Story is here. The trial is scheduled to last a week.
Previous coverage (and links to other related material) is here.
treaty rights
National Labor Relations Board Asserts Jurisdiction over Chickasaw Nation Casino
Here is the decision:
Judge Martinez Grants Makah Motion for Summary Judgment in U&A Dispute with Quinault and Quileute
Here are the materials in United States v. Washington subproceeding 09-1 (W.D. Wash.):
IPR Profile on American Indian Treaty Rights in Michigan
Interlochen Public Radio continues its excellent profiles of northern Michigan history with “Looking Back: The Fight For American Indian Fishing Rights,” profiling Arthur Duhamel.
Here’s my contribution:
The urgency was about more than fish. The federal government had ignored the poverty in Peshawbestown for generations. As Matthew Fletcher puts it, the federal government just stopped returning the tribe’s phone calls in the 1870s.
Fletcher teaches indigenous law at Michigan State University and is a member of the Grand Traverse Band. Fletcher says the tribe needed some way to make the federal government recognize its existence and asserting fishing rights under a treaty signed in 1836 was the way to do that.
“The United States does not sign a treaty with counties or corporations,” says Fletcher. “They sign treaties with nations.”
Yakama Settles Federal Suit with Counties and Out-of-State Jurisdictions over Unauthorized Raid on Tribal Lands
Here is the press release:
YAKAMA-COUNTIES SETTLEMENT PRESS RELEASE
News coverage, where county attorney says “we’re sorry.”
Text from the Yakama press release:
The Confederated Tribes and Bands of the Yakama Nation have reached out-of-court settlements with Yakima County, Benton County, and local governments from Virginia and Mississippi, to resolve the Nation’s lawsuit against those governments for a February 16, 2011, dawn raid of Yakama Reservation trust lands. Upon the first of two joint dismissal requests filed with the U.S. District Court, Judge Rosanna Peterson has already dismissed most of the claims between the parties.
“We are pleased and proud that governments from here in the Yakima Valley and Columbia River Basin, to as far away as the east coast, have all agreed to honor the Yakama Treaty of 1855,” said Yakama Nation Tribal Council Chairman Harry Smiskin. “Each of them will seek our blessing before every again returning to Yakama lands. They will also cooperate with our Tribal Police, Tribal Jail and Tribal Court to improve public safety on our reservation.”
Through Article II of the Yakama Treaty of 1855, the Yakama Reservation was set apart for the exclusive use and benefit of the Yakama Nation. To that end, the Yakama Treaty makes clear that no “white man” shall be permitted to reside upon Yakama Indian Country without permission from the Yakama Nation. The federal Treaty negotiators explained to the Yakama that Article II meant that no one would be permitted to step onto Yakama Reservation lands without the Yakamas’ consent.
In Article VIII of the Yakama Treaty, the United States and Yakama Nation set forth a process for delivering Yakama criminals or suspects who are in Yakama Indian Country to federal authorities. Federal Treaty negotiators explained to the Yakama that Article VIII meant there would be a consultation process between the Head Chief or all of the Yakama Chiefs, and the United States relative to any Yakama alleged to have committed a wrong, before they might be delivered up to federal authorities.
In March 2011, the Yakama Nation sued federal law enforcement agencies and several local governments for violating these federal Treaty provisions when raiding a Yakama member-owned business on Yakama trust lands without providing any advance notice to Yakama authorities, and in turn barring Yakama Nation cops who arrived at the scene of the raid to help keep the peace.
Since the spring of 2012, all of the parties to the litigation have engaged in a multi-track mediation process. The Yakama Nation and Department of Justice defendants remain in settlement negotiations.
Suit materials are here, here, here, and here.
Fletcher Webinar on Indian Land Tenure Foundation’s “Native Land Law” — Treaties — June 11
ILTF is pleased to announce that Matthew Fletcher, Professor of Law and Director of the Indigenous Law & Policy Center at Michigan State University College of Law, will be presenting at the June 11th Native Land Law CLE. Professor Fletcher will be discussing treaties.
Professor Fletcher recently published the sixth edition of Cases and Materials on Federal Indian Law (Thomson West 2011) with David Getches, Charles Wilkinson, and Robert Williams and American Indian Tribal Law (Aspen 2011), the first casebook for law students on tribal law. Fletcher’s book, The Return of the Eagle: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians, was released by Michigan State University Press in 2012. Professor Fletcher has published articles with Arizona Law Review, Harvard Journal on Legislation, Hastings Law Journal, University of Colorado Law Review, Houston Law Review, Tulane Law Review, and many others. He is the primary editor and author of Turtle Talk, the leading law blog on American Indian law and policy.
The Native Land Law CLE series provides an overview of the 17 legal principles outlined in the legal treatise, Native Land Law: General Principles of Law Relating to Native Lands and Natural Resources, and offers analysis of federal laws and policies that impact the field of Indian law today. Professor Fletcher will offer his own insights into the significance of treaties during this month’s two-hour program.
The CLE will be offered from 1:00 – 3:00 p.m. (CST) on Tuesday, June 11th.
Click here to learn more about the CLE and register for the program. http://www.iltf.org/native-land-law.
All of the previous CLE programs offered as part of the Native Land Law Series are available on demand. To view Professor Colette Routel’s presentation on the Fundamentals of Policy and History or Professor Lindsay Robertson’s presentation on the Discovery Doctrine, Plenary Power & Termination, visit us at http://www.iltf.org/native-land-law.
Alberta First Nations Band Win Right to Trial Over Oil Sands’ Effect on Treaty Rights
A small First Nations band in Alberta has racked up a big win against the energy industry, clearing the way for a trial over whether its treaty rights are being infringed upon as industrial development such as the oil sands expands.
The Beaver Lake Cree Nation argues the so-called cumulative effects of oil sands and other industries such as mining and forestry violated their treaty rights. The provincial and federal governments grant permits which allow for development. Beaver Lake Cree Nation launched a legal battle five years ago and now Edmonton and Ottawa have lost their attempt to have it tossed out.
Full article here.
Update in KBIC Member Suit against Michigan over Pig Farming
Here is the first amended complaint in Turunen v. Creagh (W.D. Mich.):
Turunen First Amended Complaint
Michigan previously moved to dismiss here:
First post was here.
Dreveskracht on Montana’s War against the Bison (and Montana Indian Country)
Here.
An excerpt:
Read more at http://indiancountrytodaymedianetwork.com/2013/05/12/montanas-bison-bills-another-attack-buffalo-countryTo ward off the threat of brucellosis transmission to livestock and humans, the Montana state legislature has introduced five bills aimed at ridding the state of its free-ranging bison.[8] This legislation is expressly inclusive of all of both Montana Indian Country and off-Reservation Treaty-protected lands. History repeats itself as non-tribal government once again threatens to take the buffalo from Native Americans, particularly Great Plains Indian Treaty Peoples. Indian leaders from the Fort Peck, Crow, and Fort Belknap Reservations have joined forces with wildlife advocates, sportsmen’s groups, and conservationists to oppose the bills.[9] This article discusses the arguments of both sides, and examines the validity of Montana’s proposed legislation vis-à-vis Indian inherent sovereignty and Treaty rights.
Tribes and the Michigan Wolf Hunt
The Michigan Natural Resources Commission has approved a wolf hunting season here in Michigan, just one day after Governor Snyder signed legislation authorizing the Commission to determine whether to allow such hunting.
In recent years, Anishnaabe tribes (Ojibwe, Potawatomi, and Odawa) in Michigan, Wisconsin, and Minnesota have opposed state-sanctioned wolf-hunting. Wolves are important in the religious teachings of Anishnaabe people, and it is often said that the Ma’iingun (wolf) and the Anishnaabe are brothers whose fates are linked.
Senator Casperson of Escanaba, the primary sponsor of the legislation, dismissed tribal religious concerns during the process, stating:
“I don’t know how you negotiate that, because that’s a personal belief they have. But at the end of the day, I do think many people don’t hold that same belief, so what do we do. Do we hold fast to it because the tribes say it’s sensitive to them, when many of my citizens don’t hold that same value?”
Aside from the Senator’s ironic statement, some Michigan tribes have also based their objections on the legal relationship between the tribes, the state, and the United States. The 1836 Treaty of Washington reserved the hunting, fishing, and gathering rights of what are now five of Michigan’s Ojibwe and Odawa tribes throughout much of the State of Michigan. In 2007, those five tribes and the State entered into a court-approved agreement to clarify tribal rights on lands ceded under that treaty.
Section 22 of the 2007 Agreement addresses tribal “activities designed to restore, reclaim, or enhance fish, wildlife or other natural resources within the inland portion of the 1836 Ceded Territory through stocking, rearing, habitat improvement, or other methods.”
Section 23 of the 2007 Agreement addresses consultation between the tribes and the State. In particular, Section 23.4 provides:
“23.4 The State and the Tribes shall notify each other at least annually of proposed regulatory changes (including changes in management units or methodologies for determining the allowable harvest of any species) before they take effect (except where, due to an emergency or other matter beyond the control of the Parties it is not possible to provide advance notice) and seek to resolve any concerns arising from such changes before implementing them. Upon request, the State and the Tribes shall share information regarding the rationale for such changes and their anticipated effects (e.g., changes in species abundance, distribution, or age or sex ratios). Upon request, the State and the Tribes shall provide similar information for any existing regulation, management unit or allowable-harvest methodology. The information provided shall be sufficiently detailed to enable the other Parties to fully understand the regulation, management unit or allowable-harvest methodology at issue and any underlying data associated with it, and to enable them to make constructive suggestions for improvements to such regulation, management unit or harvestable surplus methodology.”
I am citing these provisions to highlight one basis of tribal opposition to the State’s proposed authorized wolf hunt. I am not privy to information regarding the level of consultation between the tribes and the State, and whether the State has satisfied its obligations under the 2007 Agreement. That issue may well be decided in the near future.
I can say that merely including tribes in a general public comment process does not fulfill tribal consultation requirements at either the state or the federal level. That is not the legally appropriate forum in which to address tribal treaty rights. If that is the extent to what occurred with the wolf hunt, I’m not sure that all of the tribes that were parties to the 2007 Agreement would believe that the State has fulfilled its obligations.
Lastly, the rights reserved in the 1836 Treaty necessarily include the right to protect habitats and ecosystems that would support hunting, fishing, and gathering.
It is well-documented that wolves are considered a “keystone” species in their natural habitat (which includes most of northern Michigan). This means that their existence and well-being affects the health and well-being of many other species of plants and animals in their ecosystem.
To the extent that Michigan’s state-sanctioned wolf-hunt impacts tribal rights to hunt, fish, and gather other species, then those tribes may have a valid basis for challenging the size and scope of the hunt.
*Any views expressed in this post are solely those of the author, and not representative of any tribes or other organizations.
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