treaty rights

Skokomish Tribe Files Treaty Hunting/Gathering Suit against State of Washington

Matthew L.M. Fletcher1 Comment

Here is the complaint in Skokomish Indian Tribe v. Goldmark (W.D. Wash.):

1 – Complaint

An excerpt:

2. Plaintiff, Skokomish Indian Tribe, brings this action to protect the privilege of hunting and gathering roots and berries on open and unclaimed lands, guaranteed by Article 4 of the Treaty of Point No Point of January 26, 1855, (“Privilege”). 12 Stat. 933.
3. Plaintiff, Skokomish Indian Tribe’s territory as related to the Privilege of hunting and gathering includes:
a. All lands within the Twana territory; and
b. All lands within the ceded area boundaries established in Article 1 of the Treaty of Point No Point of January 26, 1855 (12 Stat. 933); and
c. All lands within the exterior boundaries of Plaintiff, Skokomish Indian Tribe’s Reservation; and
d. All lands within Plaintiff, Skokomish Indian Tribe’s traditional use areas; and
e. All other lands not within the exclusive hunting and gathering territories of other Indian tribes or bands recognized by the Secretary of the Interior.
(“Territory”).

Harvard Law Review Student Note: “Indian Canon Originalism”

Matthew L.M. Fletcher1 Comment

Harvard Law Review has published “Indian Canon Originalism.”

From the article:

Indian treaties are “quasi-constitutional” documents. So why not read them like constitutions? In fact, scholars of Indian law have urged federal judges to interpret Indian treaties “in the same manner as [they do] constitutional provisions.” But no scholar has ever explained how the principles of constitutional interpretation would actually apply to an Indian treaty — and whether those principles might change in that new environment. This Note attempts to do just that.

International Indian Treaty Council Files Action with UN CERD in Conjunction with Chief Theresa Spence and the Mushkegowuk People of Attawapiskat First Nation

Matthew L.M. Fletcher2 Comments

Press release here:

Final Press Release IITC Attawapiskat Feb 18 2013

NYTs “Disunion” Series Profiles Cherokee Nation after the Civil War

Matthew L.M. Fletcher

Here.

Fascinating. My favorite part:

By 1862, Ross had become disillusioned with the Confederate government. The first major military engagements in Indian Territory proved disastrous for both the Confederacy and the Cherokees. Retreating from Indian Territory, the Confederacy left the Cherokees open to Union advances and without supplies for Cherokee troops and destitute civilians. Although Ross believed the Confederacy was shirking its treaty promises, the Confederate colonel Douglas H. Cooper called upon Ross to fulfill his obligations by ordering all Cherokee men of fighting age to “take up arms to repel invasion.”

Union Capt. Harris S. Greeno was aware of Ross’s dissatisfaction with the Confederacy, and he ordered the arrest of Ross and his family at their plantation home, Rose Cottage, in present-day eastern Oklahoma. They were quickly paroled and escorted to Union territory, and they retreated to his wife’s family home in Philadelphia. Ross would spend the remainder of the war attempting to convince the Lincoln administration of the Cherokee’s loyalty and commitment to the Union cause.

Federal Court Dismisses Lower Elwha Tribe from Challenge to Elwha Fish Hatchery

Matthew L.M. Fletcher1 Comment

Here are the updated materials in Wild Fish Conservancy v. National Park Service (W.D. Wash.):

126 -ORDER GRANTING TRIBAL MTN TO DISMISS

114 – Tribal Mtn to Dsm – Subject Matter

116 – US Response Tribe Motion Dismiss

117- WFC Response Tribal Motion Dismiss

119 – LEKT Reply to Response – Mtn to Dismiss

Prior posts with materials are here, here, here, and here.

Federal Court Rejects Yakama Treaty Defense to Federal Taxes on King Mountain Tobacco Products

Matthew L.M. Fletcher

Here are the materials in King Mountain Tobacco Co., Inc. v. Alcohol and Tobacco Tax and Trade Bureau (E.D. Wash.):

DCT Order Denying Yakama Motion

Yakama Motion for Partial Summary J

Federal Opposition Memorandum

Yakama Reply

An excerpt:

This Court already has held that King Mountain does not enjoy an exemption from the federal excise tax on tobacco products under Capoeman because the tax is not imposed on products directly derived from the land. Therefore, to the degree that Article II contains express exemptive language, the exemption to taxation created by Article II would not apply to the facts of this case. Id. Accordingly, the Plaintiff has failed to establish an exemption to the excise tax under the Treaty.

The court also rejected claims that the General Allotment Act forbid the federal taxes as well:

In this case, Mr. Wheeler is the allottee, but King Mountain is the tax payer. The tax lien statute applies to the property of the “person liable to pay” the unpaid tax. 26 U.S.C. § 6321. Although the Court is aware that Mr. Wheeler’s assets could be subject to lien if King Mountain were found to be Mr. Wheeler’s alter ego, see G.M. Leasing Corp. v. United States, 429 U.S. 338, 350–51, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977), the record is devoid of any evidence that King Mountain is Mr. Wheeler’s alter ego. Accordingly, any lien would be imposed on King Mountain’s property. As the trust property is held for the benefit of Mr. Wheeler, it is not an asset of King Mountain. Therefore, under the reasoning of Anderson, the Capoeman exception to taxation would not apply to income earned by King Mountain.

Materials in a related case are here.

Leonard Masten on why PacifiCorp should remove its Klamath River Dams

Ann Tweedy

Here.

International Treaty to Protect the Sacred from Tar Sands Projects

Matthew L.M. Fletcher5 Comments

Text here. Video here.

Legal analysis on the import of the treaty from the international law scholars at Opinio Juris, here. An excerpt:

Beyond the U.S. law, there’s also a fairly interesting issue of how international law regards this sort of treaty-making.  As I’ve written previously, international law imposes two conditions on treaty-making by a sub-national actor:  (1) explicit treaty-making authority from the State of which it is a component part (whether ex-ante or ex-post); and (2) the consent of potential treaty-partners to the sub-national actors’ participation in the treaty itself.  Here, it seems we have a willing group of treaty partners, so the treaty seems OK on the second element (that is, assuming the Canadian First Nations are themselves authorized to make treaties under Canadian law).  Still, there are questions as to whether the United States has to authorize this treaty, whether it has done so (or will need to do so going forward), and why it would ever do so when the treaty’s objective would be to lobby and/or constrain federal government behavior.  Now, there is an argument that, as indigenous peoples, Native American tribes should not be subject to the standard rules for treaty-making by sub-national actors (indeed, Article 36(1) of the UN Declaration on Indigenous Rights makes just such a claim).  But, the United States was one of four nations to object to that Declaration (along with Canada, Australia and New Zealand), so I’m hard pressed to see it getting traction in this case, especially where the treaty involves an alliance of indigenous peoples to oppose federal licensing efforts (and with it perhaps some key aspects of U.S. energy policy).

As such, I think the ball is now firmly in the Obama Administration’s court.  I’m interested to see how it responds to this treaty (including, which Agency takes the lead in responding to it).  I suppose silence is a possible course of action.  But, if the federal government remains silent, I think that might lead to arguments of U.S. tacit approval for this treaty in particular, and even more broadly, a right of treaty making with foreign powers for U.S. Native American tribes.

For a primer on intertribal treaty making, see Wenona Singel’s Indian Tribes and Human Rights Accountability (email me if you want a pdf).

Cherokee Nation En Banc Petition in Vann v. Salazar

Matthew L.M. Fletcher

Here:

2013-01-28 Appellee Cherokee Nation Petition for Rehearing (without attachments)

Panel materials here.

The D.C. Circuit has had few, if any, en banc hearings in the last few years because the court is severely understaffed. There have been, however, a rash of dissents from denial of en banc petitions which serve as a sort of marker for later review. Worth it to see if anything happens here.

IPR: Michigan Tribes Get Behind Effort to Repeal Wolf Hunt Law

Matthew L.M. Fletcher2 Comments

Here.