Here is the opinion, per Judge Canby — En Banc Opinion
Thanks to A.S.
treaty rights
News Coverage on Criminal Charges in U.P. Illegal Gillnetting Case
From the Escanaba Daily Press:
ESCANABA – Sentences will be handed down within the next six weeks for two men arrested in connection with illegal gill netting on Big Bay de Noc earlier this month, according to Delta County District Court officials.
Kerry Todd Johnson, 27, Cooks, and Daryl John Tatrow, 48, Garden, each pleaded no contest to a charge of using illegal fishing devices. The misdemeanor carries a maximum punishment of 90 days in jail, $1,000 fine, and revocation of one’s fishing license for three years.
Tatrow, who appeared in district court Wednesday, also pleaded no contest to one count of attempted assaulting/resisting/obstructing a law enforcement officer for fleeing during his arrest. The charge carries a maximum sentencing of one year in jail and a $1,000 fine.
Johnson is scheduled to be sentenced in district court on Dec. 21. Tatrow will be sentenced on Jan. 4.
A third man arrested in connection with the alleged illegal gill-netting operation, will be charged in the Sault Ste. Marie Band of Chippewa Indians Tribal Court for subsistence fishing without a license, according to officials from the Department of Natural Resources. His name was unavailable.
Michigan DNR Makes Arrests for Illegal Gillnetting
From the Escanaba Daily Press:
GARDEN – Three men were arrested Monday in an alleged illegal gill netting operation on Big Bay de Noc, Department of Natural Resources conservation officers said.
The 1,100 pounds of fish seized consisted mainly of whitefish, with smaller quantities of burbot and walleye.
The wholesale value of the whitefish was placed at $860. In addition a 14-foot boat, motor and trailer were also confiscated, along with 1,200 feet of gill net and other gear used in the operation.
According to Debbie Munson Badini of the DNR Regional Office in Marquette, a misdemeanor charge is being sought through the Delta County prosecutor’s office for fishing with an illegal device. Additional charges being sought include felony resisting, obstructing a police officer for one of the men who fled the scene on foot.
Senecas to Target State Politicians Opposing Tribal Tax Immunities
From the Buffalo News via Pechanga:
ALBANY — Seen as cash cows for a cash-starved state government, the Seneca Nation is expanding its latest strategy to block tax collection efforts on its lucrative cigarette operations: The tribe will target, with campaign cash, state politicians who openly oppose the tax-free sales.
The Senecas are launching efforts to help defeat three Senate Republicans whom they call “hostile to the nation’s interests” for pushing collection of what lawmakers say could be as much as $1 billion a year in lost cigarette tax revenues by the Indian retail sales.
The lawmakers, two from upstate and one from Brooklyn, challenged the Seneca representatives at a hearing Tuesday in Manhattan called by the Senate Investigations Committee to examine the Paterson administration’s policy of not collecting the taxes on tobacco products sold by Indian retailers to non-Indians.
In a letter obtained by The Buffalo News to members of the Senecas’ Foreign Relations Committee, J. C. Seneca, the panel’s co-chairman, said the lawmakers — senators Michael Nozzolio, George Winner and Martin Golden — had “expressed tremendous hostility to our treaty rights and to our immunity from state excise taxes being collected in our territories” during Tuesday’s hearing.
NY Indians Stand Up for Treaty Rights re: Tobacco Taxes
From the L.I. Press:
The New York State Senate hearing on the state’s non-collection of taxes on cigarettes sold to non-Native Americans on Indian Reservations brought representatives from Indian nations from all over New York State into a highly charged arena at the Borough of Manhattan Community College on Tuesday.
The hearing was chaired by state Sen. Craig Johnson (D-Port Washington) and had several other senators on the committee in attendance throughout the day. Though the hearing was scheduled to end at 2:30 p.m., the full slate of witnesses and complexity of the testimony being given extended to just after 4:30 p.m., with only two brief breaks in between.
Johnson had to call for order on a couple of occasions during heated exchanges between Sen. Martin Golden (R-Brooklyn) and JC Seneca of the Seneca Nation of Indians that prompted mocking rebukes from Indians in the auditorium. Golden implored the Seneca nation to help New York State given the $4 billion budget deficit the state is facing claiming that New York State will soon be in the same position as California and issuing IOU’s to contractors, vendors and employees. This was met with calls from the crowd, many of whom were yelling out “That’s not our problem” and taunting the senator as he walked out midway through the proceedings.
Charles Carvell on North Dakota Indian Water Rights
Charles Carvell, Director of the Division of Natural Resources & Indian Affairs in the North Dakota Attorney General’s Office, has published “Indian Reserved Water Rights: Impending Conflict or Coming Rapprochement Between the State of North Dakota and North Dakota Indian Tribes, in the North Dakota Law Review.
Here is an excerpt:
This article summarizes the foundation of North Dakota water law, that is, the prior appropriation doctrine. It then reviews the path by which non-Indians took homesteads on North Dakota Indian reservations, which in turn explains, first, the significant modern-day presence of non-Indian residents and non-Indian-owned land on reservations; second, the state’s effort to control some on-reservation water and its use; and third, it explains a fundamental source of tension between tribes and the state. The article recounts tribal assertions of jurisdiction over on-reservation water resources and their adamant rejection of North Dakota water law. It then reviews the 1908 Winters decision and its development during the past few decades, with an emphasis on the standard by which Indian reserved water rights are often measured, that is, practicably irrigable acres. How this standard might apply on North Dakota reservations, and if it should apply, are also addressed. The article concludes with an overview of the relationship between the tribes and the state regarding water.
Cert Petition in Roy v. Minnesota — Is There a Treaty Right to Possess Firearms?
Interesting arguments in this one — Roy v Minnesota Cert Petition
Questions presented (check out no. 5 — a treaty right to possess firearms?):
1. DOES THE STATE OF MINNESOTA LACK SUBJECT-MATTER JURISDICTION OVER THE PRESENT CONTROVERSY BECAUSE POSSESSION OF FIREARMS IS “CIVIL-REGULATORY” IN THIS PARTICULAR CASE?
2. DOES THE PETITIONER HAVE A RIGHT TO POSSESS FIREARMS THAT IS PROTECTED AS A RESERVED RIGHT IN THE 1854 AND 1855 TREATIES WITH THE CHIPPEWA?
3. DID THE MINNESOTA APPELLATE COURT IMPROPERTLY DENY REVIEWOF THIS MATTER BECAUSE THE MINNESOTA COURT OF APPEALS FAILED TO ADDRESS OR REVIEW THE RELEVANT AND APPLICABLE 1854 AND 1855 TRIATIES WITH THE CHIPPEWA?
4. DO PETITIONER’S TREATY RIGHTS BELONG TO HIM AS AN INDIVIDUAL TRIBAL AS WELL AS A TRIBAL AND BAND MEMBER OF THE MINNESOTA CHIPPEWA TRIBE, AS WELL AS COLLECTIVELY TO THE BANDS THAT ARE SIGNATORY TO THE TREATIES OF 1854 AND 1855?
5. DOES THE PETITIONER HAVE A TREATY RIGHT TO POSSESS FIREARMS AS A PRE-EXISTING RIGHT IN LIGHT OF THIS COURT’S 2008 DECISION IN UNITED STATES V. HELLER (2008 WL 2520816)?
Federal Court Dismisses Portion of Challenge to Highway Expansion in Sacred Sites Case
Here is the opinion from the District of Oregon — Slokish v US Federal Highway Administration
An excerpt:
This case involves the U.S. Highway 26 Wildwood-Wemme highway widening project (“Wildwood-Wemme project” or “the project”) near Mt. Hood, Oregon, which was substantially completed in 2008. Plaintiffs consist of individuals and organizations who seek to preserve, protect, and rehabilitate Native American sacred and cultural sites and historical and archaeological resources in the lands surrounding Mount Hood. They allege that defendants United States Federal Highway Administration (“FHWA”), United States Bureau of Land Management (“BLM”), Advisory Council on Historic Preservation (“ACHP”), and Matthew Garrett, the Director of the Oregon Department of Transportation (“ODOT”), violated the National Historic Preservation Act (“NHPA”), 16 USC §§ 470-470x-6, National Environmental Policy Act (“NEPA”), 42 USC §§ 4321-4347, § 4(f) of the Department of Transportation Act (“DTA”), 49 USC § 303, the public trust doctrine, the due process clause, and also committed a breach of fiduciary duty.
Ninth Circuit Decides Federal Common Law Indian Lands Case
Here is the opinion in U.S. v. Milner, which involves non-Indian shore defense structures interfering with the treaty rights of the Lummi Tribe. The U.S. charged the landowners with trespass.
Federal Court Dismisses Lakota Nations Suit re: International Pipeline
Here is the opinion in Sisseton-Wahpeton Oyate v. Dept. of State (D.S.D.) — Sisseton v Dept of State
This is an interesting case involving the President’s inherent authority to authorize an international oil pipeline as a part of his foreign affairs power.
An excerpt:
I want to emphasize that the granting of this motion will not give the defendants a free pass to “do-as-they-please.” They will, of course, still be subjected to the rigorous federal environmental and historical preservation laws throughout the construction and operation phases of the proposed pipeline. In this case, however, the court lacks the authority to strike down the issuance of the permit. Alternatively, if the court did have such power, I find that a good faith effort was made to identify historic properties that may be affected by this project.
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