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.
Phillip M. Kannan has published “Reinstating Treaty-Making with Native American Tribes” in the William and Mary Bill of Rights Journal. An excerpt:
This Article proceeds as follows. The legal history of treaties and treaty-making with Indian tribes and the significance of these treaties to United States law are explored in Part I. The dissatisfaction of the House of Representatives with the practice of Indian policy being established by the President with the advice and consent of *813 the Senate is outlined in Part II. Part III then recounts major legislation that followed the enactment of section 71 and the harm these laws caused Indian tribes. In Part III, I also analyze the mischaracterizations of that law by the Supreme Court and the harm this has caused. Building on this background, Part IV develops the argument that section 71 violates the express provisions of the Constitution and the political theory on which it was based; Part V analyzes applicable Supreme Court precedent and concludes that section 71 violates the principles established by these cases; and Part VI argues that it is inconsistent with a theory developed by Justice Kennedy, namely, the guarantee of political liberty provided to each citizen by the federal structure of the Constitution. Part VII then explores the constitutional consequences that would follow from upholding section 71. I conclude with some suggestions of how section 71 could be repealed or overturned.
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.
New York successfully defended a judgment in its favor from last November (noted here) from a Rule 59 motion to modify the judgment. Also, the district court issued a permanent injunction against the Shinnecock Indian Nation, preventing them from opening a gaming operation under the Indian Gaming Regulatory Act.
Here are the materials:
Here is a link to the opinion. Gaming Court Decision (October 31, 2007):
Part 1 | Part 2 | Part 3
Here is the tribe’s Shinnecock Trial Brief
and here is the tribe’s proposed findings of fact: Shinnecock Proposed Findings of Fact
From the Denver Post:
Much of the law that governs America’s Indian lands starts with a trade-off.
In the 18th and 19th centuries, tribal chiefs signed treaties giving away their rights over vast stretches of territory, and in turn the federal government took on specific obligations. Much of Indian Country policy since has been an effort to resolve the inevitable tensions: the federal government as guardian of Indian interests versus the tribes’ view of themselves as sovereign peoples.
Nowhere is the myth of sovereignty so apparent as the sphere of justice. Shocked that the murderer of a Brule Sioux chief was set free under tribal custom, Congress in 1885 gave the federal courts power to prosecute the most serious crimes in Indian
Country, declaring that many Indians would “be civilized a great deal sooner by being put under (federal) laws.”The reach of that power was codified in a series of court cases and laws stretching over the next 90 years, which limited tribal court sentences to one year and stripped tribes of any authority to arrest or prosecute non-Indians.
One result was to create perhaps the most complicated jurisdictional regime in the country. It’s the only legal system under which the race of the victim and perpetrator determines the court of jurisdiction.
Police working on or around Oklahoma’s patchwork reservations have to carry GPS devices because the change by a few feet in the location of a crime can determine whether it’s under state, tribal or federal authority.
Another result was to short-circuit the relationship between prosecutors and the communities they serve. There are no elected district attorneys accountable to the community. And it’s among the rare arenas where federal prosecutors routinely deal with ordinary violent crime, usually the purview of state courts.
It’s a job the federal system wasn’t designed to do, experts say, and in many cases does poorly.
Blurred lines of responsibility
Take the case of the investigation of major crimes.
With several agencies potentially involved – both tribal and federal – major investigations offer an opportunity for broad mutual support. Instead, they are hampered by cross-cutting jurisdictional lines, poor communication, thin resources and a vast lack of accountability.
Strictly speaking, the FBI is responsible for serious Indian Country crime. In practice, lines of both authority and responsibility often blur.
Both tribal police and the federal Bureau of Indian Affairs have the authority on some reservations to investigate felony crime, alongside the FBI. The agencies often cooperate, but there are few hard-and-fast rules to allocate cases, and with all three elements badly undermanned, serious crimes tumble through the cracks.
For those felony crimes that are fully investigated and forwarded to U.S. attorneys for prosecution, two- thirds are rejected out of hand. If both the victim and defendant are American Indian, the cases can be taken through tribal court and the suspects charged with any crime covered by the tribe’s legal codes – including murder, arson, rape and drug trafficking. But limitations on sentencing effectively turn all of those crimes into misdemeanors, and tribal jails’ chronic overcrowdedness can reduce the time behind bars to a few months, even weeks.
Nick Reo’s recent post on online posts written in response to the Inland settlement reminded me of a dissertation by Scott G. Sochay, “Newspaper Images of Native Americans: Michigan Newspaper Coverage of Treaties and Compacts Affecting Indians in the Territory and State of Michigan” (1998). The diss. covers the 1819Treaty of Saginaw, the 1836 Treaty of Washington, and the 1993 gaming compacts.
It’s a large document, but you can download it here: Sochay Dissertation
The final documents are here
Consent Decree [sans appendices]
Sixth Circuit Opinion — Denial of Motion to Intervene by Amici
In 2002, the three Michigan Ottawa tribes sued Great Spring Waters & Governor Engler over the State’s granting of rights to take millions of gallons of water from mid-Michigan’s water table — a sweetheart deal if there ever was one. The tribes sued under the Water Resources Development Act of 1986, but there was no cause of action and the district court dismissed the action. The tribes did not appeal.
Here is the motion to dismiss: Motion to Dismiss
Here is the Tribes’ response, plus an exhibit: Response Brief + Exhibits
Here is the reply brief: Reply Brief
Here is the order dismissing the case: Opinion
The tribes chose not to bring claims based on the treaty rights they had established in United States v. Michigan. At some point, we expect tribes to bring treaty claims in the environmental protection context — see our MSU Law Review paper.
There has been a fair amount of scholarly commentary on the case, such as this student note in the Columbia Law Review and this paper in the Vermont Journal of Environmental Law.
Earlier this year, the Michigan Court of Appeals decided Moses v. Dept. of Corrections, a case brought by a convict who committed a crime on the Isabella Reservation near Mt. Pleasant. He brought a habeas claim on the basis that the parcel of land on which he committed the crime was “Indian Country” and outside the state’s jurisdiction. He lost. We’re looking up the briefs of the case right now, but the decision rested on the federal Swamp Lands Act. In short, according to the COA, Congress granted certain swamp lands to the State in 1862, lands that otherwise would have become part of the Isabella reservation, so that those lands are not nor ever were Indian Country.
The Moses Court relied on a previous Mich. COA case, People v. Bennett, 491 N.W.2d 866 (1992), which included this language:
In this case, the parties have not presented evidence of the negotiations surrounding the formation of the Treaty of October 18, 1864. However, examining the treaty itself, it appears that the parties intended for the previously sold lands to be excluded from the reservation, because the Chippewas were granted all the “unsold” lands within the six townships. Given the plain language of the treaty, and the lack of evidence to the contrary, we believe the Chippewas would have understood at the time of treaty formation that they were not permitted to settle on or own any lands previously patented to individuals. [emphasis added]
It’s fairly difficult for me to believe that the Ogemuk knew about the Swamp Land Act in 1864, especially given that most Indian agents of the day supposedly schooled in India-related laws and regulations had no clue. And to have attributed to them this knowledge, when they did not speak English, on the basis that the plain language is the plain language, is a sad joke. Of course, the Supreme Court cases on treaty interpretation do the same thing.
This proves once again that tribal reservation boundaries should only be litigated after the tribe has done its research. And it is unfortunate that so many of these cases arise in the context of criminal law where convicts or defendants are seeking to vacate a conviction on jurisdictional bases. Courts there are just looking for any out.
Turtle Talk 
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