treaty rights

MSU Working Paper 2009-03 — Carcieri’s Impact on Michigan Tribes

Matthew L.M. Fletcher1 Comment

Novaline Wilson (MSU Law ’08) has written a nice paper on the impact of Carcieri v. Salazar on Michigan tribes, many of whom (8 out of 12) were not federally recognized in 1934. It is here. Note that she wrote this before Carcieri was decided. An excerpt:

The Supreme Court must consider unique historical circumstances of Michigan Indian tribes before effectively barring these administratively aggrieved tribes from the federal land-to-trust process. Michigan Indian tribes have a distinct political history as treaty tribes that were illegally administratively terminated in a “situation [that] is not simply an injustice of major proportions, it is a travesty of logic that boggles the rational mind.” Carcieri was correctly decided at the administrative appeals level, by the District Court, and by the First Circuit Court of Appeals. This case is not only without merit, it directly contravenes the BIA’s authority to fulfill their federally mandated trust obligations to tribes. The BIA has to administer the same general federal fiduciary obligations to all tribes, regardless of the year the federal government finally got around to “formally recognizing” tribes. As demonstrated through Michigan Indian tribal history, an outright bar on land-to-trust for those tribes not recognized in 1934 would not only eviscerate fundamental Indian law and administrative law principles, it would demonstrate deliberate ignorance of hundreds of years of American history between Indian tribes and the federal government.

Judge Barbara Crabb Takes Senior Status

Matthew L.M. Fletcher1 Comment

From Chicago Tribune:

MADISON, Wis. – U.S. District Judge Barbara Crabb, whose rulings helped clear the way for the resumption of Chippewa off-reservation treaty rights in northern Wisconsin, announced Thursday she is retiring.

Crabb, appointed in 1979 by President Jimmy Carter, said she will retire to senior status, allowing her to continue to hear some cases and clearing the way for President Barack Obama to appoint a replacement.

Crabb, 69, said the move provides a way to tackle the court’s increasing caseload without asking Congress to create a third judgeship.

“Given the nation’s current economic straits and the immediate needs of this court, I have decided after considerable reflection that this is the best course for all concerned,” Crabb said in a statement.

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Op-Ed Supporting Michigan DNR

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

The State Department of Natural Resources is used to taking its lumps. It gets its share and more in the media, in deer hunting and fishing publications, from bloggers and even on this page in the form of editorials and letters to the editor.

It comes with the territory. The DNR, after all, is a taxpayer-supported agency and deals with some pretty volatile issues and individuals.

The agency oversees fishing, hunting, trapping and outdoor activities of all sorts, all of which have passionate adherents not shy about their opinions.

Too often, however, the agency and individual DNR officers don’t get the credit they deserve. Many spend untold hours in the heat and cold watching for poachers or monitoring fishermen. They’ve been shot at, punched and worse in the line of duty. They don’t often hear someone say “thanks.”

But without their efforts there’d be a lot fewer deer and fish for those who pay for the privilege of hunting and fishing.

Recently the DNR, with help from officers from the Sault Ste. Marie Tribe of Chippewa Indians, said they would charge six men with running an illegal commercial fishing operation on Lake Michigan’s Little Bay de Noc. The poachers may have claimed more than 20,000 pounds of walleye in just the last two months and thousands more over several previous winters.

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Cheyenne-Araphoe v. United States in D.C. Circuit

Matthew L.M. Fletcher

The D.C. Circuit ruled against the Cheyenne-Arapahoe Tribes of Oklahoma in this case (opinion here) (H/T Indianz). Here is an excerpt:

This appeal involves disputed rights to land originally designated as part of a reservation for the Cheyenne Arapaho Tribes of Oklahoma and later set apart by executive order as a U.S. military installation. The district court dismissed the Tribes’ action to quiet title to the land for lack of subject matter jurisdiction. The Tribes argue that the court erred in dismissing the case prematurely without allowing for jurisdictional discovery. Because the Tribes fail to specify what facts discovery could produce that would alter the jurisdictional analysis, we hold that the district court did not abuse its discretion in denying the Tribes’ discovery request.

Blumm and Steadman on the Judge Martinez Treaty Fishing Decision

Matthew L.M. Fletcher

Michael Blumm and Jane Steadman have posted “Indian Treaty Fishing Rights and Habitat Protection: The Martinez Decision Supplies a Resounding Judicial Reaffirmation” on SSRN. Here is the abstract:

In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a “servitude upon every piece of land.” We have described this servitude as a “piscary profit,” a familiar property right at common law that must be exercised free from unreasonable interference. While the universally shared assumption at the time the treaties were signed was that the salmon resource was inexhaustible, in fact the salmon have been in precipitous decline since the late-1800s. This scarcity bred conflicts, which have forced the tribes to enforce their treaty fishing right in the courts for over a century.

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Comments on the Wolfchild Case

Matthew L.M. Fletcher12 Comments

There’s no reason to take a position on the Federal Circuit’s decision reversing the trial court in the Wolfchild case, but there are several big-picture issues that may have affected the Circuit’s decision or otherwise demonstrate that something is horribly wrong in federal Indian law.

First, the lawyer’s history propounded by the trial court, the Federal Circuit, and necessarily the parties is troubling. Let us not forget, as it would be very easy to do from the Federal Circuit’s opinion, that this whole thing started with the violent and illegal acts of the United States government. It was the United States’ actions that precipitated the so-called “rebellion” of the Dakota people near Fort Snelling. And it was the local non-Indian populace, the Army, and President Lincoln that characterized the “rebellion” as a series of “massacres.” The people called the “Loyal Mdewakanton” and the people, predominantly plaintiffs, that were not so “loyal” were all part of this community utterly ravaged by the United States. The end of this war in 1862 resulted in the largest mass execution of anyone in American history — about 40 men and boys, all Dakota. And the majority of Dakota people in the area were rounded up and sent on a death march that included at least three or four states, killing many, many people.

None of that is relevant to this case, apparently. But it really should be.

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Loyal Mdewakanton Suit in the Federal Circuit

Matthew L.M. Fletcher

From How Appealing:

The U.S. Court of Appeals for the Federal Circuit examines the federal government’s obligations to the loyal Mdewakanton band of the Sioux tribe: You can access today’s lengthy ruling at this link.

The case reaches the Federal Circuit from the U.S. Court of Federal Claims, whose rulings on the matter can be accessed here and here.

In late October 2004, Minnesota Public Radio had a report headlined “‘Loyal Mdewakantons’ win land dispute” about the first of those two rulings.

Building Project on St. Mary’s River Rejected

Matthew L.M. Fletcher

Here is the opinion in Schmidt v. Army Corps, from the Western District of Michigan, in which the court upheld a decision by the Army Corps not to allow a building project on the St. Mary’s River, near what the Chippewa Ottawa Resource Authority says is a fish spawning ground.

schmidt-memo-opinion

Student Note on U.S. v. Washington Culverts Opinion

Matthew L.M. Fletcher

William Fisher has published “The Culverts Opinion and the Need for a Broader Property-Based Construct” in the Journal of Environmental Law and Litigation (Oregon). Here is a copy of the Culverts Opinion. Here is an excerpt:

The question becomes: Do treaties involve an affirmative duty for states to protect fish habitat and ensure quality fish runs? As discussed herein, a federal court has answered this question narrowly, yet affirmatively, failing to employ a property-based construct that encompasses all the rights reserved under the tribal treaties. Therefore, although the courts have recognized the existence of a duty, they have not yet recognized its entire scope.

Many theories have been advanced for how courts should interpret a state’s duties to protect fish habitat. Generally, treaty-invoked duties are analyzed under a contract-law paradigm. This is not erroneous, as treaties are said to be “contract[s] between sovereign nations.” However, when courts look at treaties only as contracts, they are missing one major aspect of tribal treaties: property rights. Not only are tribal treaties contracts between sovereigns, they are also deeds of property. Therefore, the bodies of law that are invoked by the formation of a tribal treaty include both contract law and property law. However, despite the promising answers property law provides for treaty interpretation, many judges have shown discomfort at the idea of applying property-based constructs to interpret states’ and tribes’ duties and rights under such treaties. Some feel that the formalistic rules of property law do not contain enough elasticity to be molded within the Indian law context. For example, when the Ninth Circuit used a property-law analogy to enforce tribes’ rights to take fish from the Columbia River, Judge Kennedy concurred in the holding but objected to the court’s use of this analogy, arguing that it was not an exact fit. What Judge Kennedy failed to recognize was that courts can and should apply the basic models of a property-based construct to analyze treaty rights, even where every jot and tittle may not line up. Refusing to do so is to turn a blind eye to the fact that treaties are deeds of property, and as such, invoke the rules of property law.

U.S. v. Morrison — Federal Convictions for Contraband Cigarette Sales

Matthew L.M. Fletcher1 Comment

The US Attorney for the Eastern District of New York indicted “reservation retailers” for violations of the Contraband Cigarettes Trafficking Act and of RICO. The defendants moved to dismiss the RICO charge. Here is the opinion denying the motion — us-v-morrison-dct-order