They’re here, courtesy of the Supreme Court Project:
In support of Respondents:
Amicus Brief of Narragansett Indian Tribe
treaty rights
Jackie Hand on Climate Change Threat to American Indians
Jacqueline Hand has published “Global Climate Change: A Serious Threat to Native American Lands and Culture” in the Environmental Law Reporter. Here is the abstract:
During the past decade, public perception of global climate change has transformed from a gloom and doom scenario not to be taken seriously to a nearly universally recognized peril to the planet. Native Americans, especially those in the Arctic region, experience changes in climate with greater immediacy than the general population, and this disproportionate result is expected to become more severe as the effects of climate change escalate. This Article will explore the nature of the impact of climate change on Native Americans, the importance of including traditional tribal knowledge and expertise in understanding the crisis and developing adaptive mechanisms, and the responses by individual tribes as well as by indigenous people as a whole.
Bob Anderson on Treaty Substitutes in the Modern Era
Bob Anderson has posted “Treaty Substitutes in the Modern Era” on SSRN. This paper is a book chapter in the forthcoming book “The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest,” edited by Alexandra Harmon.
Here is the abstract:
This chapter compares two modern Indian property settlements processes – the Alaska Native Claims Settlement Act and the Snake River Basin Water Rights Settlement – with the mode of agreements in the Pacific Northwest in the mid-19th Century.
Ebony on the Cherokee Freedmen
It’s a little old, but an interesting read. Here is Ebony Magazine’s “What Does Indian Blood Look Like?”
Commentary on Snowbowl Case
From Truthout:
Ninth Circuit rules effluent does not defile sacred space. Forest Service argued skiing on treated sewage “a compelling government interest.”
The San Francisco Peaks of Northern Arizona “are sacred to at least 13 formally recognized Indian tribes … and this religious significance is of centuries duration.”(1) In February 2005, the US Forest Service issued a Final Environmental Impact Statement and Record of Decision approving a proposal to make artificial snow using treated sewage effluent at the Snowbowl Resort located on Humphrey’s Peak, the highest and – to the tribes – most holy of the San Francisco Peaks. That decision was appealed by the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai-Apache Nation and the White Mountain Apache Nation. The Circuit Court ruled for the Forest Service. In February 2007, a three-judge panel of the Ninth Circuit Court unanimously overturned the lower court’s decision. On Friday, August 8, 2008, the en banc majority of the Ninth Circuit Court ruled that “using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the Religious Freedom Restoration Act (‘RFRA’). It also holds that a supposed pleading mistake prevents the tribes from arguing under the National Environmental Act (‘NEPA’) that the Forest Service failed to consider the likelihood that children and others would ingest snow made from the effluent.”(2)
On August 18, Leslie Thatcher, of Truthout, spoke with the Navajo Nation’s lead attorney in the case, Howard Shanker, who is also running in the Democratic primary for Arizona Congressional District One, the seat currently held by retiring Representative Rick Renzi (R-Arizona), presently under indictment for extortion, wire fraud, money laundering, and other charges related to an Arizona land deal.
Leslie Thatcher, for Truthout: Howard, what do you consider the most important issues in the Snowbowl case to be?
The San Francisco Peaks are federal land and the government has documented for years that the Peaks – especially Humphreys where Snowbowl is located – are sacred to local tribes. Nonetheless, the Feds issued a special use permit to operate a ski resort there that was unsuccessfully challenged in the 1970’s. Most recently, the Forest Service ruled that the resort could pipe up to 1.5 million gallons of treated sewage effluent to the resort for snowmaking in winters when natural snowfall is inadequate. The tribes have appealed that ruling.
The central issue that’s going on and that’s really important is that Native tribes have no First Amendment rights when it comes to government land-use decisions. And the federal government holds thousands of acres of land across the country that the tribes hold sacred. Up until we used the Religious Freedom Restoration Act [RFRA] successfully, there was no way for the tribes to challenge federal use of sacred lands. Now, they have to show there is a compelling government interest and that they are using the least restrictive means of furthering that compelling government interest when government action substantially burdens the exercise of religion.
The current ruling is that there is no substantial burden on the exercise of religion. The judges have said there is no objective evidence of impact on religious belief and practice.
Short of producing God in the courtroom, there’s no way to produce “objective” evidence. A Navajo elder testified that putting effluent on the mountain would be like raping his mother. Other testimonies – the sincerity of which were never challenged – described the disruptions to the spiritual world and contamination of the ritual purity of materials essential to Native ceremonies that spraying the effluent would result in.
The en banc court adopted a very restrictive reading of “Sherbet and Yoder” that does not seem to speak to the statute. In any event, spraying the Peaks can certainly be interpreted as a form of punishment or coercion.
The tribes appealed the Forest Service decision under the Religious Freedom Restoration Act (RFRA) rather than the First Amendment to the US Constitution. Can you explain how the RFRA differs from the First Amendment and why Congress passed the act?
In “Smith,” the Supreme Court said laws of general application can’t constitute a general burden under the Constitution. So then, Congress passed RFRA to say that even though a law may be of general applicability, if it results in a substantial burden to the exercise of religion, you have to do this balancing of interests. Then in 2003, Congress passed the Religious Land Use and Institutionalized Persons Act [RLUIPA] amending and broadening RFRA’s definition of “exercise of religion.”
The Ninth Circuit Court dissent, written by Judge Fletcher, joined by Judges Pregerson and Fisher, notes that “Under our prior case law, a ‘substantial burden’ on the ‘exercise of religion’ exists where government action prevents an individual ‘from engaging in [religious] conduct or having a religious experience’ and the interference is ‘more than an inconvenience.'” Can you explain how spraying up to 1.5 million gallons of effluent a day on the sacred mountains burdens the various plaintiff tribes’ exercise of religion?
For the Hopi, the Mountain is where the Katsina live; that’s their only sacred mountain; the Katsina are responsible for making the moisture that is essential to Hopi life. It was on Mt. Humphreys that the Hopi had their revelation and they return there for pilgrimages.
For the Navajo, it’s one of four sacred mountains, but it is essential to all blessing way ceremonies which depend on ritually pure materials gathered from the mountain.
The tribes see the Peaks as a single living entity; this is a living being. You can’t poison just one part of it without poisoning the whole.
One man testified that current ski runs are like a scar on the body, something the body can live with, but that putting effluent on the Peaks is like a toxic injection.
For the Apache, the mountain is where souls go after death; the transfer station of souls to Heaven and the spraying will interfere with that operation.
For both the Hualapai and the Navajo, the mountain is their Garden of Eden, where life started.
The government has never questioned the specific special holiness of these mountains to the Native tribes. In fact, in the very beginning, the National Historic Preservation Act uses the Peaks as an example of a sacred space.
Yakama-Colville Dispute over Fishing Territories
The federal district court held that the two tribes, which had disputed fishing rights over places along the Columbia River, had to share. aug-2008-dct-order
From the opinion:
The dispute is part of a longstanding case brought by the United States to define certain Indian tribes’ treaty rights to take fish at all usual and accustomed places along the Columbia River and its tributaries. Colville sought to intervene in the case on two occasions, once in 1989 and once in 1999, but its requests were denied. See United States v. Oregon, 29 F.3d 481 (9th Cir. 1994) (“Oregon I”). In 2002, instead of moving to intervene yet again, the Colville Wenatchi began fishing at Icicle Creek.
On August 18, 2003, I granted Yakama’s motion for injunctive relief, enjoining Colville and its constituent tribes from fishing at Icicle Creek and holding that Colville was precluded by res judicata from asserting the arguments it raised in opposition to Yakama’s motion. Colville appealed that holding, and the Ninth Circuit reversed and remanded the case “for trial on the merits.” United States v. State of Oregon, 470 F.3d 809, 818 (9th Cir. 2006) (“Oregon II”). Upon remand from the Ninth Circuit, the matter was tried to the court on May 6, 7 and 8, 2008. Upon conclusion of the trial, Yakama, Colville, the United States, and the State of Washington submitted post-trial briefing.
For the reasons stated below, I find the Wenatchi and Yakama have joint fishing rights to fish at the Wenatshapam Fishery, which is located at the confluence of the Wenatchee River and Icicle Creek. Due to the alteration of this site by white settlement, and the fact that the evidence demonstrates fishing on Icicle Creek, in addition to fishing on the Wenatchee River, the nearest location for the Wenatshapam Fishery is the Leavenworth National Fish Hatchery on Icicle Creek.
Commentary on Arizona Snowbowl Case
From NewsPirates:
Native Americans have traditionally come up short, getting the s**** end of the stick from the Federal government for several hundred years. The 9th Circuit Court of Appeals has given it to them again, this time literally.
The court ruled that using treated wastewater on the San Francisco Peaks in Arizona to make artificial snow does not violate the Religious Freedom Restoration Act and overturned a previous ruling that would have protected the mountain that is sacred to at least 13 Indian tribes.
These dunderheads wrote this in the majority: “The only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience.”
Okay so let’s start spraying treated wastewater on the National Cathedral to clean it! Maybe we should mandate that those upscale ski resorts in Aspen should use refined sewage to make their snow so that the rich can zip down the trails! Maybe the next time the Pope shows up he can get out a hose and use some treated effluent, blessed as it comes out of the nozzle, to wet down the adoring throng!
But the real issue is religious freedom. The site has been sacred to Native Americans not for just a few hundred years but for a few thousand. The judges ruling that the tribe “cannot dictate the decisions that government makes in managing ‘what is, after all, its land.’, is a bull. It was the Indians land long before the government ever showed up to commit our own little genocide.
The tribes will appeal, probably to the U.S. Supreme Court, but considering the make up of that what is now a less than august body, their chances are not very good and you know what will continue to be sprayed on the San Francisco Peaks.
Carrie Garrow on Haudenosaunee Land Claims
Carrie Garrow has published “Following Deskaheh’s Legacy: Reclaiming the Cayuga Indian Nation’s Land Rights at the Inter-American Commission on Human Rights” in the Syracuse Journal of International Law and Commerce. Here is the intro:
Deskaheh, Chief of the Younger Bear Clan of the Cayuga Nation in the 1920s, prepared the path for international recognition of Haudenosaunee (People of the Longhouse) sovereignty and human rights. An eloquent orator and resolute leader, he spent many years advocating for international recognition of Haudenosaunee sovereignty and treaty violations by Canada. In 1921, as Speaker of the Six Nations Council, he traveled on a passport issued by his nation to seek British aid to halt Canada’s attempt to overthrow the traditional form of government and impose an elected band council. Despite failing to convince the British to intervene and protect the treaty they had signed with the Six Nations living in Grand River, Deskaheh returned to Europe in 1923. He traveled to Geneva to “bring his peoples’ case before the League of Nations.” While he fought to receive permission to appear before the League, the Canadian government, in violation of Haudenosaunee sovereignty and treaties, announced a “free election” under armed guard of twenty Canadian police at Grand River to determine whether or not the Six Nations Government of Grand River Land should be dissolved. Meanwhile back in Geneva, Deskaheh was denied permission to appear before the League’s plenary session, despite the Netherlands and Albania’s support of his petition. Determined to educate the world about the violation of his people’s rights, Deskaheh presented his nation’s case at a press conference attended by many nations and “[w]hen he finished, there was a moment of silence–then the roar of a tremendous ovation. Thousands rose to their feet to cheer him and the great hall echoed and re-echoed with their applause.” At the end of 1924, Deskaheh returned to the United States, an exile from Canada unable to cross the border. Although Deskaheh thought himself a failure, “he found that the people for whom he had fought did not think him a failure. From their northern homes in Grand River Land, they journeyed here to see him and assure him of their loyalty.”
Kate Fort on The New Laches
Kate Fort of MSU College of Law has posted “The New Laches” on SSRN. This is the first comprehensive and historical study of the application of laches doctrine to sovereigns, federal, state, and tribal. Here is the abstract:
Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the “new laches.” This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.
Turtle Talk 
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