As usual, Friday is the most exciting time of the week for Indian law events.
Here are the materials in the most recent proceedings in United States v. Michigan, an effort to enjoin State v. Jensen in Delta County court (John Petoskey doing the heavy lifting in state court for Jensen and Bruce Greene in federal court for the Sault Tribe):
Doc. No. 1819 (Motion for Relief)
Doc. No. 1820 Memo in Support of Motion for Relief
Doc. No. 1820-3 (Certif of Compliance with 2000 Consent Decree
From the Daily Press, via Pechanga:
MANISTIQUE – The tribal judge who sentenced three members of the Sault Ste. Marie Chippewa Tribe of Indians for violating their fishing rights, described Friday’s hearing as a “sad day” for the tribe.
Andrew, Kevin and John Schwartz, all brothers from Rapid River, were found in violation of the majority of 105 citations issued against them in connection with an illegal commercial fishing operation in early 2009. The Department of Natural Resources investigated the illegal dealings.
On Friday, the Honorable Chief Judge Jocelyn K. Fabry revoked each of the three defendants’ fishing privileges and ordered each pay thousands of dollars in fines, costs, and restitution. In her concluding statements, the judge commented on the damage done to the environment as well as the tribe’s reputation.
“The effect on the natural resources of the area may not ever be determined,” Fabry said, describing where the violations occurred as one of the best walleye fishing areas in the state.
“This is a sad day for the tribe,” she added. “It gives tribal members a black eye in the community.”
Following the sentencing at the tribal center in Manistique, Special Prosecutor Monica Lubiarz-Quigley, representing the tribe, agreed with the judge.
“I think the judge’s comments were very, very appropriate,” Lubiarz-Quigley said outside the court. “Her comments reflect the majority of the feelings of the tribe and the board. I think she was absolutely right.”
Here is the opinion in State v. Jim.
An excerpt:
Lester R. Jim, an enrolled member of the Yakama Nation, appeals a superior court decision reversing the district court’s dismissal of his fishing citations for lack of jurisdiction over the Maryhill Treaty Fishing Access Site (MTFAS). This court granted Mr. Jim discretionary review. We reverse the superior court because the State of Washington lacks jurisdiction to cite Mr. Jim at the MTFAS.
From the Escanaba Daily Press vie Pechanga:
ESCANABA – Three members of the Sault Ste. Marie Tribe of Chippewa Indians, accused of illegal commercial fishing in Little Bay de Noc in 2009, will appear in tribal court this month, officials said.
Five tribal members and one Delta County man were arrested in early 2009 for allegedly illegally catching and selling walleye from Little Bay de Noc. The tribe has legal jurisdiction over the five tribal members, while Delta County has legal jurisdiction over the non-tribal member.
In March of this year, the tribe announced three of the accused tribal members were cited with approximately 100 civil infractions including illegally setting nets and selling thousands of pounds of walleye for profit.
The fish were allegedly being sold through a tribal commercial fishing operation consisting of two tribal members and a state-licensed wholesaler. Investigation continues regarding these three individuals who have not yet been officially charged.
According to Brenda Browning, a clerk at the tribal court in Sault Ste. Marie, the citations have been issued against the three tribal members accused of illegally poaching and selling walleye. Their pretrial hearings are scheduled in tribal court in mid-May. The court is not releasing their names because the case is in the pretrial phase, Browning explained Friday.
Browning also said these three cases are considered civil matters, which are being handled by Special Prosecutor Monica Lubiarz-Quigley.
When contacted Monday, Lubiarz-Quigley referred the Daily Press to the tribe’s general counselor, Thomas Dorwin. Dorwin did not return a call from the newspaper prior to press time.
The Daily Press also left a message with the tribe’s attorney, Aaron Schlehuber, on Monday.
Interesting case. Here is the opinion in State of Washington v. Guidry, a split court (2-1). Here are links to the briefs:
An excerpt:
Larry Guidry appeals his convictions for first degree fish dealing without a license, first degree fish trafficking without a license, four counts of participation of a non-Indian in an Indian fishery for commercial purposes, and four counts of first degree commercial fishing without a license. He argues that the trial court should have dismissed the charges against him because he lawfully fished under the Nisqually Tribal Code. He also argues that insufficient evidence supports his convictions for fish dealing and fish trafficking and that the trial court erred in imposing restitution. We reverse his convictions, vacate the restitution order, and remand.
Here is the Ninth Circuit’s (crabby) opinion in Upper Skagit Tribe v. Washington.
The briefs:
Port Gamble and Jamestown S’Klallam Tribes Brief
The key holding:
We conclude that it is at least as likely as not that Judge Boldt meant what he said; the Suquamish treaty territory “include[s] the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River.” This broad, unlimited fishery is what Dr. Lane described in her report and testimony. Dr. Lane stated that marine fisheries “are far more difficult to delimit than fresh waters.” She repeatedly underlined that her report did not, and could not, list all of the usual and accustomed fishing locations of the Suquamish. She noted that the Suquamish had more limited resources in their home area than most tribes, and thus had to travel more extensively to fish.
Dr. Lane said that she had no documentary evidence that the Suquamish fished in the San Juan Islands, but nonetheless found it likely that they did so. Judge Boldt agreed, deciding in the absence of any specific evidence that the Haro and Rosario Straits were part of the Suquamish traditional fishing grounds. This demonstrates a lack of specific evidence would not have precluded Judge Boldt from including Skagit Bay and Saratoga Passage in Suquamish’s territory.
And why we think the court is being crabby:
Adam D. DeWeese, Neil E. Kmiecik, Esteban D. Chiriboga, and Jeffery A. Foran have published “Efficacy of Risk-Based, Culturally Sensitive Ogaa (Walleye) Consumption Advice for Anishinaabe Tribal Members in the Great Lakes Region.(Report)” in Risk Analysis, May 2009 (GLIFWC Report on Walleye Advisories). Here is the abstract:
The Great Lakes Indian Fish and Wildlife Commission (GLIFWC) has produced Ogaa (walleye-Sander vitreus) consumption advisories since 1996 for Anishinaabe from GLIFWC member tribes in the 1837 and 1842 ceded territories of Wisconsin. GLIFWC’s advisory maps were revised in 2005 to address cultural sensitivities (to protect tribal lifeways), to utilize recent mercury exposure information, and to incorporate changes in advisory levels for methyl mercury. Lake-specific, risk-based, culturally sensitive consumption advice was provided on color-coded maps for two groups: children under age 15 years and females of childbearing age, and males 15 years and older and females beyond childbearing age. The maps were distributed to, and a behavioral intervention program developed for, the six GLIFWC member tribes in Wisconsin as well as member tribes in Minnesota and the 1842 ceded territory of Michigan. Tribal fish harvesters, tribal health care providers, women of childbearing age or with young children, tribal leaders, elders, and children were targeted specifically for the behavioral intervention. The efficacy of the behavioral intervention was assessed using surveys of 275 tribal fish harvesters from Wisconsin, 139 tribal harvesters from Michigan and Minnesota, and 156 Wisconsin women of childbearing age. Significant increases in the percentage of survey participants who indicated awareness of advisory maps occurred among Wisconsin harvesters (increase from 60% to 77%), Michigan and Minnesota harvesters (29% to 51%), and women of childbearing age in Wisconsin (40% to 87%). A significant increase in preference for smaller Ogaa occurred among tribal harvesters in Wisconsin (41% to 72%) and tribal harvesters in Michigan and Minnesota (49% to 71%), although not among women of childbearing age. The GLIFWC map-based advisory program did not adversely affect tribal harvest of Ogaa, which increased from 63,000 to 88,000 fish in the three states after the intervention.
Michael Blumm and Jane Steadman have posted “Indian Treaty Fishing Rights and Habitat Protection: The Martinez Decision Supplies a Resounding Judicial Reaffirmation” on SSRN. Here is the abstract:
In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a “servitude upon every piece of land.” We have described this servitude as a “piscary profit,” a familiar property right at common law that must be exercised free from unreasonable interference. While the universally shared assumption at the time the treaties were signed was that the salmon resource was inexhaustible, in fact the salmon have been in precipitous decline since the late-1800s. This scarcity bred conflicts, which have forced the tribes to enforce their treaty fishing right in the courts for over a century.
The federal district court held that the two tribes, which had disputed fishing rights over places along the Columbia River, had to share. aug-2008-dct-order
From the opinion:
The dispute is part of a longstanding case brought by the United States to define certain Indian tribes’ treaty rights to take fish at all usual and accustomed places along the Columbia River and its tributaries. Colville sought to intervene in the case on two occasions, once in 1989 and once in 1999, but its requests were denied. See United States v. Oregon, 29 F.3d 481 (9th Cir. 1994) (“Oregon I”). In 2002, instead of moving to intervene yet again, the Colville Wenatchi began fishing at Icicle Creek.
On August 18, 2003, I granted Yakama’s motion for injunctive relief, enjoining Colville and its constituent tribes from fishing at Icicle Creek and holding that Colville was precluded by res judicata from asserting the arguments it raised in opposition to Yakama’s motion. Colville appealed that holding, and the Ninth Circuit reversed and remanded the case “for trial on the merits.” United States v. State of Oregon, 470 F.3d 809, 818 (9th Cir. 2006) (“Oregon II”). Upon remand from the Ninth Circuit, the matter was tried to the court on May 6, 7 and 8, 2008. Upon conclusion of the trial, Yakama, Colville, the United States, and the State of Washington submitted post-trial briefing.
For the reasons stated below, I find the Wenatchi and Yakama have joint fishing rights to fish at the Wenatshapam Fishery, which is located at the confluence of the Wenatchee River and Icicle Creek. Due to the alteration of this site by white settlement, and the fact that the evidence demonstrates fishing on Icicle Creek, in addition to fishing on the Wenatchee River, the nearest location for the Wenatshapam Fishery is the Leavenworth National Fish Hatchery on Icicle Creek.
Yakama’s quest for treaty rights in United States v. Oregon suffered another setback in federal district court. Here are the materials:
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