The Ninth Circuit refused to reverse a district court opinion finding no implied cause of action in the Klamath treaties for damages related to the Klamath River fishkills. The Court held without opinion that Skokomish Indian Tribe v. United States foreclosed the claim.
treaty rights
Newcombe: “Examing the Oral Arguments in Dann”
From Indian Country Today:
The Internet is amazing. I came across the audio (along with a written transcript) of the 1984 oral arguments in the case U.S. v. Dann. By listening to the audio recording, we are able to experience the arguments made 24 years ago before the Rehnquist Supreme Court regarding the issue of Western Shoshone land rights.
Robert McConnell, Assistant U.S. Attorney General, argued on behalf of the United States, which was suing Mary and Carrie Dann for allegedly trespassing on ”public lands” (Western Shoshone lands) by grazing their livestock without a permit from the Bureau of Land Management. McConnell opened by saying: ”Mr. Chief Justice, and may it please the Court, this case comes before this Court on writ of certiorari to the Ninth Circuit Court of Appeals. It concerns the finality effect of Section 22(a) of the Indian Claims Commission Act.”
Wildenthal on Donovan v. Coeur d’Alene Tribal Farm — MSU Law Review
Bryan Wildenthal has posted “How a Ninth Circuit Panel Opinion Overruled a Century of Supreme Court Indian Law Jurisprudence — And Has So Far Gotten Away With It” on SSRN. This paper is part of the Michigan State Law Review’s symposium on federal labor law and tribal sovereignty.
Here’s the abstract:
Freedmen Claim Against United States Dismissed (Fed. Cl.)
The case is Harvest Institute Freedmen Federation v. United States. The court dismissed the claim under FRCP 12(b)(1) — failure to state a claim — but not on the government’s statute of limitations claim. Here are the materials:
Snake River Basin Adjudication Subproceeding (Idaho S. Ct.)
From the opinion, City of Pocatello v. Idaho et al.:
The City of Pocatello filed a claim in the Snake River Basin Adjudication (SRBA), asserting it had been granted a federal water right under an 1888 Congressional act. A special master in the SRBA determined that no such right existed. The district court affirmed on appeal, as does this Court.
Here is an audio file of the oral argument.
Cherokee Freedmen, 40 Acres, and a Mule
From the Atlantic:
How great a difference would the famous “40 acres and a mule”— the plot of land promised to freed slaves after the Civil War but never distributed—have made to the long-term prospects of African Americans? In a new paper, a University of Michigan economist examines the fortunes of slaves freed after the Civil War by the Cherokee Nation. As Cherokee citizens, these freedmen were granted the right to “claim and improve any unused land in the Nation’s public domain.” Analyzing farm data from 1880, 15 years after emancipation, the paper finds that a black freedman in a Cherokee community was five times as likely to be a landowner as the typical African American in the former Confederacy. The average black Cherokee man owned livestock worth 80 to 90 percent as much as the livestock of a nonblack Cherokee citizen, whereas the typical Southern black’s livestock was worth only 45 to 60 percent as much as the livestock of the average white man. And the data suggest that Cherokee blacks were more likely to make savvy long-term investments: in 1880, 60 percent of Cherokee freedmen farmers had planted peach and apple trees (which take three to seven years to bear fruit), compared with only 5 percent of black landowners in the South. This evidence, the author concludes, vindicates General O. O. Howard, the superintendent of the Freedmen’s Bureau, who claimed that “more might have been done to develop the industry and energy of the colored race if I had been able to furnish each family with a small tract of land to till for themselves.”
—“The Righteous and Reasonable Ambition to Become a Landholder: What Would Have Happened If Former Slaves Had Received Land After the Civil War?,” Melinda Miller, University of Michigan
LCO Tells Tribal Members Not to Pay County Property Taxes
This is an interesting development. I assume that Sawyer County will sue, along with the State of Wisconsin, to compel the payment of these taxes. And perhaps the Seventh Circuit will reach a different conclusion from the Sixth Circuit in KBIC v. Michigan. I wonder, however, if the Keweenaw Bay case’s expert reports were tribe-specific. Maybe, maybe not. Anyway, this interesting development may be a bad thing for Keweenaw Bay, who had to work to make sure the Supreme Court did not grant cert in their case. This development, for all practical purposes, appears to reopen that case.
From Indianz:
The Lac Courte Oreilles Band of Lake Superior Chippewa is telling tribal members not to pay property taxes in Sawyer County, Wisconsin.
Bay Mills and Sault Tribe Land Claims Settlement Bills Reported Out of Committee
During a Full Committee MarkUp session today, the House Committee on Natural Resources voted to report HR 2176 (A bill to provide for and approve the settlement of certain land claims of the Bay Mills Indian Community) to the floor of the House of Representatives by a vote of 21 to 5.
The Committee also voted to report HR 4115 (A bill to provide for and approve the settlement of certain land claims of the Sault Ste. Marie Tribe of Chippewa Indians) to the floor of the House of Representatives by a vote of 26 to 5.
HR 2176 authorizes the Bay Mills Indian Community to operate a gaming facility in Port Huron. HR 4115 authorizes the Sault Ste. Marie Tribe of Chippewa Indians to operate a similar facility in either Romulus or Flint. In both cases attempts to amend the bills were voted down.
We’ve posted about these bills and issues surrounding them here, here, here and here
“Prop. 2 and Michigan American Indian Students” — Michigan Journal of Race & Law Symposium
I will be giving a short talk at the Michigan Journal of Race and Law‘s symposium on affirmative action in Michigan post-Prop. 2 this Saturday. Here are materials for my talk:
Michigan Civil Rights Commission Report — “One Michigan” at the Crossroads: An Assessment of the Impact of Proposal 06-02
MCRC Report Attachment #4 — The Michigan Indian Tuition Waiver is Based on a Political Relationship, not a Racial Classification
Michigan AG Declination to Issue Opinion re: Michigan Indian Tuition Waiver
MSU Indigenous Law & Policy Center Letter to the Michigan Law Review Commission
Hoopa v. United States (Fed. Cl.) Complaint
The latest in this incredible saga — Complaint.
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