News article here via How Appealing.
Supreme Court Rejects Asian Carp Injunction Again
News article here via How Appealing.
News article here via How Appealing.
From Indianz:
The Little Traverse Bay Bands of Odawa Indians of Michigan is reportedly considering a new open meetings policy.
The tribal council at one point barred non-members from council meetings. The policy changed and The Petoskey News-Review has been able to cover most of the meetings but the paper was recently barred from an election board meeting.
According to the the tribal code, the tribal council, by motion, can bar non-members from its meetings. However, the tribal constitution says the tribal cannot make any laws abridging the freedom of the press.
A draft statute of a new open meetings policy was discussed at a tribal council meeting on Sunday but the paper wasn’t present for that portion of the meeting.
Get the Story:
Tribe comes to aid of Bell’s; discusses open meetings statute (The Petoskey News-Review 3/9)
Bruce Johnsen has posted an abstract of his interesting article, “Salmon, Science, and Reciprocity on the Northwest Coast,” on SSRN. Full text article here.
The abstract:
Severe depletion of many genetically distinct Pacific salmon populations has spawned a contentious debate over causation and the efficacy of proposed solutions. No doubt the precipitating factor was overharvesting of the commons beginning along the Northwest Coast around 1860. Yet, for millenia before that, a relatively dense population of Indian tribes managed salmon stocks that have since been characterized as “superabundant.” This study investigates how they avoided a tragedy of the commons, where, in recent history, commercial ocean fishers guided by scientifically informed regulators have repeatedly failed. Unlike commercial fishers, the tribes enjoyed exclusive rights to terminal fisheries enforced through rigorous reciprocity relations. The available evidence is compelling that they actively husbanded their salmon stocks for sustained abundance.
Here.
An excerpt:
There is a relatively short list of people who like mail-order cigarettes: teenagers, adults evading sales taxes and the Seneca Nation of Indians of western New York, which dominates the national market.
Even the big tobacco companies oppose the practice, in part to stamp out the Senecas’ competition. And with the industry’s strange-bedfellow backing, a bill to block the shipment of cigarettes passed the House of Representatives last spring by a vote of 397 to 11. A Senate committee approved it unanimously last fall.
But then the Senecas, who control a gambling and cigarette empire that brings in more than $1 billion a year, began a campaign of back-room lobbying and public political threats. That now appears to have shut down the legislation and kept the tribe in the cigarette business, a case study in the power of a well-financed special interest to thwart what had seemed to be a national consensus.
“Isn’t that the way things go in the American system?” asked Richard Nephew, co-chairman of the Seneca Nation’s foreign relations committee. “It is something new for us to actively get involved in the American political process,” he said. “But we are trying to learn what works in America, and I guess making political contributions is something that works.”
As recently as December, a ban on mail-order cigarettes called the PACT Act — for Prevent All Cigarette Trafficking — looked all but certain to become law. After the Senate Judiciary Committee approved the House measure, Senator Harry Reid of Nevada, the majority leader, prepared the bill for passage on the floor. No senator has publicly opposed the legislation.
But at the last minute, two or three Democratic senators told party leaders privately that they might block the bill, according to senior Senate Democratic aides. They spoke on the condition of anonymity because they were not authorized to speak publicly.
Here: Oglala Sioux Tribe v. US Army Corps Cert Petition
Lower court materials here and here.
Questions presented:
1. Does the 5-year statute of limitations of Section 12 of the Indian Claims Commission Act of 1946 (“ICCA”), 60 Stat. 1049, 1052 (formerly codified at 25 U.S.C. § 70k (repealed)), which applies only to claims accruing no later than August 13, 1946, bar federal court jurisdiction over an Indian tribe’s claim that the Government breached its trust responsibility to consult with the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe’s cultural and historic heritage located on federal lands within the tribe’s aboriginal territory, specifically before making the transfers of federal lands authorized by the Water Resources Development Act of August 17, 1999, Pub. L. 106-53, Title VI, §§ 601-609, 113 Stat. 269 (“WRDA”), where the tribe’s breach-of-duty-to-consult claim does not involve either an historical land claim for money damages or the revision of treaties, contracts or agreements between the tribe and the United States, and where the breach occurred no earlier than 2002 when the WRDA transfers began?
2. Does an Indian tribe have standing to pursue its claim that the Government breached its trust responsibility to consult with the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe’s cultural and historic heritage located on lands within the tribe’s aboriginal territory, where the merit of the tribe’s non-frivolous contention, that it has a legally protected interest in the tribe’s aboriginal territory based on the Government’s trust relationship with the Indian tribes, must be assumed in assessing the tribe’s standing to sue? Continue reading
I just posted a draft of my paper, “‘Occupancy’ and ‘Settlement’: Anishinaabemowin and the Interpretation of Michigan Indian Treaties” on SSRN. Any constructive feedback would be helpful.
Here is the abstract:
The 2007 Consent Decree in United States v. Michigan, a major victory for the tribal interests, recognized that the lands in ownership by the state, federal, and tribal governments – vast swaths of Michigan – would stand in for the lands not yet “required for settlement.” The Michigan Indians’ “privilege” to continued “occupancy” acquired legal determinacy. This short essay examines how Michigan Indian treaty negotiators would have understood the meaning of the words “settlement” and “occupancy,” and how that understanding strongly influenced the land base in which Michigan Indians can continue to exercise their inland treaty rights in accordance with the 1836 Treaty.
From the Traverse City Record-Eagle:
Three decades ago many thought that the Great Lakes fisheries resources would be ruined by American Indian tribes exercising “treaty-fishing” rights. After the federal courts confirmed these treaty-reserved rights, the tribes demonstrated their primary concern is protection of the Great Lakes fisheries.
Ironically, these “treaty-fishing” rights now might prove crucial in protecting fisheries resources for all of Michigan’s citizens against the Asian carp invasion.
The United States Supreme Court has denied Michigan’s request for an injunction closing the shipping locks outside of Chicago to prevent any further migration of Asian carp into the Great Lakes. In the midst of the competing claims debating the economic losses of closing shipping to the Mississippi River system compared to potential harm to Great Lakes fisheries, all parties — Attorney General Cox, Gov. Granholm, the Army Corps of Engineers and other federal agencies — agree that the damage to the Great Lakes fisheries will be profound.
It has been almost six years since the U.S. Fish and Wildlife Service estimated that “Asian carp could have a devastating effect on the Great Lakes ecosystem and a significant impact on the $7 billion fishery.” During this time the Army Corps of Engineers failed to act promptly, in effect fiddling while Rome burned. To the extent the Army Corps is responsible for the impending disaster, the tribes may be better situated than the state to challenge the federal government.
Briefs here (still waiting on OSG brief and reply briefs):
Amicus Brief Supporting Cert Petition
Second Amicus Brief Supporting Petitioner
Lower court materials are here.
Questions Presented:
SCIT Order on Michigan Experts
An excerpt:
Legal scholars have suggested a variety of solutions to the problems associated with evaluating historical testimony, including the use of neutral, court-appointed experts; requiring the judge, or a special master, to evaluate the primary source data personally; and eliminating the “reliability” prong of the Daubert test. See Maxine D. Goodman,Slipping Through the Gate: Trusting Daubert and Trial Procedures to Reveal the ‘Pseudo-Historian’ Expert Witness and to Enable the Reliable Historian Expert Witness–Troubling Lessons from Holocaust-Related Trials, 60 Baylor L. Rev. 824, 861-73 (2008). Perhaps some of those solutions would provide for more nuanced and reliable historical testimony. In this case, however, a neutral expert was not requested or appointed, the demands of the Court’s docket make independent primary-source research impracticable, and development of a new test for admissibility of historical testimony seems unnecessary. More importantly, the expert opinions provided, while perhaps flawed in some respects, are reasonably reliable and will be helpful in determining the ultimate issue in this case. Consequently, they are admissible under Rule 702, and will be considered and weighed appropriately.
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