We previously reported the Minnesota Supreme Court decision, State v. Losh, which upheld state jurisdiction over traffic offenses in Minnesota, a PL 280 state. Here are the briefs:
treaty rights
Fletcher on “Laughing Whitefish” and Tribal Customary Law
Matthew Fletcher posted “Laughing Whitefish: A Tale of Justice and Anishinaabe Custom” on SSRN. Here is the abstract:
Laughing Whitefish, a novel by Robert Traver, the pen name of former Michigan Supreme Court Justice John Voelker, is the fictionalized story of a case that reached the Michigan Supreme Court three times, culminating in Kobogum v. Jackson Iron Co., 43 N.W. 602 (Mich. 1889). The petitioner, Charlotte Kobogum, an Ojibwe Indian from the Upper Peninsula of Michigan, brought suit to recover under a note issued to her father, Marji Gesick, by the mining company in the 1840s. The company had promised a share in the company because he had led them to one of the largest iron ore deposits in the country, the famed Jackson Mine. Despite the company’s defense that Mr. Gesick was a polygamist and therefore Ms. Kobogum could not be his legitimate heir, the Michigan Supreme Court held that state courts had no right to interfere with internal, domestic relations of reservation Indians, and upheld the claim. Justice Voelker’s tale is a powerful defense of the decision, and offers insights into why state courts should recognize the judgments of tribal courts even today.
Utilities File Cert Petition in EPA Mercury Case
Here is the cert petition.
And here and here are links to our previous post, with the D.C. Circuit’s opinion and other materials.
GTB Supports Deer Baiting Ban
From the TC Record-Eagle:
TRAVERSE CITY — Some Michigan politicians want to lift a ban on using bait to lure deer during hunting season in lower Michigan.
State officials banned baiting over fears it could help spread a deadly deer disease, but politicians who oppose the restriction said those who grow and sell bait crops could suffer financially.
State Sen. James Barcia, D-Bay City, plus state Reps. Joel Sheltrown, D-West Branch, and Jeff Mayes, D-Bay City, sponsored similar resolutions in the Michigan legislature this week to urge state officials to rescind a ban enacted after a deer at a private ranch in Kent County tested positive last month for chronic wasting disease.
The politicians contend state officials overreacted.
***
Not everyone agrees.
The Grand Traverse Band of Ottawa and Chippewa Indians supports the baiting ban. Michigan’s wild deer herd is a valuable natural resource for the public and the tribe, said Hank Bailey, a tribal fish and wildlife technician and elder tribe member.
“If they bow to this, they are jeopardizing that resource,” Bailey said, adding he fully expected politicians to meddle in the decision.
Yakama v. Gregoire TRO Against State Tax Law Enforcement
The Eastern District of Washington issued a TRO at the behest of the Yakama Indian Nation preventing the State of Washington from enforcing its tobacco tax laws against the Nation on Sept. 12. Here are the materials:
Paul Spruhan on the Canadian Indian Free Passage Right
Paul Spruhan, a law clerk for the Navajo Nation Supreme Court, has posed “The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law,” forthcoming in the North Dakota Law Review. Here is the abstract:
The paper discusses the little-known provision of the Immigration and Nationality Act that allows Canadian Indians to cross the United States-Canada border free of visa and other immigration requirements. Noting that the provision restricts the right to persons of 50% or more “blood of the American Indian race,” the paper traces its origin in a 1928 statute that did not include the blood quantum requirement, the interpretation of the term “Indian” as used in the 1928 statute by the Immigration and Naturalization Service, and the reasons for the 1952 amendment that added blood quantum. The paper then discusses the constitutionality of the provision in light of the current approach of the United States Supreme Court to racial provisions in federal Indian law and immigration law.
Ottawa Tribe v. Ohio Dept. of Natural Resources — Sixth Circuit Materials
Please see our previous post on this case here (it links to the briefs and other materials in the lower court).
Here is the Ottawa Tribe’s opening brief: appellant-brief
And here is the amicus brief signed by the National Congress of American Indians and several Michigan tribes on the laches question: brief-amici-curiae
2008 Term Preview: The Long Conference — September 29, 2008
On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.
1. Hawaii v. Office of Indian Affairs (07-1372)
This petition has a fairly good chance to be granted.
The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).
2. Ho-Chunk Nation v. Wisconsin (07-1402)
I don’t think this one has much chance to be granted.
It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)
3. Kemp v. Osage Nation (07-1484)
This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.
Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.
4. Kickapoo v. Texas (07-1109)
This one has a slight chance for a grant.
I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.
Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.
5. Klamath Tribes v. PacificCorp (07-1492)
This one has no chance.
First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦
6. Matheson v. Gregoire (08-23)
Again, no chance.
First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.
7. South Fork Band v. United States (08-100, 08-231)
No chance.
This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.
8. United States v. Navajo Nation (07-1410)
Very, very good chance for a grant.
First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).
Either way you have a grant.
“American Indian Education” Profiled by ICT
From ICT:
TEMPE, Ariz. – Matthew L.M. Fletcher is an associate professor at Michigan State University College of Law and he is the director of the Indigenous Law and Policy Center. He recently published, ”American Indian Education: Counternarrative in Racism, Struggle, and the Law” through Routledge. He graduated from University of Michigan Law School.
Indian Country Today: Why did you choose to pursue a career in law?
Matthew L.M. Fletcher: I just want to be able to contribute something to the community and I also was thinking in different ways, even before I started college, what I could do. I had talks with people who are from my community and elders from Michigan who talked a lot about how in the ’70s and ’80s, the big treaty fishing cases were going on and people were really happy with the outcomes with those cases but they were sad to see all the litigation conducted and organized and control by people that were not from the community.
ICT: Do you feel like you have helped your tribe?
Fletcher: I feel like I’ve contributed something and I continue to contribute something. My whole life will be a process of contributing. I think it has been real good.
ICT: What is the future of Indian law?
Fletcher: It’s interesting. The ’70s and ’80s were about litigating treaty rights. The key for Indian lawyers is not so much about going to court but it’s about developing governmental structures within the tribe which is what lawyers do. It’s actually a folly to go to federal courts now. All you have to do is ask anyone who does any kind of litigation in federal court if you’re representing a tribe or tribal interest you can’t expect to win. It’s going to be that way for a long time. The thing that you see is institution building within Indian country. There are some incredible things going on that are not getting a lot of attention. There is a lot of creativity with people bringing back indigenous culture and tradition.
ICT: How would you define sovereignty?
Fletcher: My view of sovereignty is that it is the right to make your own mistakes and to decide things for yourselves. That is really what it is about. Tribes have the wherewithal, the ability and the legal authority to pursue different avenues of governance. They are going to do something where everyone shakes their heads, and then they are going to do other things where people are going to just say, ”Wow.” There is an incredible amount of diversity and creativity going on right now.
NYTs on Gila River Water Rights
From the NYTs:
GILA RIVER INDIAN COMMUNITY, Ariz. — More than a hundred years ago, the Gila River, siphoned off by farmers upstream, all but dried up here in the parched flats south of Phoenix, plunging an Indian community that had depended on it for centuries of farming into starvation and poverty.
If that was not bad enough, food rations sent by the federal government — white flour, lard, canned meats and other sugary, processed foods — conspired with the genetic anomalies of the Indians to sow an obesity epidemic that has left the reservation with among the highest rates of diabetes in the world.
Now, after decades of litigation that produced the largest water-rights settlement ever in Indian country, the Indians here are getting some of their water back. And with it has come the question: Can a healthier lifestyle lost generations ago be restored?
Reviving the farming tradition will prove difficult, many tribal members say, because the tribes, who number 20,000, including about 12,000 on the reservation, have not farmed on a big scale for generations. Fast food is a powerful lure particularly for the young, and the trend of late has been to move off the reservation, to work or live.
Turtle Talk 
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