treaty rights

Cherokee Freedmen Cases Discussed at FBA Annual Meeting

Matthew L.M. Fletcher4 Comments

From ICT:

OKLAHOMA CITY – Cherokee Chief Chad Smith wonders why the push to preserve tribal sovereignty by removing the descendants of freed slaves from his tribe was regarded as immoral at a Federal Bar Association meeting Sept. 10.

“We certainly want to be included in the fabric of this United States, but we always maintained that we are domestic dependent nations. The idea is why something is wrong when a tribe wants to be a tribe of Indians.”

Smith made the comments to around 150 onlookers at a discussion on the issue that included Harvard University law scholar Charles Ogletree, and Oklahoma Western Federal District Judge Vicki Miles LaGrange as moderator.

Ogletree and Smith each made 10 minute presentations summarizing viewpoints on the controversial issue. Panelists then fielded questions that went 20 minutes beyond the session’s scheduled time.

The discussion centered on the Cherokee Nation’s push to remove freedmen descendants from its rolls in March 2007. The freedmen ascertain that removal violates an 1866 treaty and has taken their case to federal court. No decision has been made on the federal level.

Meanwhile, Ogletree called the freedmen issue a “moral dilemma” and not one entirely of tribal sovereignty, while Smith outlined a history of case law precedent preserving the tribal right to define who qualifies for citizenship.

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News Coverage of New Arizona Snowbowl Suits

Matthew L.M. Fletcher

From How Appealing:

“Lawsuit challenges Snowbowl snowmaking on environmental grounds”: This articleappears today in The Arizona Daily Sun.

And The Associated Press has a report headlined “Lawsuit aims to stop expansion at Snowbowl; Critics: Forest Service didn’t consider health risks from man-made snow.”

LATs Article on Eagle Cases

Matthew L.M. Fletcher

From the LATs:

On Wyoming’s Wind River Indian Reservation, Winslow Friday is preparing to surrender in his long fight with the federal government.

The seeds of the conflict were planted four years ago when Friday shot a bald eagle out of a tree. His cousin needed a tail fan for an upcoming Sun Dance, the Northern Arapaho tribe’s most important religious ceremony, and Friday wanted to help.

So when Friday spotted the bird, he seized his chance.

Charged with killing a bald eagle in violation of federal law, Friday had argued that the law hinders the practice of his religion — a battle closely watched on the reservation.

“Some agreed with what he did, some didn’t,” said tribal spokesman Donovan Antelope. “But they all agree with the reason he did it — for the Sun Dance. We know he wasn’t doing it just to kill an eagle.”

Now, though, Friday is giving up. Having exhausted his legal options, he’s hoping for a plea agreement that will avoid a trial. “The attorneys say that [a trial] would be a losing battle,” said Friday, 25, a former oil field worker studying to be a civil engineer.

Friday’s case represents the latest and most high-profile fight in a string of battles over how to balance conservation with religious liberty.

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New Suit Filed in Arizona Snowbowl Dispute

Matthew L.M. Fletcher2 Comments

Here is the complaint in Save the Peaks Coalition v. USFS (D. Ariz.) — Save the Peaks Coalition Complaint

And the motion for a TRO — Motion_for_TRO

From the press_release:

According to Arizona Department of Environmental Quality regulations, treated sewer water can be
graded A+ even when it contains fecal matter in three out of every ten samples. This same effluent has
been found to contain pharmaceuticals, hormones, endocrine disruptors, industrial pollutants, and
narcotics. It may also contain bio-accumulating antibiotics, such as triclosan and triclocarban, and
pathogens, such as e. coli, hepatitis, and norovirus. The human and environmental health risks, which
have been largely ignored by the media, have their roots as far back as 2001 in the scoping comments
made to the Forest Service about Arizona Snowbowl’s proposed expansion and upgrade. Plaintiffs
involved in this lawsuit have consistently insisted that the Forest Service take a hard look at what might
happen to the people, land, plants, and wildlife when they come in contact with or eat snow made from
treated sewage effluent.

According to Arizona Department of Environmental Quality regulations, treated sewer water can be graded A+ even when it contains fecal matter in three out of every ten samples. This same effluent has been found to contain pharmaceuticals, hormones, endocrine disruptors, industrial pollutants, and narcotics. It may also contain bio-accumulating antibiotics, such as triclosan and triclocarban, and pathogens, such as e. coli, hepatitis, and norovirus. The human and environmental health risks, which have been largely ignored by the media, have their roots as far back as 2001 in the scoping comments made to the Forest Service about Arizona Snowbowl’s proposed expansion and upgrade. Plaintiffs involved in this lawsuit have consistently insisted that the Forest Service take a hard look at what might happen to the people, land, plants, and wildlife when they come in contact with or eat snow made from treated sewage effluent.

Thanks to Fred for these materials.

News Coverage of Michigan v. EPA Case in Seventh Circuit

Matthew L.M. Fletcher

From the Chicago Tribune (via Traverse City):

TRAVERSE CITY, Mich. – A federal appeals court has ruled in favor of a Wisconsin-based Indian tribe in a 16-year dispute with the state of Michigan over air quality standards.

Michigan challenged the U.S. Environmental Protection Agency‘s decision in 2008 to grant the Forest County Potawatomi Community’s reservation the highest level of protection allowed under the federal Clean Air Act. EPA’s action followed fruitless negotiations between the tribe and the state dating from the early 1990s.

The 7th U.S. Circuit Court of Appeals dismissed the case Wednesday, saying the state lacked standing to contest the federal agency’s decision.

“This is a great victory,” said Philip Shopodock, chairman of the Potawatomi tribe. “Pure air and pure water are essential to our culture and our beliefs. We must protect our home for future generations.”

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Materials from GLIFWC’s Treaty Symposium — Minwaajimo (Telling a Good Story)

Matthew L.M. Fletcher

Great Lakes Indian Fish and Wildlife Commission hosted a major treaty rights symposium on July 28-30, 2009, featuring many of the stars of Indian law — Kathryn Tierney, Marc Slonim, Henry Buffalo, Jr., Bruce Greene, and others. The symposium website is here.

Webcasts of many of the speeches are here at IndianCountryTV.com.

Written materials are linked here:

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Ohio Appellate Court Holds that Ohio Holds Title in Trust to Submerged Lands in Lake Erie

Matthew L.M. Fletcher1 Comment

The Doctrine of Discovery strikes again! Here is the opinion of the Ohio Court of Appeals (11th Dist.) in State ex rel. Merrill v. State. Here is one of the key questions presented:

The state of Ohio, through the Ohio Department of Natural Resources (“ODNR”), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group, 1 (“OLG”), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR’s authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed.

The court holds that Ohio has trust title to the submerged lands, but that the water mark identified by the Army Corps of Engineers must be re-established at trial.

The history of Ohio lands from the moment of “discovery” in 1497 begins in paragraph 26. It may be worth discussing for anyone teaching Johnson v. M’Intosh this week (like me!).

NYT’s Article on New York State’s Tobacco Fight with Indian Tribes

Matthew L.M. Fletcher1 Comment

From the NYTs:

A federal judge ruled on Tuesday that a group of tobacco vendors on an Indian reservation on Long Island cannot sell tax-free cigarettes to the general public until a court rules in a closely watched legal battle between the reservation and New York City.

A temporary injunction issued by Judge Carol B. Amon of Federal District Court in Brooklyn gave the city at least a temporary victory in its efforts to collect hundreds of millions of dollars in tax revenue.

“The city will go after every dollar that is owed to city taxpayers,” Mayor Michael R. Bloomberg said in a statement on Wednesday. Under Judge Amon’s ruling, a group of cigarette businesses on the Poospatuck Indian Reservation near Mastic can sell tax-free cigarettes only to tribe members, for personal use, until a verdict is reached in a federal lawsuit the city filed in September.

The judge stayed the ruling for 30 days to give the vendors time to appeal.

“The judge’s ruling is completely wrong,” said Harry Wallace, a lawyer and the chief of the Unkechaug Indian Nation, which is on the Poospatuck reservation, adding that it ignored the Indian nation’s sovereignty.

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LTBB to Present Data on Lake O’Neal

Matthew L.M. Fletcher

From the Petoskey News-Review (miigwetch to A.K.):

BLISS TOWNSHIP — Spurred by last year’s public outcry not to drain Lake O’Neal, the Little Traverse Bay Bands of Odawa Indians set out to collect fishery, wildlife and water quality data.

Now that the compilation is complete, the tribe will present its findings to the public beginning at 7 p.m. on Thursday at the Bliss Township Hall.

Doug Craven, the natural resources director for the tribe, said Lake O’Neal is unique to the tribe and the data was collected to help inform better decisions for it in the future.

“It’s one of the few lakes that’s completely within the tribal reservation area,” he said. “We recognized the gap regarding fisheries data and there was substantial public interest. We conducted the data to see if it matched the public’s perception and it appears that it does.”

Bill Parsons, an inland fisheries biologist with the tribe, said the data helps provide a baseline inventory on the lake cataloguing both the types of fish and birds that populate it. Parsons said he found smallmouth bass, largemouth bass, blue gill, yellow perch, rock bass, pumpkinseed and northern pike making up the fishing, and a large population of water fowl, including osprey and loons, as well as bald eagles nesting around the lake.

“We’ve determined that it’s an important fishery for the wildlife,” he said.

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Student Note on the Arizona Snowbowl Case

Matthew L.M. Fletcher

Here is “Making Snow in the Desert: Defining a Substantial Burden under RFRA,” published in the Ecology Law Quarterly. An excerpt:

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to
reconcile the statutory provisions of RFRA with the Supreme Court’s
ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded,
RFRA was not intended to remedy the disparate treatment of sacred site claims
in free exercise doctrine and thus, it does not provide any more protection for
these claims than the Free Exercise Clause. Both of the Ninth Circuit’s
decisions, however, may ultimately lead to a more equitable framework for
analyzing free exercise challenges.

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to reconcile the statutory provisions of RFRA with the Supreme Court’s ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded, RFRA was not intended to remedy the disparate treatment of sacred site claims in free exercise doctrine and thus, it does not provide any more protection for these claims than the Free Exercise Clause. Both of the Ninth Circuit’s decisions, however, may ultimately lead to a more equitable framework for analyzing free exercise challenges.