As reported in the September 2nd issue of Win Awenen Nisitotung, Sault Tribe Inland Conservation Committee elected not to support a moose hunting season in Michigan. Provisions in the 2007 Inland Consent Decree require tribal (and state) approval of moose hunting. This outcome may frustrate people interested in moving forward with a moose hunt in Michigan; but for Sault Tribe officials, the precautionary route was prudent given the small number of moose that currently reside in the Upper Peninsula and the uncertainty over their population dynamics.
treaty rights
Federal Government and Cherokee Nation Responses to Cherokee Freedmen Motion to Enjoin Principal Chief Election
Here are the updated materials in Vann v. Salazar (D. D.C.):
Cherokee Nation Response to Vann Motion
The Vann motion is here.
Interior Warns Cherokee Nation that Principal Chief Election May Be Invalid
The text:
United States Department of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
SEP 0 9 2011
The Honorable S. Joe Crittenden
Acting Principal Chief, The Cherokee Nation
P.O. Box 948
Tahlequah, Oklahoma 74465-0948
Dear Chief Crittenden:
We have followed the news of the upcoming election for Principal Chief with interest and growing concern. I write to advise you that the Department of the Interior (Department) has serious concerns about the legality of the Cherokee Nation’s actions with respect to the Cherokee Freedmen, as well as the planned September 24, 2011, election.
On August 22, 2011, the Supreme Court of the Cherokee Nation issued its decision in the matter of the Cherokee Nation Registrar v. Nash, Case No. SC-2011-02. In this decision, the Court vacated and reversed the earlier decision of the Cherokee District Court, as well as the temporary injunction that maintained the citizenship of the Freedmen. We have carefully reviewed this most recent decision. I am compelled to advise you that the Department respectfully disagrees with the Court’s observations regarding the meaning of the Treaty of 1866, between the United States of America and the Cherokee Nation (Nation), 14 Stat. 799, as well as the status of the March 3, 2007, amendment to the Cherokee Constitution.
The Cherokee Constitution ratified by the voters in June 1976 expressly provides that “[n]o amendment or new Constitution shall become effective without the approval of the President of the United States or his authorized representative,” which is the Secretary of the Interior. The Department declined to approve the 2003 amendments of the 1976 Constitution, as evidenced by the August 30, 2006, letter from Associate Deputy Secretary James Cason to Principal Chief Chad Smith and the March 28, 2007, letter from Assistant Secretary -Indian Affairs (AS-IA) Carl Artman to Principal Chief Smith, copies of which are enclosed. Although on August 8, 2007, AS-lA Artman approved a June 23, 2007, amendment to the 1976 Constitution that removes the requirement for Secretarial approval of amendments, that decision is not retroactive. Thus, the decision of the Cherokee Nation Supreme Court appears to be premlsed on the misunderstanding that both the unapproved Constitution adopted in 2003, and the March 3, 2007, amendment that would make Freedmen ineligible for citizenship, are valid. The Department has never approved these amendments to the Cherokee Constitution as required by the Cherokee Constitution itself.
Furthermore, we understand that in 2010 the Nation adopted new election procedures which will govern the upcoming election for Principal Chief. Those procedures were never submitted to, nor approved by, the Secretary of the Interior or any designated Department of the Interior official as required by the Principal Chiefs Act, (Pub. L. 91-495, 84 Stat. 1091). Pursuant to the Principal Chiefs Act enacted by Congress in 1970, the Secretary is required to approve procedures for the selection of the Principal Chief of the Cherokee Nation.
We are concerned that the recent decision from the Cherokee Nation Supreme Court together with 2010 election procedures that have not been approved by the Secretary of the Interior as required by the Principal Chiefs Act, will be the basis for denying Cherokee Freedmen citizenship and the right to vote in the upcoming election. The Department’s position is, and has been, that the 1866 Treaty between the United States and the Cherokee Nation vested Cherokee Freedmen with rights of citizenship in the Nation, including the right of suffrage.
I urge you to consider carefully the Nation’s next steps in proceeding with an election that does not comply with Federal law. The Department will not recognize any action taken by the Nation that is inconsistent with these principles and does not accord its Freedmen members full rights of citizenship. We stand ready to work with you to explore ways to honor and implement the Treaty.
Sincerely,
Larry Echo Hawk
Assistant Secretary -Indian Affairs
Enclosures
Update in Yakama v. Holder: Federal Court Orders US to Comply with Discovery Requests
An excerpt from the order:
[T]he waiver of sovereign immunity [under the APA] applies to all actions seeking non-monetary relief that are cognizable before the federal courts, including actions brought pursuant to the APA and other actions which provide their own private right of action. Yakama seeks non-monetary relief in this case. Accordingly, any claims by Yakama, whether brought independent of or through the APA, may not be barred by sovereign immunity (citations omitted).
The Court agrees with Yakama’s argument that discovery as to the policies that govern the Federal Defendants’ actions with the Yakama, particularly with regard to notification and limitations on actions while on tribal lands, and discovery as to the Federal Defendants’ decision not to notify the Yakama before entering onto tribal lands, as well as discovery regarding the actual entry onto tribal lands is needed to establish whether the Court has jurisdiction.
Here are the new materials in Yakama Indian Nation v. Holder (E.D. Wash.):
ORDER ON MOTIONS TO STAY DISCOVERY AND MOTIONS FOR EXTENSION
Memorandum in Support of United States’ Motion to dismiss
Yakama Nation’s Memorandum in Opposition to Federal Motion to Dismiss
United States’ Memorandum in Support of Motion for Protective Order
Memorandum in Opposition to Motion for Protective Order
Reply on United States’ Motion for Protective Order
Here is the Nation’s amended complaint.
Tzeachten First Nation v. Canada Lands Co.
An application by Canada Lands Co. to dismiss an action brought by Chief Joe Hall on behalf of the members of Tzeachten First Nation, the Skowkale First Nation and the Yakweakwioose First Nation, was rejected by the British Columbia Supreme Court. Canada Lands Co. claimed that Tzeachan’s action was barred by res judicata. Alternatively, Canada Lands Co. asked that the claim be struck because it disclosed no reasonable claim or was an abuse of process.
The judge denied the application. Here’s the decision.
Louis v. British Columbia: Crown Acted Honourably – Discharged Its Duty To Consult Obligation
It looks like Chief Reginald Louis and members of the Stellat’en First Nation are out of luck. They sought judicial review and a number of orders on the basis that the provincial Crown (B.C. Ministry of Energy, Mines and Petroleum Resources) failed to adequately and meaningfully consult them. Their concern was in relation to a mine located on land over which they have asserted Aboriginal title and rights. Here’s the decision.
Treaty Rights and the Cherokee Freedmen Decision
This isn’t a post on the merits of the Freedmen case, but instead a rumination about the import of U.S.–tribal treaty rights in tribal courts. Generally, do treaty rights have legal import in tribal court?
My reading of the Nash case (here) is that anyone claiming to assert treaty rights against an Indian tribe who was a party to the treaty may be foreclosed from bringing those claims without the presence of the United States (the other party to the treaty) as a party to the litigation. If that reading has broad implications for Indian treaties, then no treaty right could effectively be litigated in tribal court without the presence of the United States. An odd result, to be sure.
This isn’t a purely academic question. A few years back, the Ninth Circuit wondered why it was still deciding treaty rights subproceedings in United States v. Washington that don’t involve either the United States or Washington, or really any of the underlying issues about the treaty right. Many of the cases are intertribal conflicts. There may be an intertribal court for the Puget Sound treaty tribes someday, all without the presence of the United States. And properly so.
This all suggests the United States doesn’t need to be a party to treaty rights litigation in every case.
Jensen Bros. Appeal Dismissed for Failure to File on Time
Chickasaw and Choctaw Nations Sue Oklahoma over Water Rights Guaranteed by the Treaty of Dancing Rabbit Creek
Here is the complaint, Chickasaw Nation v. Fallin (W.D. Okla.):
NYTs on New York’s Thruway Dispute with Seneca Nation
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.
Turtle Talk 
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