treaty rights

Kevin Maillard on Black Seminoles and History

Matthew L.M. Fletcher

Kevin Noble Maillard (Syracuse) has posted “Redwashing History: Tribal Anachronisms in the Seminole Nation Cases” on SSRN. It is forthcoming from the Freedom Center Journal. Here is the abstract:

The status of people of African descent in indigenous nations generates important questions about what it means to be Indian. A fair understanding of the Freedmen controversy necessitates an explanation of the historical sites of contention that affect the Freedmen’s inclusion in the Nation. This essay critically examines the plasticity of memory – how both parties remember and forget the past in order to justify the present. It directly addresses the radically disparate interpretations of government documents by Indians and blacks, and how these readings of federal texts are constitutive of Seminole membership. The rigid adhesion to Indian blood by tribal governments marks a curious manifestation of sovereignty and self-determination. This dogged claim to autonomy and authenticity exemplifies a misapplied and dangerous discrimination hiding behind the mask of political ideology.

Ninth Circuit Affirms Constitutionality of Bald Eagle Protection Act

Matthew L.M. Fletcher1 Comment

In consolidated cases, the Ninth Circuit affirmed the constitutionality of prosecuting American Indians under the Bald and Golden Eagles Protection Act, rejecting a challenge under the Religious Freedom Restoration Act. A similar case is under review by the Tenth Circuit (United States v. Friday).

The Ninth Circuit applied a 2003 precedent, United States v. Antoine, upholding the law under similar facts. Here are the materials.

us-v-antoine-ca9-2003

vasquez-ramos-opening-brief

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Spring Fishing Season Brings Consent Decree Attention

Nick Reo

As folks start dusting off thier spring fishing gear, the 2007 Consent Decree is getting some press again. It is good to keep balanced information in front of Michigan citizens as we come upon walleye spawning and subsequent inland spearing. These activities will present a culture shock for some citizens, so some balanced coverage by local media outlets will be useful.

By the way, the Michigan DNR is hiring 2 fisheries biologists to work on their tribal coordination unit and whose duties will relate directly to implementing the 2007 Consent Decree. The postings close on 4/22/08.

Nez Perce Tribe v. NOAA – Water Diversion Injures Snake River Steelhead

Matthew L.M. Fletcher

The district court in the District of Idaho granted summary judgment to the Nez Perce Tribe on the question of whether a planned water diversion from the Snake River would harm the Snake River Steelhead, an endangered species.

Here are the materials:

dct-opinion-nez-perce

nez perce motion for summary judgment

noaa-motion for summary judgment

Two Makah Whalers Convicted in Federal Court

Matthew L.M. Fletcher

From Indianz:

A federal magistrate convicted two members of the Makah Nation of Washington for hunting a gray whale without federal approval.

Wayne Johnson and Andy Noel were convicted of conspiracy to violate the Marine Mammal Protection Act and unlawfully taking a marine mammal. They waived the right to a jury trial but plan to take their case to the >9th Circuit Court of Appeals. Johnson and Noel face up to one year in prison Three other tribal members who participated in the hunt pleaded guilty in exchange for no prison time.

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D.C. Circuit Briefs in Vann v. Kempthorne

Matthew L.M. Fletcher1 Comment

Here are the briefs before the D.C. Circuit in the ongoing Cherokee Freedmen case.

cherokee nation-appellant-brief

vann-appellee-brief

cherokee-nation-reply-brief

Cherokee Principal Chief Chad Smith to Conclude 2008 Federal Indian Bar

Matthew L.M. Fletcher3 Comments

Here is the final, final agenda for the FBA Indian Law Conference, now featuring Cherokee Nation principal chief Chad Smith, who will be speaking about the Cherokee Freedmen issue.

final-fba-2008-agenda-plus-smith

Federal Court Makah Whaling Trial Set for Next Week

Matthew L.M. Fletcher

From the AP:

Trial is scheduled to begin Tuesday in federal court in Tacoma for two Makah tribal members accused of killing a gray whale without a federal permit.

Andy Noel and Wayne Johnson face up to a year in prison and a $100,000 fine if convicted of violating the Marine Mammal Protection Act. The two turned down a plea deal accepted last month by three other whalers. All five still face prosecution in tribal court in Neah Bay. They harpooned and shot a whale Sept. 8 in the Strait of Juan de Fuca.

On a pretrial motion, Magistrate J. Kelley Arnold ruled that the defendants could not argue the whaling was a religious or cultural exercise. Defense lawyer Jack Fiander says that may be appealed.

Ottawa Tribe v. Ohio Dept. Natural Resources Treaty Rights Claim Rejected

Matthew L.M. Fletcher1 Comment

Here is the opinion (H/T Indianz). Here is the link to the materials we placed on the blog in December.

Dispute over Access to Straits of Mackinac

Matthew L.M. Fletcher

From the Petoskey News-Review:

In a pending lawsuit, the owners of a Wawatam Township lot are seeking ownership of an adjacent strip of property that the public often uses to access the Straits of Mackinac.

The legal efforts have raised concerns from county and township officials about the potential loss of public water access.

“What we don’t want to do is, we don’t want it to fall into the hands of a private owner,” said Wawatam supervisor Roger Moore. “We want to keep it so it would be accessible to the public like it always has.”

Adjoining landowner Ralph Reisinger said he’s looking for a way to control illegal activities by visitors rather than putting the spot off limits. He noted that some of the people who’ve visited the area at the end of the road have engaged in activities such as littering and building unauthorized campfires on his lot and setting off illegal fireworks.

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