Confederated Salish & Kootenai Tribes Prevail in Trespass Action re: Big Arm Town Site

Here are the updated materials in Confederated Salish and Kootenai Tribes v. Lake County Board of Commissioners (D. Mont.):

88 County MSJ

89 Lundeen Response to CSKT MSJ

93 Tribe Reply in Support of MSJ

96 CSKT Response to Defs’ MSJs

100 County Reply in Support of MSJ

108 DCT Order

Prior post here.

Navajo Nation Sues and Seeks TRO Against State Court Jurisdiction Over Easement on Allotted Land

Here are the materials in the matter of Navajo Nation et al v. Rael et al, 16-cv-00888 (D. N.M. 2016):

Doc. 1 – Complaint for Injunctive and Declaratory Relief

Doc. 2 – Motion for Expedited Temporary Restraining Order

Federal Court Holds US May Sell Unallotted Timber Resources over Opposition from Chickasaw and Choctaw Nations

Here are the materials in Chickasaw Nation v. Dept. of Interior (W.D. Okla.):

254 Tribes Motion for Summary J

260-1 US Cross-Motion

266 Tribes Reply

269 US Reply

270 DCT Order

Here is the relevant statute authorizing (or mandating) the sale of the resource, as reproduced in the court’s order. Judge for yourself:

That when allotments as provided by this and other Acts of Congress have been made to all members and freedmen of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes, the residue of lands in each of said nations not reserved or otherwise disposed of shall be sold by the Secretary … under rules and regulations to be prescribed by him and the proceeds of such sales deposited in the United States Treasury to the credit of the respective tribes. . . . The Secretary … is hereby authorized to sell, whenever in his judgment it may be desirable, any of the unallotted land in the Choctaw and Chickasaw Nations, which is not principally valuable for mining, agricultural, or timber purposes, in tracts of not exceeding six hundred and forty acres to any one person, for a fair and reasonable price, not less than the present appraised value. . . . Provided further, That agricultural lands shall be sold in tracts of not exceeding one hundred and sixty acres to any one person.

Brief Guest Post from Craig Dorsay on the Proposed Casino in Bremerton, WA

[In re the article posted here.] I am tribal attorney for Samish, which is mentioned prominently in the article.  The family, which is Samish, has approached the Samish Tribal Council a number of times, asking the Samish Tribe to undertake the project.  Recently the family approached the Samish Tribal Council again, now under the auspices of a California casino developer, raising the proposal again. The Samish Tribe has repeatedly declined the family’s request to pursue this project in Bremerton. Bremerton is not within or near the traditional territory of the Samish Tribe, and the land in question has never been under the governmental jurisdiction of the Samish Tribe. The nearest tribe is the Suquamish Tribe, which likely has the strongest claim to this area.  The Samish Tribe has informed the Suquamish Tribe that it is not part of this project and has no interest in being associated with it in any shape or form.

This is a difficult issue for Samish because as a tribe re-recognized under the Federal Acknowledgment Regulations, Samish has encountered great difficulty in opening its own gaming operation in its territory. Samish was opposed in re-recognition by neighboring tribes – Swinomish, Lummi, Upper Skagit and Tulalip, and those tribes continue to oppose any proposed land into trust and gaming operation by Samish.  The neighboring tribe, Swinomish, through their Chairman, Brian Cladoosby, has raised the Carcieri decision against Samish, including for gaming. While an alternative opportunity to pursue gaming farther away might be appealing, the Samish Tribe has always done the right thing and declined any offer to intrude on the territory or interests of another tribe. Craig Dorsay

Tribal family’s quest to build casino in Bremerton faces hurdles, foes | Local News | The Seattle Times

Here’s an interesting article about a family’s attempt to develop a casino on an allotment they own off-reservation in Bremerton, Washington. The allotment was originally issued to a Quinault tribal member but her descendants, who currently own it, are Samish.


Article on Allotment-Era Literature and Cases on Tribal Jurisdiction and Reservation Diminishment

My article. “How Allotment-Era Literature Can Inform Current Controversies on Tribal Jurisdiction and Reservation Diminishment” was recently published in volume 82 of the University of Toronto Quarterly, in a special issue on law and literature.

I looked at non-Native authored and Native-authored literature of the time, specifically in South Dakota and surrounding states and territories, to see whether it helped illuminate the injustices that were being perpetrated on tribes through the allotment process and the takings of surplus lands. The idea was that this literature might have, like the news articles I looked at in “Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers,” put purchasers on notice that tribal lands were being taken unjustly. Most of the non-Native literature I looked at was not that helpful, but a work by historian/poet Doane Robinson was an exception. On the Native side, Zitkala-Sa’s short stories proved to be the most helpful, but the works I looked at by Luther Standing Bear and Charles Eastman were also somewhat helpful.

Unfortunately, the article isn’t available on Lexis or Westlaw, but it is on Muse, if you have access to that. A sightly older version is on my ssrn page.

Ann Tweedy on Unjustifiable Expectations

Highly recommended!!!!

Ann Tweedy has posted her paper, “Unjustifiable Expectations,” on SSRN. Here is the abstract:

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it sometimes refers implicitly or explicitly to the non-Indians’ justifiable expectations, and Philip Frickey has argued that a concern with non-Indians’ justifiable expectations drives Court decisions about tribal jurisdiction even when the Court does not express that concern directly. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I examine historical newspaper articles and other historical sources regarding the opening up of reservations to non-Indian purchasers, specifically focusing on articles relating to cessions by the Sioux Nation and especially the Cheyenne River Sioux Tribe. Such sources suggest that non-Indian purchasers were on notice, in at least some cases, of a potential violation of tribal rights in the opening of portions of reservations to non-Indian settlement. Based on my argument that “justifiability” encompasses both reasonableness and a notion of justice, this information is used to show that the non-Indian purchasers’ presumed expectations about the disappearance of reservations were not justifiable because the purchasers had notice in many cases that lands were unjustly being taken from the Sioux Nation and other tribes. If, as I will argue, non-Indian expectations of tribal disappearance were unjustifiable, such expectations should not be given weight in determinations of tribal jurisdiction today.

Eighth Circuit Affirms Conviction of Pine Ridge Man who Shot through Grill of BIA Truck

Here is the opinion in United States v. Wisecarver: Wiscarver CA8 Opinion.

An excerpt:

Marc Wisecarver fired a rifle shot through the front grill of a government owned pickup truck in the custody of a Bureau of Indian Affairs (“BIA”) land assessor. After we vacated his initial conviction for depredation of government property, a second jury found him guilty of the same charge, and the district court sentenced him to 36 months’ imprisonment. We affirm the conviction and term of imprisonment, but we vacate three special conditions of supervised release and remand to the district court for an individualized assessment with respect to those special conditions.