Eighth Circuit Holds Lacey Act Does Not Bar Minnesota Chippewa Tribe Members from Fishing on Leech Lake Reservation

Here is the opinion in United States v. Brown.

An excerpt:

Appellees Michael Brown, Jerry Reyes, Marc Lyons, and Frederick Tibbetts were indicted under the Lacey Act which makes it unlawful to “sell . . . any fish . . . taken, possessed, transported, or sold in violation of . . . any Indian tribal law.” 16 U.S.C. § 3372(a)(1). The indictments alleged that appellees had netted fish for commercial purposes within the boundaries of the Leech Lake Reservation in violation of the Leech Lake Conservation Code, then sold the fish. Appellees are Chippewa Indians, and they moved to dismiss the indictments on the ground that their prosecution violates fishing rights reserved under the 1837 Treaty between the United States and the Chippewa. The district court granted the motions to dismiss. The 1 United States appeals, arguing that its application of the Lacey Act did not infringe on appellees’ fishing rights. We affirm.

Briefs:

US Opening Brief

Appellees Brief

US Reply Brief

Lower court materials here

Wilder Research Study, Projected Population Numbers for Minnesota Chippewa Tribe Based on Varied Enrollment Criteria

In 2012-2013, Minnesota Chippewa Tribe (MCT) contracted with Wilder Research to conduct a study and produce population projections for MCT as a whole as well as for the six member Bands: Bois Forte, Fond du Lac, Grand Portage, Leech Lake, Mille Lacs and White Earth. In 2013-2014, MCT again contracted with Wilder Research to update the existing projections and to add an additional alternative enrollment criteria scenerio to the study.

The study looks at projected population numbers based on three possible enrollment criteria, all different from the current criteria in use: 1/4 Ojibwe blood including any U.S. and Canadian Ojibwe tribes, 1/8 MCT blood, and lineal descent. The White Earth Nation posted a summary of the findings of the study here.

The complete report can be found here.

Interesting to review for anyone discussing enrollment and possible changes to membership criteria.

Minnesota COA Decision Critical of Minn. SCT Precedent on Indian Country Jurisdiction, But Complies

Here is the opinion in State v. Saros:

SAROS JAY CT APP DECISION 7.13

The issue involves state civil regulatory jurisdiction (in this case, traffic offenses) over on-reservation Indians who are members of the Minnesota Chippewa Tribe where a member of one band (say White Earth) is cited on the reservation of another band (say Leech Lake). The Minnesota Supreme Court in State v. Davis held that the White Earth member may be civilly cited by the state because he/she is not on his/her own reservation.

The Saros court writes:

We acknowledge, however, that the restriction on inter-reservation prosecution makes little sense. It is undisputed that the MCT is a federally recognized tribe, and that the six bands that make up the MCT are not individual federally recognized tribes, but are “component reservations.” Davis, 773 N.W.2d at 75 (Page, J., dissenting) (citing Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 73 Fed. Reg. 18,553, 18,555 (Apr. 4, 2008)). As Gary Frazier, the executive director of the MCT testified, it is impossible to be a member of one of the individual bands but not a member of the MCT. Nonetheless, the Davis decision holds that the  differentiation between bands is dispositive as to whether tribal court has jurisdiction over the matter. In other words, under Davis, despite the fact that appellant is an enrolled member of the MCT, resides on Leech Lake, and the offenses occurred there, the tribe’s interest in self-governance is not applicable to his case because his reservation of registration is White Earth. This conclusion seems to conflict with Stone, which recognizes that “Indian tribes retain ‘attributes of sovereignty over both their members and their territory.’” 572 N.W.2d at 728 (quoting Cabazon Band of Mission Indians, 480 U.S. at 207, 107 S. Ct. at 1087).

Split D.C. Circuit Grants Attorney Fees to Tribal Intervenors in EPA Mercury Rule Case (New Jersey v. EPA)

Here is the opinion. And the briefs:

Tribal Motion for Atty Fees

EPA Opposition

Tribal Reply

The underlying merits decision from the D.C. Circuit vacating a Bush-era EPA mercury rule is here. BLT coverage is here.

Here are the intervening tribes and organizations:

Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Jamestown S’Klallam Tribe, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Lower Elwha Klallam Tribe, Lummi Nation, Minnesota Chippewa Tribe, National Congress of American Indians, Nisqually Tribe, and Swinomish Indian Tribe Community

California Appellate Court Orders ICWA Case Transferred to Bois Forte Chippewa

Here is the opinion in In re Jack C., reversing the trial court.

An excerpt:

In In re Jack C., III, D057034, the order terminating parental rights is reversed, and the matter is remanded to the trial court with directions to transfer jurisdiction to the Bois Forte Band of the Minnesota Chippewa, subject to the Band’s right of declination.  If the Band declines jurisdiction, the juvenile court shall then reinstate the order terminating parental rights.  (Cf. In re Francisco W. (2006) 139 Cal.App.4th 695, 706 [limited reversal disposition in defective ICWA notice appeals is in keeping with the public policy of our child dependency scheme, which favors prompt resolution of cases].)

Minn. Supreme Court Affirms Limited Worker’s Comp. Jurisdiction over Indian Country

A divided Minnesota Supreme Court (4-3, at least on the jurisdiction question) held in Swenson v. Nickaboine that the state worker’s comp statute applies to an on-reservation, Indian-owned business where the worker in question was a non-Indian.

Here is an excerpt from the dissent:

The majority holds that Minnesota had subject matter jurisdiction based on 40 U.S.C. § 3172.  But we held in Tibbetts v. Leech Lake Reservation Business Committee, 397 N.W.2d 883, 888 (Minn. 1986), that in section 3172, Congress did not subject the tribe to jurisdiction in Minnesota courts.  The majority distinguishes Tibbetts because that case involved a workers‟ compensation claim brought by a tribal member against a tribe; whereas this case involves an injured worker who is not a tribal member and an employer that is owned by a tribal member but is not a tribal corporation.  But holding that Congress did not waive the sovereign immunity of the tribe in section 3172, as we did in Tibbetts, does not provide a basis for the majority‟s conclusion that Congress, in section 3172, vested subject matter jurisdiction in the state to enforce its workers‟ compensation laws.  In my view, our discussion in  Tibbetts supports the opposite result on the jurisdictional question.

Minnesota Court of Appeals Holds State Court Has No Civil Confinement Authority over Minnesota Chippewa Members

Here is the opinion in In the Matter of the Civil Confinement of Johnson.

The court’s syllabus:

The state does not have jurisdiction pursuant to Public Law 280 to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the Minnesota Commitment and Treatment Act.  But in the absence of express congressional consent, the state does have jurisdiction to civilly commit an enrolled member of a federally recognized Indian tribe as a sexually dangerous person under the commitment and treatment act where, as here, federal law does not preempt state jurisdiction and exceptional circumstances exist.

Minnesota COA Reverses Lower Court on Tribal Jurisdiction Issue

Baffles me why this is unpublished….

Here is the opinion in Nason v. 1991 Buick.

The tribal interest in self-governance rests with the Mille Lacs Band of Ojibwe Indians-both the incident leading to the forfeiture proceeding and the seizure of respondent’s vehicle took place on the Mille Lacs Reservation. Because respondent is enrolled in the Fond du Lac Band, the Mille Lacs Band’s interest in self-governance is not as strong over respondent. We reject respondent’s argument that we should consider the Minnesota Chippewa Tribe as a whole when assessing the strength of the interest in self-governance; that argument was considered and rejected by the supreme court in Davis, and we find nothing to distinguish respondent’s case from Davis.

Based on the state’s strong interest of promoting safety on state roads and the weaker tribal interest in self-governance present in this case, we conclude that a forfeiture proceeding against respondent in state court is not preempted by federal or tribal interests. We therefore conclude that the state has subject-matter jurisdiction to hear the forfeiture action involving respondent’s vehicle.

Minnesota Supreme Court Affirms State Jurisdiction over Tribal Traffic Offenses

…over a dissent from Justice Alan Page. The case is State v. Davis. An excerpt:

State court has subject-matter jurisdiction over appellant‟s traffic violations because Congress has not preempted Minnesota from enforcing its traffic laws against appellant in state court.

And from the dissent:

The MCT is the governing unit federally recognized by the Bureau of Indian Affairs, and the individual bands such as the Leech Lake Band and the Mille Lacs Band are merely “component reservations” of the MCT. Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 73 Fed. Reg. 18,553, 18,555 (Apr. 4, 2008). Yet the court concludes with little explanation that the MCT has no tribal interest in self-governance. Nor does the court cite any authority for the distinction it makes between Indian tribes and Indian bands. I would also note that there is no indication in this record that the MCT has no interest in self-governance or has chosen to relinquish its interest in self-governance. Absent a showing that the MCT has chosen to relinquish its interest in self-governance, it is presumptuous for us to impose such a choice on the MCT. Because we held in Stone that no exceptional circumstances exist requiring a preemption analysis for tribal members who are alleged to have been speeding on tribal territory and because Davis is an MCT member whose alleged speeding offense occurred within the MCT‟s territory, I conclude that the state has no jurisdiction over Davis.

Minnesota Court of Appeals Affirms State Criminal Jurisdiction over Tribal Members

The Minnesota Court of Appeals affirmed the conviction of a tribal member (Minnesota Chippewa Tribe, Fond du Lac Band, Leech Lake resident) for firearms violations, holding that the court had jurisdiction under PL 280 in State v. Roy (opinion). Here is the court’s syllabus:

Under Public Law 280, Minnesota has jurisdiction to prosecute a tribal member for a violation of the felon-in-possession statute, Minn.Stat. § 609.165 (2004), because: (a) the inability to possess a firearm under Minn.Stat. § 609.165 is the result of the individual’s criminal conduct; (b) the prosecution does not affect the tribe’s treaty hunting rights; and (c) Minn.Stat. § 609.165 is criminal/prohibitory.