treaty rights – Page 62

Based on the finding above that the finished cigarettes and roll-your-own tobacco [24] are not directly derived from trust land, King Mountain can prove no set of facts in support of the claim that Washington’s escrow statutes are in conflict with the Treaty or federal law which would entitle Plaintiffs to relief. Escrow is required for all non-exempt sales subject to the State’s cigarette taxes, regardless whether those sales occur on or off the reservation. Escrow isnotrequired for tax exempt King Mountain sales of cigarettes purchased directly by enrolled members of federally recognized Indian tribes from an Indian tribal jurisdiction of the member’s tribe for the member’s own use. If there were any past sales that were exempt from state excise tax, but for which King Mountain has deposited money into escrow anyway, King Mountain has failed to offer evidence in support of a refund claim and the court expresses no opinion concerning the same. Accordingly, King Mountain, a NPM, is required to comply with the escrow statute for all past and future sales deemed “units sold.”

Federal Court Dismisses Treaty “Bad Men” Claim in Police Killing on Uintah and Ouray Indian Reservation

April 8, 2013Matthew L.M. Fletcher

Here are the treaty claim materials in Jones v. Norton (D. Utah):

DCT Order Dismissing Treaty Claim

Motion for Judgment on Pleadings

Plaintiffs’ Opposition

KBIC Member Sues Michigan DNR over State Regs Affecting Pig Farming

April 1, 2013Matthew L.M. Fletcher3 Comments

Here is the complaint in Turenen v. Michigan Dept. of Natural Resources (W.D. Mich.):

Turunen Complaint

An excerpt:

Plaintiff is a family farmer and a member of the Keweenaw Bay Indian Community (KBIC) residing and farming in the Western Upper Peninsula of Michigan. Plaintiff has been raising crops and livestock for the past 23 years on land located in the territory ceded to the United States of America via the 1842 Treaty between the United States and the Lake Superior Chippewa Indians, 7 Stat. 591 (the 1842 Treaty). Plaintiff’s farming operations are conducted pursuant to rights reserved in Article II of the 1842 Treaty and pursuant to a license from KBIC. Plaintiff’s treaty-protected farming activities are being threatened by the policies and activities of Defendants which seek to destroy a certain agri-industry in the State of Michigan, so-called hunting estates. To achieve this questionable goal Defendants have sought to prohibit Plaintiff’s pigs through an Invasive Species Order which literally can be applied to any pig in existence. Further, Defendants’ policies make no provision for Plaintiff’s treaty-protected farming activities and Defendants’ seek to impose their regulatory schemes upon Plaintiff. Plaintiff invokes this Court’s jurisdiction in order to protect her treaty reserved right to farm within the territory ceded to the United States by the 1842 Treaty.

Judge Martinez Issues Permanent Injunction Favoring Treaty Tribes in U.S. v. Washington Culverts Subproceeding

March 29, 2013March 30, 2013Matthew L.M. Fletcher6 Comments

HUGE.

Here is the order (~~briefs shortly~~):

752 – Memorandum and Order Granting Perm. Injunction

Tribal Supplemental Brief

US Supplemental Brief

Washington Supplemental Brief

UPDATE: Perm Injunction

Judge Martinez’s 2007 order (and materials) is here.

Brian Pierson on Wisconsin Indian Treaty Rights and Proposed Mining Activities

March 8, 2013Matthew L.M. Fletcher2 Comments

Here.

An excerpt:

The Wisconsin Legislature has approved amendments to Wisconsin law intended to pave the way for Gogebic Taconite to mine iron ore in the Penokee Hills of Ashland County. Wisconsin’s tribes have been outspoken in their opposition. The Bad River Chippewa, whose reservation lies directly in the path of any mine runoff, has been especially vocal.

The six Chippewa tribes have asserted that their treaties with the federal government give them special status and entitle their concerns to greater weight. They are right.

By the 1842 treaty at La Pointe, the Chippewa ceded to the United States approximately 12 million acres, including the Penokee Hills, receiving in return an amount that the Indian Claims Commission later called “unconscionable.” A treaty, the Supreme Court observed in United States vs. Winans, is “not a grant of rights to the Indians, but a grant of right from them – a reservation of those not granted.” In the 1842 treaty, the Chippewa reserved “usufructuary” rights in the territory they ceded, including the right to hunt, fish, trap, harvest wild rice and engage in other activities to make a living from the land.

Washington Supreme Court Decides Water Rights Case Involving Yakama Indian Nation

March 8, 2013Matthew L.M. Fletcher1 Comment

Here is the opinion in Dept. of Ecology v. Acquavella:

Wash SCT Opinion

And the briefs are here:

North Dakota SCt to Hear Aboriginal Rights Case Tomorrow

February 26, 2013February 26, 2013Matthew L.M. Fletcher1 Comment

Here is the website linking to the materials in State v. Delorme.

Here are the materials:

And a description of the issues from each party:

Appellant’s Statement of the Issues:
The district court erred when they denied the Appellant’s Motion to Dismiss due to lack of subject matter jurisdiction of the Court based on Appellant’s aboriginal usufructuary rights as guaranteed and preserved in the 1863 Treaty of Old Crossing.
The district court erred when they granted the State’s Motion in Limine concerning reference to any land in Eddy County where these offenses are alleged to have occurred as being part of an Indian reservation or Indian Country, that the Appellant was licensed by the tribe as a guide and outfitter.

Appellee’s Statement of the Issues:
Issue 1 Whether an outfitting license issued by the Spirit Lake Sioux Tribe to one of its members, which is then transferred to a non-member, precludes state jurisdiction over the non-member’s off-reservation outfitting activities?
Issue 2 Whether an aboriginal right to hunt can be a defense to a non-hunting charge?
Issue 3 Whether North Dakota will be the only jurisdiction to expand aboriginal hunting rights to include “ancillary,” non-hunting activities?
Issue 4 Whether the land on which the violations occurred constitutes either aboriginal land or Indian country?
Issue 5 Whether an 1863 treaty, which conveyed “all” Indian interests, preserved a right to hunt?
Issue 6 Whether any right to hunt established by the 1863 treaty terminated as a result of Indian Claims Commission proceedings and, if not, is the right enforceable through an Indian group that has not maintained a political identity and is the right subject to state regulation?

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

February 25, 2013Matthew 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”).