treaty rights

NYTs on New York’s Thruway Dispute with Seneca Nation

Matthew L.M. Fletcher

Here.

An excerpt:

Over the last few weeks, this stretch of highway has emerged as the unlikely flash point in escalating disputes between the Seneca Nation of Indians and the State of New York — disputes over sovereignty, and money, that have led the tribe to seek the intervention of President Obama and have twice prompted Gov. Andrew M. Cuomo to send high-level delegations to western New York in an effort to make peace. The tribe, saying that its leadership was pressured 57 years ago into accepting a one-time payment of $75,000 to allow the Thruway to cross its Cattaraugus reservation, is now dunning the state for more than $80 million — $1 for every vehicle that has crossed the reservation on the Gov. Thomas E. Dewey Thruway since 2007. The state, in turn, is seeking hundreds of millions of dollars it says the tribe owes as a share of its cigarette sales and gambling proceeds.

Gitxsan Nation v. Gitxsan Treaty Society: No Reasonable Cause of Action

Peter Scott Vicaire

A British Columbia Supreme Court judge recently dismissed an action by the Gitxsan Nation against the Gitxsan Treaty Society (“GTS”) (oppression); Canada and British Columbia (breach of fiduciary duty and of duty of honour) and; the British Columbia Treaty Commission (negligence).

The plaintiffs’ complaint is that over the years the GTS has unduly restricted the involvement of the plaintiff hereditary chiefs and Indian bands in treaty negotiations. They complain that, amongst other things, GTS has declined to take direction or input from the Gitxsan chiefs, restricted debate on matters of concern to all Gitxsan, and conducted its affairs in a secretive and “oppressive” manner that was unfairly prejudicial to the plaintiffs.

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Former Sen. Mark Hatfield (R. Ore.) Walks On — Was a Member of the American Indian Policy Review Commission

Matthew L.M. Fletcher

Here is the WaPo article with his extended biography.

And a link to the Willamette University library (named after Sen. Hatfield) bio, which says he was a defender of Indian treaty rights. In this excerpt from Ronald Satz’ monograph on the Chippewa treaty rights fight in Wisconsin, Rep. Hatfield is quoted as labeling the backlash against treaty rights as “racism in all its ugly manifestations.” He also helped to negotiate the Umatilla Basin Project (here).

He introduced legislation to restore the Confederated Tribes of the Siletz Indians of Oregon (here).

Finally, the Hatfield School of Government at Portland State is home to the Institute for Tribal Government.

Journal Article Evaluates Treaty Provisions and their Import for Michigan Indian Education

Singel1 Comment

From the Indigenous Policy Journal’s Winter 2010 issue (link to article here).

The article, titled “The Treaty Basis of Michigan Indian Education,” was authored by Martin Reinhardt and John Tippeconnic, III.

Here’s the abstract:

A socio-historical content analysis of 16 treaties and 3 contemporary American Indian education laws at the federal level revealed that a certain amount of the treaty obligation may yet be unfulfilled regarding tribes currently located within the State of Michigan. Both monetary and non-monetary provisions were analyzed using the United States Supreme Court’s Canons of Treaty Construction. The treaty provisions were further categorized according to certain criteria based on the trust doctrine. The outcomes of the treaty analysis were then compared to the provisions of the Indian Education Act, the Indian Self-Determination & Education Assistance Act, and the Individuals with Disabilities Education Act. Responsibilities of each level of government, implications for school policy and procedures, and recommendations for further study are included.

Michael Blumm on the Columbia River Gorge and the History of Natural Resources Law

Matthew L.M. Fletcher

Michael Blumm posted his paper, “The Columbia River Gorge and the Development of American Natural Resources Law: A Century of Significance” at SSRN (H/t to Legal History Blog). Here is the abstract:

The Columbia River Gorge, site of the nation’s first national scenic area and the only near sea level passage through the Cascade Mountains, possesses the longest continuously occupied site of human habitation in North America. The Gorge has served as a major transportation corridor between the Pacific and the Great Basin for hundreds of years, is home to spectacular scenery, dozens of waterfalls, many sacred sites, and abundant recreational activities, including world-class kite boarding and wind surfing. The Gorge has also been the location of over a century of legal battles that have made major contributions to American natural resources law. From judicial interpretations of 19th Indian treaties, to the development of the largest interconnected hydroelectric system in the world, to ensuing declines in what were once the world’s largest salmon runs – ultimately resulting in endangered species listings – to innovative federal statutes concerning electric power planning and conservation and land use federalism, to compensation schemes for landowners burdened with regulation, to dam removal and conflicts between sea lions and salmon, the Gorge has spawned a legal history as rich as its geography. This article surveys these developments and suggests that no area of the country has produced more varied and significant contributions to natural resources law.

Chicago Public Radio: “Who Owns the Fish? How Tribal Rights Could Save the Great Lakes”

Matthew L.M. Fletcher

Here. The transcript:

In Leelanau County in Northern Michigan, a small Native American tribe has struggled for generations to survive economic and social hardships. The tribe has always been deeply connected to the lakes economically and culturally. The latest threat to that connection is environmental degradation, particularly invasive species. But the tribes are forming unexpected alliances with old enemies to fight the threat.

When you first arrive in the Leelanau Peninsula, you think: This is heaven in the Midwest. Lake Michigan stretches out everywhere you look, blue as the Caribbean. It is a place full of second homes and tourists. But there is one spot that is different from the rest.

Arthur Duhamel Marina sound fade up

Peshawbestown is the reservation for the Grand Traverse Band of Ottawa and Chippewa Indians, a group that has lived in this area longer than anyone. It doesn’t have any t-shirt shops or beach-front mansions. Instead, there are government offices, a casino, and a tribal marina. Ed John is a tribal fisherman who docks his fishing boat here.

JOHN: I can weld, and other things. But I enjoy fishing ’cause I am my own boss. I am not rich, but I don’t want to be rich, it’s working for me.

Tribes have always been dependent on the lakes. We asked Ed how invasive species have been threatening the tribes’ livelihood.

JOHN: I was just telling my buddy, we got these reporters down here, asking about invasive species. We know a thing or two about invasive species. First we had the Vikings and all these other countries taking, actually invading our space.

Ed’s wife fishes, and so does her cousin, Bill.

FOWLER: My name is Bill Fowler, I am a tribal commercial fisherman.

His nickname is Bear.

FOWLER: Because I’m as big as a bear and I work like a bear.

Fade up engine

Bill fishes with Jason Sams who helps haul in the nets. Also along for the ride is  Bill’s dauschund puppy, Beauford.

SAMS: He eats the face of the fishes. Faces ain’t worth any money anyway. He’s excited ‘cause he knows there will be fish soon.

It takes about an hour to reach the first fishing net.

FOWLER: Here fishy, fishy. Come here fishies.

Lake trout flop around on the dock, bleeding from the gills.

Fish flopping

Ice keeps them fresh till they get to shore, where Bill sells his catch under the name 1836 Fishing Company, in honor of the Treaty of 1836.

FOWLER: I named it that because the treaty is important to us to reserve our rights.

You see, back in 1836 the tribes gave away a huge chunk of land – one-third of the state of Michigan. In return they kept the right to hunt and fish. But much later, in the 1960s, the state of Michigan started heavily regulating commercial fishermen, including tribes, limiting where and how they fished.

John Bailey was a tribal leader at the time and says the regulations hurt the tribes.

BAILEY: Economically it would destroy us. And it would destroy us as Indian people because it’s something that has been passed down generation to generation.

Inspired by the Civil Rights movement in the south, tribes began using non-violent civil disobedience to protest the regulations. They ignored state fishing restrictions and said to the authorities, come arrest me.

According to John Bailey, a lot of whites didn’t react well.

BAILEY: One of the groups actually took pictures of Indian fisherman and flooded the state with wanted posters: Spear an Indian, Save a Trout. We had guns pulled on us. We had women verbally and physically assaulted.

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B.C. Supreme Court Keeps Aboriginal Title and Aboriginal Rights Severed

Peter Scott Vicaire1 Comment

In B.C. (Minister of Forests) v. Okanagan Indian Band, the province  sought direction, for an upcoming (November) trial, on the issue of the band mixing aboriginal title and aboriginal right, which had been severed into two different phases of the trial.

B.C. argued that Okanagan First Nation was incorrectly introducing the title issue during the rights phase, but Okanagan disagreed, stating that  the question of the Crown’s burden of proof to establish that the timber was Crown timber has always been an issue in the case, and in the severed trial, and that their recent (May) notice of a constitutional question simply clarifies that position.

The judge found in favor of the province, holding that the notice of constitutional question will be deferred to the second phase.

Moulton Contracting v. British Columbia: Collective Rights vs. Individual Rights

Peter Scott Vicaire5 Comments

Here’s an interesting case for civil disobedience-minded aboriginals to remember.  In Moulton Contracting v. B.C., several members of the Behn family of  Fort Nelson First Nation blockaded a logging road which they had traplines on.  They did so because, they asserted, British Columbia did not consult with Fort Nelson in any meaningful way and because the logging (done by Moulton Contracting) interfered with their Treaty 8 rights.

However, the trial judge struck these paragraphs of their statement of defence out (and the appellate court affirmed)  because, the court held, individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted were collective rights of the Aboriginal community. 

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Raid on Listuguj Mi’gmaq First Nation Commemorated in Parliament – 30 Year Anniversary

Peter Scott Vicaire

On Monday, Philip Toone, the NDP Member of Parliament for Gaspésie-Île-de-la-Madeleine made a statement in the House of Commons commemorating the 30th Anniversary of the Listuguj raid.

Mr. Speaker, today is the 30th anniversary of Listuguj raids. On June 11, 1981, armed provincial police officers and fisheries officers raided that Mi’gmaq community, arrested residents and seized their boats in order to prevent them from commercially fishing salmon.

 It was 30 years ago today, on June 20, 1981, that the provincial government ordered a second raid, but this time, the residents of Listuguj erected barricades to prevent access to their community. In 1993, the Mi’gmaq government drafted the Listuguj Mi’gmaq First Nation Law on Fisheries and Fishing.

 We are celebrating this act of self-government. Today, the Restigouche River is known as one of the best-managed salmon rivers in the country. This demonstrates that it is possible for the Canadian and first nations governments to develop and maintain reciprocal, non-violent relationships that are mutually beneficial.

Federal Court of Appeal Denies Remission of First Nation Tax Debt

Peter Scott Vicaire

In Waycobah First Nation v. Canada (Attorney General), the Federal Court of Appeal (Halifax) recently dismissed an appeal concerning the non-payment of taxes by Waycobah First Nation, a small community in Cape Breton Island, Nova Scotia.  Relying on an 18th century treaty, Waycobah didn’t collect HST taxes from non-aboriginals when they purchased gas and cigarettes from the reserve-owned gas station.  By the time the tax man did cometh, Canada claimed that Waycobah owed $1.3 million, and after an agreed upon repayment schedule was not adhered to, it eventually rose to $3.4 million.

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