As we reported last fall here, poultry producers including Tyson Chicken asserted that many of the State of Oklahoma’s efforts to enforce state environmental laws against them must fail because the waterways at issue are owned at least in part by the Cherokee Nation. The Northern District of Oklahoma substantially agreed.
Here is the opinion (thanks to M.M.) — Tyson Opinion and Order
Emily Brand, a recent law grad, published “The Struggle to Exercise a Treaty Right: An Analysis of the Makah Tribe’s Path to Whale,” in Environs, a law journal from UC Davis. An excerpt from the intro:
At the heart of this conflict are the actors who are all trying to do what they think is right. The animal rights activists want to participate in the administrative system to ensure marine mammal protection, the Makah Tribe wants to exercise its treaty right to continue focal cultural and religious traditions, and NOAA wants to fulfill its administrative duty, including its fiduciary duty under the Neah Bay Treaty. Unfortunately, the combination of good intentions created a momentum that is no longer controllable by any one party and left the Makah with an indefinitely suspended treaty right.
The Tribe now faces a complex legal road, juggling the administrative action, the criminal case, and an imminent civil suit. The Tribe must act carefully in managing its actions and arguments so as not to foreclose any way to exercise its treaty right. The Makah have three main avenues of action: 1) follow the administrative agency MMPA waiver process defined by Anderson v. Evans; 2) re-assert issues from Anderson in criminal court; or 3) re-visit Anderson’s challenges after NOAA’s waiver determination in a civil suit. Each path involves a different strategy and risk. However, all paths lead to the Ninth Circuit and ultimately the Supreme Court, the only place where this issue could finally be put the rest.
Law.com has published an article on several Indian law cases that are active in New York state courts, including the Cayuga cigarette tax case and another involving the application of state civil regulatory law to a tort claim arising out of actions that occurred entirely within the Akwesasne Mohawk reservation.
From the article:
Hart’s attorney, John A. Piasecki of Malone, N.Y., said he argued that application of the Labor Law is an administrative action by the state and does not have force in the St. Regis Mohawk territory. Piasecki said he would like to someday argue the point before the U.S. Supreme Court.
“It is larger than mere tribal sovereignty,” Piasecki said Tuesday in an interview. “We have argued that unless a law is specifically adopted on an Indian reservation or specifically imposed on an Indian reservation by a federal act of Congress … New York statutes simply don’t apply within the boundary of the St. Regis Mohawk Indian Reservation.”
The article also notes that the Plaintiff in the litigation surrounding the alleged tort occurring on the Akwesasne reservation made a conscious effort to avoid incorporating the tribe in the lawsuit. Presumably, the Tribe’s attorney would know better than to try to bring this type of case all the way to the U.S. Supreme Court (as presently constituted).
It seems to me that it is these types of cases that present the greatest threat to sovereign authority, because the advocacy of tribal interests is in the hands of a self-interested litigant (perhaps with an attorney not well-versed in Indian law). These types of cases provide the courts with opportunities to limit tribal jurisdiction without the tribe being the primary party in interest a la Hicks, Strate, Means, and Lara (although the latter two did not end too badly for tribal interests).
You can read the entire article here
Here is the opinion in United States v. Washington, though as the court points out, neither the U.S. nor the State of Washington were parties to this one. An excerpt:
The district court granted the Port Gamble and Jamestown Tribes’ motion to dismiss. The district court held that “[t]he dispute here does not arise from the Hood Canal Agreement, and it cannot be settled by looking to its terms. Instead, the Skokomish are asking the court to bypass the Agreement and create an allocation for the parties because they cannot agree among themselves as required by the Agreement.” The court noted that nothing in the agreement “empowers the court to allocate harvest shares in the absence of the agreement of the parties.” The provision in Judge Boldt’s decree retaining jurisdiction for “[d]isputes concerning the subject matter of this case which the parties have been unable to resolve among themselves,” did not apply because “[t]he subject matter of this case is treaty fishing rights, not the equitable rights of any one tribe to harvest a certain allocation of fish…. Nowhere in these decisions is there a finding that inter-tribal allocation (as opposed to allocation between treaty- and non-treaty fishermen) is the subject matter of this case.” As for the catch-all language in Judge Boldt’s order, “[s]uch other matters as the court may deem appropriate,” “[t]his is a discretionary section, and … the Court does not deem it appropriate to take jurisdiction of this matter.” Because the request for allocation did not fall within the purposes of enforcing the treaty or the Hood Canal Agreement, and neither provided for court allocation if the tribes could not agree among themselves, the court exercised its discretion to refrain from granting equitable relief. Though we do not reach, or rule upon, all the conclusions of the district court and the challenges to them, we conclude that dismissal was proper, and affirm.
Reported yesterday in Indianz, here is the order — Frank’s Landing Summary Judgment Order
And the summary judgment briefs (preliminary injunction briefs were posted here):
Frank’s Landing Motion for Summary Judgment
Gregoire Motion for Summary Judgment
Lopeman Motion for Summary Judgment
Unfortunately, Nisqually’s motion for partial summary judgment is sealed.
Here is the opinion in the long-running case Reber v. Steele. An excerpt:
Petitioner Colton Reber, a descendant of the Uintah Band Indians, was convicted in Utah state juvenile court of felony wanton destruction of wildlife, in violation of Utah Code § 23-20-4. Having exhausted his remedies through the state courts, Mr. Reber filed the present 28 U.S.C. § 2254 action in the United States District Court for the District of Utah. Mr. Reber’s § 2254 petition contends that because he is an Indian, and because the offense occurred on Indian land, the Indian tribe-not the State of Utah-is the victim of the offense. Thus, neither the Eighth District Juvenile Court, nor the State of Utah, possessed jurisdiction over the offense. The federal district court dismissed Mr. Reber’s habeas petition because “it plainly appear [ed] from the petition and any attached exhibits that the petitioner [wa]s not entitled to relief.” Aplt’s App. at 60.
We granted Mr. Reber a certificate of appealability on August 18, 2008, concluding that he had made the requisite “substantial showing of the denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). Upon further review, however, we find that the premature filing of Mr. Reber’s § 2254petition deprived the district court of jurisdiction, and thus precludes our review. Accordingly, we vacate the district court’s ruling on the merits of the petition, and remand to the district court with instructions to dismiss the petition without prejudice.
Here is the opinion in Pakootas v. Teck Camino (E.D. Wash.) in which the court dismisses counterclaims by the polluter (Teck Camino) against one of the plaintiffs (the Colville Confederated Tribes) on grounds that tribes cannot be liable under CERCLA — DCT Order Dismissing Teck Camino Counterclaims
Here are the briefs:
Colville Motion to Dismiss Counterclaims
Here is the D.C. Circuit’s opinion, with one partial dissent (by Judge Tatel), in Oglala Sioux Tribe v. United States Army Corps of Engineers. Here are the briefs:
From NCAI: Here is a memorandum from the Department of Homeland Security regarding the upcoming Western Hemisphere Travel Initiative (WHTI) implementation on June 1, 2009 and it’s effect on North American Indians.
To summarize the memorandum, U.S. Customs and Border Protection will not require those persons who fall under the Jay Treaty exceptions to present a WHTI compliant document on or after June 1, 2009 until such time as an alternate document is approved and issued.
From IPR:
The Saginaw-Chippewa Indian Tribe won a victory last month in an ongoing lawsuit over the boundaries of Indian land in Isabella County. The suit has yet to go to trial, but it’s been in court for years.
Should the tribe win, it would exert tribal sovereignty throughout five townships, and half the city of Mt. Pleasant.
Just what that would mean is still not clear to Mt. Pleasant’s Mayor, Jim Holton. “Well the city has several concerns, obviously, with this. And it’s still a lot of theory. It’s still a lot of ’What if’s.’”
Some of Holton’s big “What if’s” include questions of zoning, law enforcement, and taxation. “Who to tax, how can we tax. Can we collect on tax? It’s obviously vital to our survival as a city, with infrastructure, roads and all those things.”
Saginaw-Chippewa leaders do not want to comment on ongoing litigation. But Matthew Fletcher says – as he understands it – those last two are also some of the tribe’s biggest concerns: taxation and law enforcement. Fletcher runs the Indigenous Law Center at Michigan State University.
Turtle Talk 
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