treaty rights – Page 57

In 2012, Wisconsin authorized the first state hunt of gray wolves. Wisconsin’s interest in wolf depredation is legitimate: the growth in wolf population has exponentially increased human-wolf conflicts and state expense. Yet, Wisconsin shares these wolves; 83 percent of gray wolves reside on Ojibwe reservations or on territory ceded by the Ojibwe, where the Tribes still have resource rights. The Tribes vehemently oppose the wolf hunt. The Ojibwe maintain a strong cultural kinship with wolves and have traditionally prohibited wolf hunting. The Tribes named wolves a “tribally protected species,” asserting a right to protect all the wolves shared with Wisconsin. Historically, the Tribes and the State cooperatively managed shared resources. However, the State initiated the wolf hunt despite tribal protestations, instigating the first break from cooperative management in decades. Both sovereigns have legitimate and conflicting interests and appear to risk their first major treaty rights litigation in decades.

This Comment analyzes the extent of each sovereign’s wolf rights in light of biological research and existing Indian law precedents. The first issue is the scope of the State’s obligation to respect the Tribes’ sovereign rights to protect and perpetuate reservation wolf packs. The second issue is the extent of the Tribes’ rights to protect ceded-territory wolves away from reservations. This Comment argues that the Tribes can protect and perpetuate reservation wolves as a component of inherent sovereignty. Wisconsin must implement a wolf policy that respects that sovereignty, including a hunt-free “buffer zone” of some wolf territory directly adjoining the reservation. However, the Tribes’ claim to protect all shared wolves is untenable, as tribal rights over wolves away from the reservation are much weaker. But the Tribes have rights correlated to those wolves and are entitled, at minimum, to a policy that ensures species survival; additionally, the Tribes can consider other options to protect wolves. Ultimately, this Comment proposes that both sovereigns can and should resolve this conflict through negotiation, continuing the tradition of cooperative management, and avoiding lengthy and expensive litigation.

Nick Reo and myself have a short response to the paper coming out in the online version of the Wisconsin Law Review soon.

MN DNR Releases 1,800 page Environmental Impact Statement for Proposed Copper-Nickel Mine Located in 1854 Treaty Ceded Territory

December 7, 2013December 7, 2013Victoria Sweet

The Bois Forte, Grand Portgage, and Fond du Lac tribes, along with GLIFWC and the 1854 Treaty Authority have raised concerns about the impact of this project. The proposed mine exists within territory ceded by the tribes in the 1854 Treaty. The tribes reserved usufructuary rights in the area.

The public comments period began with the release of the document. At least 3 public hearings will be held.

Link to the Environmental Impact Statement here.

Press coverage here.

Excerpt from article:

In September, staff from all three Chippewa bands, the Great Lakes Indian Fish and Wildlife Commission and the 1854 Treaty Authority submitted a 100-page “cumulative effects analysis” outlining their objections to the revised environmental-impact statement.

The tribes were included in the process both times as “cooperating agencies,” which meant an advisory role with no direct control over the data collection, writing or editing for the statement. Still, their influence on the latest draft is easy to spot.

This level of tribal engagement is not limited to the PolyMet project or the Minnesota tribes, says Nancy Schuldt, the Fond du Lac water-projects coordinator: “Today, tribes are exercising environmental authorities to a greater extent. There has been a tremendous amount of capacity building in terms of tribal staff and expertise to actually follow up on our request for a seat at the table when decisions like this are being made.” . . .

The mining of iron ore, meanwhile, has been altering northern Minnesota ecosystems for more than a century, and Schuldt wants that to be the starting point for any conversation about the impact of mining what is sometimes called nonferrous, or noniron, metals.

In northern Minnesota, copper, nickel and other nonferrous metals are embedded in rock that also contains sulfide. (That’s why this kind of mining is often called sulfide mining.) When you expose the rock to air and water, sulfuric acid is created. It’s the acid runoff from the exposed rock that somebody will have to be watching and treating for hundreds of years.

In their response to a recent draft, the tribal cooperating agencies write that current and historic mining activities have “profoundly and, in many cases, permanently degraded vast areas of forests, wetlands, air and water resources, wildlife habitat, cultural sites and other critical treaty-protected resources within the 1854 Ceded Territory.”

If the PolyMet proposal promises pollution control, the position of the tribes is, we don’t buy it.

“The State of Minnesota has existed for 155 years,” they write. “The United States of America has existed for 237 years. The notion that a mining company and financial assurance instruments will be available to work on a mine site 500 years from now is not believable.”

Federal Judge Agrees with Minnesota Ojibwe Members to Dismiss Lacey Act Prosecutions for Fishing at Red Lake

November 26, 2013Matthew L.M. Fletcher2 Comments

This sets up an unusual circumstance — conflicting federal district court opinions arising from the same federal investigation. Our post on the prior order from a different judge, who rejected the motion to dismiss in United States v. Holthusen is here. News coverage here.

Here are the materials in United States v. Good (D. Minn.):

43 MJ R&R

46 Objections to MJ R&R

52 Government Response

56 DCT Order Rejecting MJ R&R

Here are the materials in United States v. Brown (D. Minn.):

71 MJ R&R

90 DCT Order Rejecting MJ R&R

Squaxin Island Loses Groundwater Rights Appeal in Washington COA

November 14, 2013November 14, 2013Matthew L.M. Fletcher

Here is the opinion in Squaxin Island Tribe v. Washington State Dept. of Ecology.

Briefs here:

State Brief

Tribe Brief

Reply Brief

Red Lake Ojibwe Member Can Be Prosecuted by Feds for Violations of Tribal Hunting/Fishing Regulations

November 8, 2013November 7, 2013Matthew L.M. Fletcher1 Comment

Thunder Lake on the Red Lake Reservation

Here are the materials in United States v. Holthusen (D. Minn.):

95 Magistrate Judge R&R

98 Holthusen Objections

106 Government’s Response to Objections

114 DCT Order Adopting MJ R&R

Jason Sanders on Wisconsin’s Mi’ingan Hunt

November 4, 2013Matthew L.M. Fletcher

Anishinaabe law student and scholar Jason Sanders has posted, “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt,” his student note forthcoming in the Wisconsin Law Review.

Here is the abstract:

In 2012, Wisconsin authorized the first state hunt of gray wolves. Wisconsin’s interest in wolf depredation is legitimate: the growth in wolf population has exponentially increased human-wolf conflicts and state expense. Yet, Wisconsin shares these wolves; 83 percent of gray wolves reside on Ojibwe reservations or on territory ceded by the Ojibwe, where the Tribes still have resource rights. The Tribes vehemently oppose the wolf hunt. The Ojibwe maintain a strong cultural kinship with wolves and have traditionally prohibited wolf hunting. The Tribes named wolves a “tribally protected species,” asserting a right to protect all the wolves shared with Wisconsin. Historically, the Tribes and the State cooperatively managed shared resources. However, the State initiated the wolf hunt despite tribal protestations, instigating the first break from cooperative management in decades. Both sovereigns have legitimate and conflicting interests and appear to risk their first major treaty rights litigation in decades.

This Comment analyzes the extent of each sovereign’s wolf rights in light of biological research and existing Indian law precedents. The first issue is the scope of the State’s obligation to respect the Tribes’ sovereign rights to protect and perpetuate reservation wolf packs. The second issue is the extent of the Tribes’ rights to protect ceded-territory wolves away from reservations. This Comment argues that the Tribes can protect and perpetuate reservation wolves as a component of inherent sovereignty. Wisconsin must implement a wolf policy that respects that sovereignty, including a hunt-free “buffer zone” of some wolf territory directly adjoining the reservation. However, the Tribes’ claim to protect all shared wolves is untenable, as tribal rights over wolves away from the reservation are much weaker. But the Tribes have rights correlated to those wolves and are entitled, at minimum, to a policy that ensures species survival; additionally, the Tribes can consider other options to protect wolves. Ultimately, this Comment proposes that both sovereigns can and should resolve this conflict through negotiation, continuing the tradition of cooperative management, and avoiding lengthy and expensive litigation.

Report on the Polar Law Conference and Arctic Circle Conference in Iceland – Long

October 17, 2013October 17, 2013Victoria Sweet

I just returned from Iceland, where I participated in the 6th annual Polar Law Conference and the inaugural Article Circle Conference. The events drew an impressive array of speakers. It was almost a “who’s who” in Arctic affairs, bringing in heads of state, ambassadors, special envoys, lawyers, scholars, business executives, scientists, activists, students, and other interested people. Coverage of both events can be found online.

Polar Law Conference

Arctic Circle Conference

Instead of simply reviewing the events, I thought I’d mention a few of the presentations and events that were of particular interest to me and that might be interesting to some of you.

This is the second time I have attended the Polar Law Conference. I was impressed both times with how open the attendees are to discussing the implications of Arctic development on the Indigenous peoples who reside in Arctic regions. In fact, I found myself engaged in fascinating discussions with legal scholars from many locations who do not understand the U.S. domestic legal policies toward tribes (does anyone truly understand this?) as well as what appears to the international community as the United States’ hesitance to apply UNDRIP, join ILO 169 or UNCLOS, or apply international customary law norms in US courts. Even more interesting are the discussions on how Indigenous groups around the world are dealing with issues that face us all such as: access to sacred sites, protection of subsistence rights, violence against women, preservation and protection of cultural knowledge, among other things.

Here are some highlights from presentations made at both conferences:

Timo Koivurova, Director of the Northern Institute for Environmental and Minority Law, referred to the evolving indigenous law regime that is developing internationally and the need for this regime to trickle down to the domestic level to be truly effective.

Antje Neumann, Researcher at the Univ of Akureyri and PhD Candidate at the University Tilburg presented a compelling paper on the role of Indigenous knowledge in environmental protection and how assisting Indigenous groups to preserve traditional knowledge may benefit all nations when working on ways to protect and preserve the environment.

Kári á Rógvi, Member of Parliament, Faroe Islands spoke on the struggles that Faroe Islanders face as a self-governing nation under the sovereign authority of Denmark. The similarities in legal struggles between the Faroe Islands and Tribes in the US were striking, and Kári and I both agreed that we might be able to learn much from each other since the issues we face are quite similar.

Leena Heinämäki, Research Fellow, Northern Institute for Environmental and Minority Law, shared a project she is involved with on reclaiming sacred natural sites of Indigenous Peoples in the Circumpolar Arctic. Researchers from various countries are bringing together the similarities and differences that Indigenous Peoples in all Arctic countries are facing, and trying to created a unity of purpose between these groups.

Mara Kimmel, an Alaskan attorney and PhD Candidate, Central European University, gave a fascinating paper called “Land, Governance and Well-Being – An Alaskan Case Study.” Her PhD thesis will be coming out soon, and I am looking forward to reading about Alaska Native land claims, governance issues, and the link to the well-being of the people. Since my presentation had to do with human security issues for Indigenous communities in Alaska and Canada related to economic development, we found a lot of cross issues between human security and the ability to self-govern effectively.

Aqqaluk Lynge, Chair, Inuit Circumpolar Council spoke about the question of whether Indigenous people in the Arctic will thrive or just survive. He said that he is not yet convinced that the Arctic will become a place of peace. He challenged the international community to focus on honesty, integrity, transparency and accountability in its dealings with Indigenous Peoples.

Edward Itta (Inupiaq), Commissioner, U.S. Arctic Research Commission gave a powerful presentation. He wanted to know how the Inupiaq can participate more meaningful in economic opportunities. Perhaps, as he said, it is time for Indigenous peoples to ponder a challenge to the current status quo. As he also said, the Inupiaq “degree” in the Arctic world is their survival!

Gudmundur Alfredsson, Univ of Akureyri (and influential part of the creation of UNDRIP), chaired the session where Mr. Itta spoke. He pointed out the less-than-stellar human rights and Indigenous rights records that many of the Arctic states have. He said that it might be time for the world to start focusing on the North and these important issues. He also took a moment and had every Indigenous person in the audience raise their hands. While there were numerous hands raised, we were still quite a small minority. He said that maybe next year we can do better.

The conference had many memorable moments, from the moment when the director of Greenpeace confronted President Putin’s Special Envoy about the arrest of the 30 Greenpeace protestors to the Google Maps presentation showing the in-depth mapping of the ocean to the gorgeous northern lights display (thanks to Mother Nature for that). It was worth the time to attend.

It would be great to see a stronger representation of Alaska Natives getting their voices heard at these conferences along with other legal scholars from the U.S. While I understand that many in the U.S. do not find it worthwhile to spend much time on the international scene, and it is often cost prohibitive, I think we have a unique opportunity related to the Arctic. The attention of the world is turning to that region, and right now we have an opportunity to have our voices heard. Further down the line, the policies will be set and we will be stuck trying to change the practices that we disagree with. Right now we may be able to influence them from the start. It’s something to consider.

State of Washington’s Opening Brief in Ninth Circuit Appeal of Culverts Decision

October 15, 2013November 8, 2013Matthew L.M. Fletcher1 Comment

Here:

State’s Opening Brief

Update: Oregon Amicus

Lower court materials are here.