion of sufficient occupation. The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supports an inference of continuous occupation. And from the evidence that prior to the assertion of sovereignty the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, he concluded that the Tsilhqot’in treated the land as exclusively theirs. The Province’s criticisms of the trial judge’s findings on the facts are primarily rooted in the erroneous thesis that only specific, intensively occupied areas can support Aboriginal title. Moreover, it was the trial judge’s task to sort out conflicting evidence and make findings of fact. The presence of conflicting evidence does not demonstrate palpable and overriding error. The Province has not established that the conclusions of the trial judge are unsupported by the evidence or otherwise in error. Nor has it established his conclusions were arbitrary or insufficiently precise. Absent demonstrated error, his findings should not be disturbed.

APTN story here.

CBC here.

Four First Nations Sue the Federal Government Over Access to Safe Drinking Water

June 17, 2014Kate Fort

Articles here and here.

The court action — filed by the Tsuu T’ina, Ermineskin, Sucker Creek and Blood First Nations — asks Federal Court to force Ottawa to upgrade their water systems, provide continuing support to keep them operating safely and to refund money the bands say the government has saved over the years by not doing so.

Filing here (via CBC).