treaty rights

Saginaw Chippewa Officials Refuse to Participate in Isabella County Celebration Due to Dispute over Treaty Rights

Matthew L.M. Fletcher

From the Mt. Pleasant Morning Sun:

The official flag of Isabella County acknowledges the Saginaw Chippewa Indian Tribe as a significant part of the community.

Yet, the lack of recognition of Isabella Reservation boundaries by the county are “at the heart of the issue” for the Tribal government’s lack of official sponsorship or representation at the upcoming sesquicentennial celebrations.

“It is the heart of the whole issue,” Tribal Chief Fred Cantu Jr. said. “We really are standing to those treaties.

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Obama Administration Moves to Dismiss EPA Mercury Regulation Cert Petition

Matthew L.M. Fletcher

Several Michigan tribes had an interest in this case, and signed on to an amicus brief before the D.C. Circuit (here). There are still industry petitions to deal with, but with the EPA dropping one petition (the EPA’s petition is here), it’s a better litigation climate.

From SCOTUSblog:

Attention has focused on the Solicitor General’s approach to the al-Marri litigation as the first instance in which the Obama Administration’s views would affect the government’s position in the Supreme Court.

But the first change came in an environmental case today.  The Solicitor General, in act likely to be hailed by environmental groups, moved to dismiss the EPA’s position in No. 08-512, EPA v. State of New Jersey.  The petitionD.C. Circuit ruling regarding the EPA’s approach to regulating mercury emissions from power plants. 17 States, the City of Baltimore, 11 tribes, and several public health and environmental organizations opposed the Bush Administration’s position.

The original petition had protested that the EPA had discretion to delist source categories for regulation without making the specific health and environmental determinations required by the Act. But today’s submission indicated that the EPA had determined to follow the regulatory scheme favored by the states and mandated by the D.C. Circuit, which would hold power plants to stricter and less flexible emissions standards and hold the agency to a higher standard for changing source categories.  The Solicitor General’s motion to dismiss stated that the EPA has decided “to develop appropriate standards to regulate power-plant emissions under Section 7412″ and therefore does not seek review of the lower ruling.

***The parallel case that seeks review of the same judgment, Utility Air Regulatory Group v. New Jersey, is still pending, but seems less likely to be granted certiorari because of the government’s compliance with the D.C. Circuit’s ruling. UARG has yet to file a reply brief and the petition has been distributed for the Justice’s conference on February 20. The original filings can be found below.

Docket: 08-352, 08-512
Title: Utility Air Regulatory Group v. New Jersey, et al.; E.P.A. v. State of New Jersey
Issue: Whether the Environmental Protection Agency may eliminate power plants from a list of source categories regulated under the Clean Air Act.

Congrats to Hank Bailey — Nice Elk

Matthew L.M. Fletcher1 Comment

From the Leelanau Enterprise:

Hank Bailey wanted to become the first member of the Grand Traverse Band of Ottawa and Chippewa Indians to kill a bull elk with a muzzle loader.with the elk he shot.HANK BAILEY: with the elk he shot.

He figures Michigan’s elk herd had been mostly devastated before his ancestors started hunting with firearms. After the herd was re-established by state biologists early last century, hunts were strictly regulated and the odds of receiving a tag were slight.

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Christian McMillen Talk

Matthew L.M. Fletcher

From Legal History Blog:

On Friday, January 23, Professor Christian McMillen, Department of History, University of Virginia, will be discussing two papers. First, he will talk about the Historians’ Brief in Carcieri v Kempthorne, an Indian law case from the Supreme Court’s current term which considers whether the Narrangansett Tribe may receive benefits under the Indian Reorganization Act of 1934, if the Tribe was not federally recognized on the date of enactment, and whether the Rhode Island Indian Claims Settlement Act foreclosed the Tribe’s right to exercise sovereignty over land in the state. Next, McMillen will discuss “Proof, Evidence and History in Indigenous Land Claims,” a paper blending history with the law in the early years of Indian claims.

Professor McMillen is Assistant Professor of Native American Studies and the U.S. West in the Corcoran Department of History at U.Va. He received his BA in history from Earlham College, his MA in history from the University of Montana, and his PhD in history from Yale University. McMillen’s book, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (Yale University Press, 2007) won the 2008 William Nelson Cromwell Book Award, the 2008 John Phillip Reid Book Award, and the 2008 Erminie Wheeler-Voegelin Prize, and garnered a nomination for the Bancroft Prize. The book examines a watershed Indian property rights case that continues to impact the outcome of indigenous land claim cases throughout the world.
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Podcast on Indian Freedmen Panel at AALS

Matthew L.M. Fletcher

The podcast is here. Speakers included:

Bell Jeannine – Speaker

Kathryn Fort – Speaker

Kevin Maillard – Speaker

Carla Pratt – Speaker

G.W. Rice – Speaker

Sherri N. Thomas — Speaker

Matthew L.M. Fletcher — moderator

CA7 Decides Wisconsin v. Stockbridge-Munsee Case

Matthew L.M. Fletcher1 Comment

Here is the opinion — ca7-opinion

And here are the materials, including briefs and the lower court opinion.

Dodging a Bullet — Roberts v. Hagener

Matthew L.M. Fletcher

The Supreme Court denied cert on January 12, 2009 in a little-known case called Roberts v. Hagener, out of the Ninth Circuit. The CA9 opinion is here and the Ninth Circuit briefs are here. Here is the cert petition (roberts-v-hegener-cert-petn), and an amicus brief from the Mountain States Legal Foundation supporting the petition (pacific-legal-foundation-amicus-brief).

This was a scary case, and only because the Supreme Court seems to be taking a greater interest in Indian Country the last few years. It was an attempt to convince the Court that the Fourteenth Amendment’s strict scrutiny test should apply to state game laws that recognize American Indian treaty rights. Of course, it is settled law that this is not the case, dating at least back to the 1970s treaty rights cases, and to Morton v. Mancari. But with the Supreme Court, nothing is really settled.

Anyway, dodged a bullet.

Navajo Nation v. US Forest Service Cert Petition

Matthew L.M. Fletcher1 Comment

from SCOTUSblog:

Yesterday, the Stanford clinic filed this cert. petition in Navajo Nation v. U.S. Forest Service, dealing with the circumstances in which governmental action may constitute a “substantial burden” under RFRA.  Jeff Fisher is counsel of record in the case; he was ably assisted by Stanford students Jaime Huling Delaye, Scott Noveck, David Schwartz, and David Muraskin.

Indian Law-Related Panels at AALS

Matthew L.M. Fletcher

Thursday, January 8, 2009, 8:30-10:15

Section on Indian Nations and Indigenous Peoples
Columbia 3, North Tower/Lobby Level, San Diego Marriott Hotel & Marina

New Directions for International Law and Indigenous Peoples

(Program to be published in Idaho Law Review)

The United Nations’ adoption of the “Declaration on the Rights of Indigenous Peoples” in September 2007 marked an historic moment for the world’s 300 million indigenous peoples. The Declaration is the first time that the United Nations has formally recognized indigenous peoples’ rights to self-determination and control over their lands and natural resources. This year’s program will address the following issues related to the Declaration: How can the Declaration be used to improve the lives of indigenous peoples; What national laws and policies violate the Declaration, and what are the most effective remedial measures to address these violations?; and, How will the Declaration influence Congress, the administration and the courts?

Business Meeting at Program Conclusion.

Robert T. Coulter – Speaker
Angelique A. Eaglewoman – Speaker
G. W. Rice – Speaker
Wenona T. Singel – Moderator

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Ottawa Tribe Reply Brief in Ottawa Tribe v. Ohio (CA6)

Matthew L.M. Fletcher

Here is the brief, where the tribe responds to the state’s laches defense for the first time on appeal — reply-brief-of-appellant-ottawa-tribe-of-oklahoma

The other materials in this important case are here. A link to the district court opinion in the Saginaw Chippewa reservation borders case referenced in the reply brief is here.