treaty rights

Idaho Court of Appeals Rejects Treaty Right to Travel as Jurisdictional Defense to Criminal Conviction

Matthew L.M. Fletcher

The opinion in State of Idaho v. Oatman is here. An excerpt:

The 1855 Nez Perce Treaty grants the members of that tribe the same right to travel that is enjoyed by all citizens of the United States. The right to travel enjoyed by citizens of the United States may be restricted as a result of criminal incarceration or probation. See, e.g., Jones v. Helms, 452 U.S. 412, 419, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981)(holding that a state many infringe upon the fundamental right to travel when “a person has been convicted of a crime within a State. He may be detained within that State, and returned to it if he is found in another State.”); State v. Pinson, 104 Idaho 227, 231, 657 P.2d 1095, 1099 (Ct. App. 1983) (holding that, “as a condition of granting freedom to a probationer, society has the right to impose . . . restrictions on important liberties such as the right to travel.”). Oatman argues, in effect, that the Treaty grants members of the Nez Perce Tribe an absolute immunity from any criminal prosecution which could result in a term of confinement or probation. Such immunity would not be a rightin common with citizens of the United States.

We are also unconvinced that Oatman’s interpretation was the interpretation contemplated by the parties to the Treaty, for it subsequently provides that the tribe “agrees not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.” Treaty with the Nez Perces, art. VIII, June 11, 1855, 12 Stat. 957. If the parties intended that members of the tribe not be subjected to criminal proceedings which may result in incarceration or probation, such language would be unnecessary. We conclude that Oatman’s arguments are meritless. Accordingly, Oatman’s judgment of conviction for misdemeanor assault is affirmed.

Ninth Circuit to Hear Samish Tribe’s Claim to Reenter U.S. v. Washington En Banc

Matthew L.M. Fletcher1 Comment

In an unusual procedure, after oral argument before a three-judge panel including Judge Canby, the Ninth Circuit decided to hear the United States v. Washington subproceeding involving the Samish Indian Tribe’s treaty claims en banc.

Samish Indian Tribe Opening Brief

Appellee Treaty Tribes Brief

Samish Reply Brief

USA Supplemental Brief Favoring En Banc Review

En Banc Oral Argument Order

Sixth Circuit Affirms Dismissal of Oklahoma Ottawa Treaty Claims — Declines to Apply Laches

Matthew L.M. Fletcher

Here is the Sixth Circuit’s opinion in Ottawa Tribe of Oklahoma v. Logan — Ottawa Tribe of Oklahoma v Ohio DNR.

The lower court had made its primary holding that the Ottawa Tribe’s treaty claims were barred by laches, as in Sherrill and Cayuga. But consistent with an amicus brief filed by NCAI and Michigan tribes, the Court declined to apply laches, instead relying upon an interpretation of the relevant treaties.

Lower court materials here and here and here and here.

Ninth Circuit Affirms Puget Sound Chinook Plan that Does Not Allow for “Recovery” of Fish Population

Matthew L.M. Fletcher

Here is the Ninth Circuit’s unpublished opinion in Salmon Spawning & Recovery Alliance v. NOAA, and a partial dissent. Here is the tribal amicus brief (SSRA v NOAA — Tribal Amicus Brief). Judge Berzon writes in dissent:

I agree with the petitioners that NMFS acted arbitrarily and capriciously when it approved the planned exploitation rates for the Georgia Strait Region. In approving the Georgia Strait Region exploitation rate, the agency ignored the results of the methodology it otherwise vigorously defends and approved a harvesting rate inconsistent with its own analysis. Moreover, the reasons the agency provided for departing from its chosen analytic framework are speculative and not supported by evidence in the record or by a quantitative analysis. For these reasons, I would hold the agency’s conclusion with respect to the Georgia Strait region arbitrary and capricious.

Moreover,

Finally, the agency’s consideration of federal trust responsibilities to treaty tribes does not support, as the majority maintains, the agency’s decision to depart from its chosen methodology and thereby endanger the Nooksack River Salmon population. To the contrary, the agency was required to consider its trust responsibilities when developing the methodology in the first instance. If NMFS’s chosen methodology had failed to account for its trust responsibilities, the methodology itself would have been fatally flawed.

Complaint in St. Regis Mohawk v. Paterson

Matthew L.M. Fletcher

Here is the complaint in the matter reported here — article via Indianz.

St Regis Mohawk Tribe v Paterson Complaint

The file includes a copy of the 1796 Treaty with the Seven Nations of Canada that is the subject of the complaint.

Federal Court Remands State Prosecution of Shinnecock Man to State Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in People v. Smith (E.D. N.Y.), a criminal prosecution of a Shinnecock man for taking fish illegally (People v Smith DCT Order). The defendant sought to remove the prosecution to federal court, asserting treaty and other rights.

Smith Notice of Removal

Motion for Remand to State Court

Letter in Opposition to Motion

Ninth Circuit Rules in Favor of Suquamish Tribe over Puget Sound Fishing Rights

Matthew L.M. Fletcher3 Comments

Here is the Ninth Circuit’s (crabby) opinion in Upper Skagit Tribe v. Washington.

The briefs:

Suquamish Opening Brief

Upper Skagit Tribe Brief

Tulalip Tribes Response Brief

Swinomish Tribe Brief

Port Gamble and Jamestown S’Klallam Tribes Brief

Suquamish Tribe Reply Brief

The key holding:

We conclude that it is at least as likely as not that Judge Boldt meant what he said; the Suquamish treaty territory “include[s] the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River.” This broad, unlimited fishery is what Dr. Lane described in her report and testimony. Dr. Lane stated that marine fisheries “are far more difficult to delimit than fresh waters.” She repeatedly underlined that her report did not, and could not, list all of the usual and accustomed fishing locations of the Suquamish. She noted that the Suquamish had more limited resources in their home area than most tribes, and thus had to travel more extensively to fish.

Dr. Lane said that she had no documentary evidence that the Suquamish fished in the San Juan Islands, but nonetheless found it likely that they did so. Judge Boldt agreed, deciding in the absence of any specific evidence that the Haro and Rosario Straits were part of the Suquamish traditional fishing grounds. This demonstrates a lack of specific evidence would not have precluded Judge Boldt from including Skagit Bay and Saratoga Passage in Suquamish’s territory.

And why we think the court is being crabby:

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Tenth Circuit Holds Indian Felons Lose Treaty Right to Carry Firearms

Matthew L.M. Fletcher

Here is the opinion in United States v. Fox. Fox is Navajo.

An excerpt:

Dionysius Fox, a member of the Navajo Nation, was arrested on the Navajo Reservation on an unrelated charge and found in possession of a shotgun and a rifle. Mr. Fox is a convicted felon, subject to the provisions of 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by those previously adjudged guilty of felonies. Although he acknowledges that he is prohibited from possessing firearms beyond Navajo Reservation land, Mr. Fox asserts that he is entitled to possess guns for the limited purpose of hunting on the Navajo Reservation, pursuant to an 1868 Treaty between the United States and the Navajo Nation. We conclude, however, that Mr. Fox has relinquished any treaty right to use firearms for hunting purposes, and therefore affirm the judgment of the district court.

This case is interesting in part because another Tenth Circuit judge (see concurring opinion in U.S. v. McCane) raised a question about whether the Supreme Court’s recent Second Amendment decision D.C. v. Heller actually may make the federal statute in question in Fox unconstitutional.

Here are the briefs:

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New Book on Great Lakes Indians’ Resistance in the Early Reservation Years

Matthew L.M. Fletcher

Edmund Danzinger has published “Great Lakes Indian Accommodation and Resistance during the Early Reservation Years, 1850-1900” with University of Michigan Press. Here is the website.

And the description:

During the four decades following the War of 1812, Great Lakes Indians were forced to surrender most of their ancestral homelands and begin refashioning their lives on reservations. The challenges Indians faced during this period could not have been greater. By century’s end, settlers, frontier developers, and federal bureaucrats possessed not only economic and political power but also the bulk of the region’s resources. It is little wonder that policymakers in Washington and Ottawa alike anticipated the disappearance of distinctive Indian communities within a single generation. However, these predictions have proved false as Great Lakes Indian communities, though assaulted on both sides of the international border to this day, have survived. Danziger’s lively and insightful book documents the story of these Great Lakes Indians—a study not of victimization but of how Aboriginal communities and their leaders have determined their own destinies and preserved core values, lands, and identities against all odds and despite ongoing marginalization.

Utilizing eyewitness accounts from the 1800s and an innovative, cross-national approach, Danziger explores not only how Native Americans adapted to their new circumstances—including attempts at horse and plow agriculture, the impact of reservation allotment, and the response to Christian evangelists—but also the ways in which the astute and resourceful Great Lakes chiefs, councils, and clan mothers fought to protect their homeland and preserve the identity of their people. Through their efforts, dreams of economic self-sufficiency and self-determination as well as the historic right to unimpeded border crossings—from one end of the Great Lakes basin to the other—were kept alive.

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Larry Leventhal on Treaty Rights

Matthew L.M. Fletcher

From News from Indian Country:

Back in 1974, Attorney Larry Levanthal, teaching at St. Scholastica College in Duluth, instructed two Lac Courte Oreilles tribal members Fred and Mike Tribble about unresolved treaty rights claims in the ceded territories of Michigan, Wisconsin, and Minnesota.

It was illegal for tribal members to spear fish or hunt deer off the reservation except within narrow State statutes. Tribal members were being cited into state courts for trying to feed their families.

After the class, the Tribble brothers dragged their spear fishing shack off the reservation onto State waters, started fishing, and were arrested by Wisconsin game wardens.

The Tribbles’ showed the wardens the 1837 Treaty between the Chippewa and the United States which guaranteed the tribes’  right to hunt, fish, and gather in the ceded territory. But the wardens were unmoved.  A Sawyer County judge upheld the arrest.

On appeal Federal judge Doyle sided with the State. But the Seventh Circuit Court of Appeals reversed in 1984  and eventually treaty rights were upheld by the US Supreme Court in 1999 in  Mille Lacs v. Minnesota.

Larry Levanthal discusses the importance of treaty rights for tribal sovereignty and how treaty rights might be used to challenge coal fired, electricity plants and other polluting industries.

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