Haudenosaunee Lacross Team

A Twist on the Haudenosaunee Passports Controversy?

Matthew L.M. Fletcher

So we should all be familiar with the Iroquois (Haudenosaunee) passports dispute (news articles here and here and here). Update: They can go! Another update: They can’t go.

Here’s a possible reason (I say possible with the faintest of certainty) that the State Department has suddenly become interested in Haudenosaunee passports (another reason might be the alleged immigrant and drug smuggling across the border problem):

The State Department has been litigating a massive NAFTA arbitration claim against Six Nations Grand River Enterprises, a large Haudenosaunee tobacco wholesaler located in Ontario and doing hundreds of millions of dollars of business in the States. The issue is whether the United States illegally destroyed Six Nations GRE’s investment in the U.S. by enforcing the Tobacco Master Settlement Agreement against them. Docs are here. The case is pending.

The opening argument in the actual hearing before the arbitration tribunal was made by the counsel for the State Department Harold Koh, who noted the importance of the tobacco MSA to the Obama Administration.

One way for the United States to lose the NAFTA arbitration (perhaps) is if the tribunal finds the tobacco MSA was intended to wipe out legitimate wholesalers like Six Nations GRE (which it most certainly is doing, and in my view it appears very likely that the major tobacco manufacturers and state AG offices had at least some intent to do when negotiating the settlement agreement).

Maybe the State Department is doing this business with the passports as payback? Who knows?

NYT Article on Haudosaunee Lacrosse Team’s Passport Dispute

Matthew L.M. Fletcher

Here.

An excerpt:

Spokesmen for the Department of Homeland Security and the British consulate said that they would not comment on specific cases. A spokeswoman for the State Department would only say that the Iroquois team has been offered expedited United States passports, but they declined that offer.

“It would be like saying the Canadians are having travel difficulties and the U.S. says we’ll make you U.S. passports and you can go over,” Ms. Waterman said.

Only a few Indian nations issue their own passports, said Robert J. Miller, a professor at Lewis & Clark Law School in Portland, Ore., who has written extensively about federal Indian law. He said that he had never heard of the United States government objecting to the use of such a document.

Neither has Robert Anderson, who was associate solicitor for Indian affairs in the Interior Department during the Clinton administration and now directs the Native American Law Center at the University of Washington School of Law.

“The tribes will probably say, ‘Hey, we’ve got the authority to do this,’ ” he said.

But the State Department said Monday that federal law does not allow a tribal document to be used in lieu of a United States passport when traveling outside the United States. A spokeswoman said that an October 2008 internal directive emphasized that policy, though it noted that other countries had sometimes recognized such documents.