Indian treaty rights

Washington COA Rejects Snoqualmoo Indian Treaty Rights to Defense to Elk Harvest

Matthew L.M. Fletcher

Here is the opinion in State v. Snyder:

Opinion

An excerpt:

In 1974, the United States District Court for the Western District of Washington, as affirmed by the United States Supreme Court, took continuing jurisdiction over fishing disputes arising from the Treaty of Point Elliot and other treaties. Since then, the federal courts have not only interpreted these treaties but continue to supervise their application. The supreme court has held that the lower federal court rulings in this matter bind the State, state courts, private individuals like the Snyders, and organizations like the Snoqualmoo Tribe. We see no reason why we should not follow this guidance in the case of hunting rights.

Briefs:

Guest Post: Bill Rastetter on Judge Enslen

Matthew L.M. Fletcher1 Comment

From long-time Grand Traverse Band counsel Bill Rastetter on the passing of Judge Enslen:

Writing this helps me to reflect upon not just Richard Enslen but also the two other Western District judges appointed by Jimmy Carter — all of whom made major rulings for Grand Traverse Band.  (There’s a story there, if I ever could find the time; I’d start the story by talking with Dean Robb who was in the group of lawyers picked by the two Democratic Senators who came up with a list of possible nominees, including “progressives” who never would be considered in the present climate.)  Those three were Richard Enslen, Douglas Hillman, and Benjamin Gibson.  In retrospect, each individual evidenced concern for the plight of the less advantaged, the powerless within our society; and GTB’s victories might not have occurred if they had not been on the bench.

Gibson left Michigan long before retirement age, but not before he granted GTB its first victory in the modern (restored) era: Leelanau Indians, Inc. and Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Department of Housing and Urban Development (W.D. Mich. File No. G 80-526): 502 F.Supp. 741 (W.D. Mich. 1980).

Hillman?  Well, there’s the major case [Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney for the Western District of Michigan, et al. (W.D. Mich. File No. 1:96-CV-466): 198 F.Supp.2d 920 (W.D. Mich. 2002), and 46 F.Supp.2d 689 (W.D. Mich. 1999), aff’d. 369 F.3d 960 (6th Cir. 2004)] which easily could have been resolved differently if another judge had been assigned that case.*

And Enslen.  Even before the “treaty-fishing” cases, he granted the judgment declaring that GTB controlled the Peshawbestown lands. [Grand Traverse Band of Ottawa and Chippewa Indians v. Leelanau County and Leelanau Indians, Inc. (W.D. Mich. File No. G 83-834)]  Attached is his unpublished opinion; it’s the only time my proposed findings and conclusions have been adopted verbatim (without even being retyped).  And he was assigned the GTB v. BIA case [Grand Traverse Band of Ottawa and Chippewa Indians v. Bureau of Indian Affairs, et al. (W.D. Mich. File No. G 85-382)], by which we (with his help/not so subtle messages to DOJ that he’d grant preliminary injunction for us if …) held them (the Reagan administration DOI political operatives) at bay until Buddy Raphael negotiated the “compromise” membership provisions.  Both the 1985 and 2000 consent decrees were the result of his commitment to ADR (and at various times he forcefully let lawyers for state/”sports” groups know that they really didn’t want to give him a chance to rule for the Tribes); likewise, he allowed the Tribes plenty of maneuvering room leading up to the 2007 “inland” consent decree.  Also his July 15, 1986 opinion/order in which he fashioned a remedy in GTB’s favor when the other COTFMA Tribes (BMIC & SSM) decided they could distribute 1985 CD funds by majority vote (subsequently there have been equal 1/3 and then 1/5 distributions of appropriated funds above each Tribe’s base).  Finally, of course, is GTB’s “access” case now in the textbooks: Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Department of Natural Resources, et al. (W.D. Mich. File No. 1:94-CV-707): 971 F.Supp. 282 (1995), aff’d. 141 F.3d 635 (6th Cir. 1998), cert. denied 454 U.S. 1124, 102 S.Ct. 971 (1998).

____________________

* Here is an article that appeared later in the New Yorker, written by his niece about his mother.  I was struck by the passage on the last page.  Here was a man who rose to the top of a prestigious G.R. law firm, probably relatively conservative albeit a Democrat in conservative G.R. and (I think) a labor lawyer, but I’m not aware of any indication that he was champion of the downtrodden.  Perhaps his mother instilled a sense of (in)justice, and when the opportunity presented itself he saved the day for the Indian Tribes. [United States v. Bay Mills Indian Community, et al. (W.D. Mich. File No. M 85-335): 692 F. Supp. 777 (W.D. Mich. 1988), vacated 727 F. Supp. 1110 (W.D. Mich. 1989)]  GTB gets no credit for Judge Hillman’s decision not to enjoin the Tribes’ casino gaming, yet it was our separate brief (and affidavits of Buddy Raphael and Barry Burtt) that argued Rule 65 equitable considerations weighed against the injunction requested by DOJ.

New Scholarship on Whaling Rights of the Makah

Matthew L.M. Fletcher

Thomas A. Martin has posted “Whaling Rights of the Makah” on SSRN.

Here is the (incredibly, far too long) abstract:

The Makah Indian Tribe (‘Makah’ or ‘Tribe’) is a federally recognized tribe located on the northwestern tip of the Olympic Peninsula, with a current population of 1,356. The Makah have hunted whales for over two millennia. Continue reading →

Seattle Weekly: Fish vs. Farms on the Skagit Delta

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

The Skagit delta farming system’s intricate rotation of some 80 vegetable and seed crops has been 150 years in the making. Dikes to keep the low-lying farmland dry and tide gates to prevent saltwater incursion into croplands are valuable to farmers, but not so much to Natives trying to revive salmon runs on the third largest American river on the contiguous West Coast.

The Swinomish Tribe’s priority is fish, not farms. And a century and a half of treaty law has put in their hands considerable power to press their case. In 1855, territorial Governor Isaac Stevens negotiated with western Washington tribes, trying to coax them into giving up millions of acres of land and retreat to reservations with prescribed boundaries. The Treaty of Point Elliott, signed by tribal leaders at a place later known as Mukilteo, included a guarantee of perpetual fishing rights. The treaty included this language: “The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all other citizens of the Territory, and of erecting temporary houses for the purpose of curing them, together with the privileges of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands.”

Indian Treaty Rights Showdown in Minnesota Possible

Matthew L.M. Fletcher1 Comment

From the Minneapolis Star-Tribune:

LEECH LAKE RESERVATION — The stage is set for an off-reservation treaty rights battle to begin Friday in Bemidji that ultimately could engulf much of northern Minnesota. Some Leech Lake Chippewa band members say they’ll set nets in Lake Bemidji the day before Minnesota’s walleye and northern pike seasons begin.

The Indians are gambling they’ll be busted for violating state angling rules, sparking a legal battle not only over northern Minnesota fish but also its wildlife and perhaps its timber, minerals and other resources.

Citing a treaty more than 150 years old, the Chippewa say most state fish and wildlife rules don’t apply to them across a large section of northern Minnesota — generally north of Interstate 94 — that they ceded to the federal government in 1855.

The stakes are high for everyone. The Leech Lake Chippewa, and those of the White Earth band about an hour away, risk backlashes that could cut into their casino profits and fracture relations with nonband members that in some instances are already tenuous.

And while the state has signaled it will hold fast to its contention that the bands have no off-reservation hunting, fishing and gathering rights, its costly defeat in the U.S. Supreme Court to the Mille Lacs and other Chippewa bands over similar treaty claims in 1999 hasn’t been forgotten.

“We need to exercise our rights or our sovereignty is just a thought,” said Renée Jones-Judkins, 52, of Cass Lake, who with her four sons will net Lake Bemidji on Friday. She was one of about 125 Leech Lake members (out of a tribal enrollment of 9,400) who attended a tribal treaty rights meeting Friday at the band’s Palace Casino in Cass Lake.

The White Earth and Leech Lake tribal councils aren’t sanctioning the protests. Instead, they will sponsor a public forum on Friday in Bemidji to inform nonband members about rights the Chippewa say they hold.

Continue reading →

Michigan Legislative Alert

Matthew L.M. Fletcher

From Great Lakes, Great Michigan:

STATE SENATE ‘PROTECTION’ PLAN WOULD DRAIN MICHIGAN’S RIVERS

---

A proposed Great Lakes protection package being considered in the State Senate would allow large water users to drain huge percentages of some of Michigan’s finest rivers and streams, according to an analysis by the Great Lakes, Great Michigan coalition.

“The Senate bills would rely heavily on a newly developed water withdrawal assessment tool, discounting input from local communities and other sources, including experts in the field,” said James Clift of the Michigan Environmental Council. Clift was part of an advisory council that worked for 18 months to develop the assessment tool. Meanwhile, a contrasting package of Great Lakes protection bills in the State House provides multiple safeguards for Michigan’s waters that reach beyond the assessment tool to apply reasonable use determinations and review of resource harm. Both packages include approval of the Great Lakes Compact, an eight-state agreement banning major diversions from the lakes.

The Au Sable River, one of America’s best trout streams, could see allowable reductions in stream flow of 22 percent in some stretches under the assessment tool. “That’s outrageous,” said Rusty Gates, owner of Gates Au Sable Lodge near Grayling and president of Anglers of the Au Sable. “There’s no way you can take that much water out of a stream and not destroy it. I’m sure there are plenty of people and corporations who’d like to get their hands on the Au Sable’s spring-fed water, but the State Legislature shouldn’t be helping them do it.”

Stretches of other streams could see flow reductions in excess of 40 percent. “The Senate version of this legislation appears to recognize the value of thriving fish species in our coldwater streams, but relies heavily on the predictions of a newly created and imperfect modeling tool which, for example, would allow approximately a quarter to a third of the summer low flow of a trout stream to be withdrawn,” said Dr. Bryan Burroughs, executive director of the Michigan Council of Trout Unlimited. “Certainly this falls short of the intended spirit of the legislation, which is supposed to assure that future water withdrawals do not have an adverse impact on our natural resources. We expect that these shortfalls will be addressed if the bills are to receive widespread support.”

The Senate Legislation, relying on the assessment tool, would allow stream flow reductions of the following percentage in certain stretches of these rivers and streams:

  • 42 percent, Betsie River
  • 22 percent, Pere Marquette River
  • 25 percent, Sturgeon River
  • 22 and 16 percent, Au Sable River
  • 22 percent, Manistee River
  • 25 percent, Boardman River
  • 16 percent, Pigeon River
  • 25 percent, Jordan River

“The numbers prove that the assessment tool should be used exactly for what it was intended – as a tool, not the sole means of determining whether water users can responsibly pump huge quantities of water from the ground,” said Clift. “Balanced legislation, like that proposed under the House plan, puts multiple safeguards in place for Michigan’s water.”

For more information, visit the Great Lakes, Great Michigan website at www.greatlakesgreatmichigan.org