treaty rights – Page 12

ALEXANDER, J.—The primary issue presented by this case is whether the State of Washington has jurisdiction over members of Indian tribes who sell unstamped cigarettes without a license at a store that is located on trust allotment land that is outside the boundaries of an Indian reservation. We conclude that the State does possess jurisdiction in such cases, and, thus, we affirm the trial court’s denial of the motion of the defendants herein to dismiss the charges against them.

Update in Yakama v. Holder: Federal Court Orders US to Comply with Discovery Requests

September 13, 2011September 12, 2011Matthew L.M. Fletcher2 Comments

An excerpt from the order:

[T]he waiver of sovereign immunity [under the APA] applies to all actions seeking non-monetary relief that are cognizable before the federal courts, including actions brought pursuant to the APA and other actions which provide their own private right of action. Yakama seeks non-monetary relief in this case. Accordingly, any claims by Yakama, whether brought independent of or through the APA, may not be barred by sovereign immunity (citations omitted).

The Court agrees with Yakama’s argument that discovery as to the policies that govern the Federal Defendants’ actions with the Yakama, particularly with regard to notification and limitations on actions while on tribal lands, and discovery as to the Federal Defendants’ decision not to notify the Yakama before entering onto tribal lands, as well as discovery regarding the actual entry onto tribal lands is needed to establish whether the Court has jurisdiction.

Here are the new materials in Yakama Indian Nation v. Holder (E.D. Wash.):

ORDER ON MOTIONS TO STAY DISCOVERY AND MOTIONS FOR EXTENSION

Memorandum in Support of United States’ Motion to dismiss

Yakama Nation’s Memorandum in Opposition to Federal Motion to Dismiss

United States’ Memorandum in Support of Motion for Protective Order

Memorandum in Opposition to Motion for Protective Order

Reply on United States’ Motion for Protective Order

Here is the Nation’s amended complaint.

Treaty Rights and the Cherokee Freedmen Decision

August 25, 2011Matthew L.M. Fletcher1 Comment

This isn’t a post on the merits of the Freedmen case, but instead a rumination about the import of U.S.–tribal treaty rights in tribal courts. Generally, do treaty rights have legal import in tribal court?

My reading of the Nash case (here) is that anyone claiming to assert treaty rights against an Indian tribe who was a party to the treaty may be foreclosed from bringing those claims without the presence of the United States (the other party to the treaty) as a party to the litigation. If that reading has broad implications for Indian treaties, then no treaty right could effectively be litigated in tribal court without the presence of the United States. An odd result, to be sure.

This isn’t a purely academic question. A few years back, the Ninth Circuit wondered why it was still deciding treaty rights subproceedings in United States v. Washington that don’t involve either the United States or Washington, or really any of the underlying issues about the treaty right. Many of the cases are intertribal conflicts. There may be an intertribal court for the Puget Sound treaty tribes someday, all without the presence of the United States. And properly so.

This all suggests the United States doesn’t need to be a party to treaty rights litigation in every case.

Continue reading →

Jensen Bros. Appeal Dismissed for Failure to File on Time

August 22, 2011August 21, 2011Matthew L.M. Fletcher

Here is the article, via Pechanga.

Former Sen. Mark Hatfield (R. Ore.) Walks On — Was a Member of the American Indian Policy Review Commission

August 8, 2011Matthew L.M. Fletcher

Here is the WaPo article with his extended biography.

And a link to the Willamette University library (named after Sen. Hatfield) bio, which says he was a defender of Indian treaty rights. In this excerpt from Ronald Satz’ monograph on the Chippewa treaty rights fight in Wisconsin, Rep. Hatfield is quoted as labeling the backlash against treaty rights as “racism in all its ugly manifestations.” He also helped to negotiate the Umatilla Basin Project (here).

He introduced legislation to restore the Confederated Tribes of the Siletz Indians of Oregon (here).

Finally, the Hatfield School of Government at Portland State is home to the Institute for Tribal Government.

Peter Erlinder on Minnesota v. Mille Lacs Band

May 31, 2011Matthew L.M. Fletcher1 Comment

Peter Erlinder has posted a great paper, “State of Minnesota v. Mille Lacs Band of Chippewa Indians, Ten Years On,” on SSRN. Here is the abstract:

In State of Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) the Supreme Court unanimously held that, by guaranteeing Anishinabe (Chippewa) rights to hunt, fish and gather, U.S. treaty negotiators severed the right to use the land from formal title to the land in an 1837 (and 1854) Treaty. The Mille Lacs majority and dissent differed only as to whether Treaty-guaranteed usufructuary property rights had been abrogated by subsequent events. The majority held the usufructuary rights had not been abrogated.

Off-Reservation Anishinabe Usufructuary Property Rights in Northern Minnesota

With respect to Minnesota Territory, not ceded in 1837 and 1854 Treaties, two major questions remain after the Mille Lacs decision: (a) did the Anishinabe have treaty-guaranteed usufructuary rights outside the 1837 and 1854 ceded territory; and (b) if so, are treaty-guaranteed usufructuary rights outside the 1837 and 1854 ceded territory, are also valid today? This article answers these questions by elaborating Minnesota treaty history to include usufructuary property rights guaranteed in Treaties of 1795, 1825, 1826, as well as, a relatively unrecognized clause of the 1854 Treaty, all of which guarantee some form of usufructuary property rights outside the 1837 and 1854 ceded territory. The article concludes that these treaties, largely ignored by the courts until now, are likely to be sources of as yet unrecognized Anishinabe usufructuary property rights in the 21st Century.

Modern Usufructuary Rights and Natural Resource Co-Management

Further, because usufructuary property rights include “the right to modest living,” environmental protection to maintain the long-term value of these property rights will have significant long term off-reservation land-use.

ICT Article on Yakama Suit against Feds for Breach of Treaty-Required Consultation in FBI “Invasion”

May 28, 2011May 27, 2011Matthew L.M. Fletcher

Here is the article. An excerpt:

During a visit to Washington this week, the chairman of the Confederated Tribes and Bands of the Yakama Nation and members of his delegation will go to the National Archives to view the original 1855 Treaty with the Yakama. It will be a poignant experience for the leader of the Yakama people who live along the Columbia River and the central plateau of Washington state.

The Treaty, which was signed at Camp Stevens, Walla-Walla Valley in Washington State on June 9, 1855, is at the heart of a lawsuit the nation filed in federal court at the end of April. The lawsuit states that the nation’s treaty rights and other laws were violated when a horde of dozens of law enforcement officers from local and federal agencies and two states on the other side of the country – without consultation or notification – invaded the Yakama reservation with their weapons drawn at the crack of dawn on a cold winter morning in February to serve a questionable arrest warrant on a Yakama businessman for alleged cigarette tax violations in another state.

The Yakama Treaty says the federal government set aside lands “for the exclusive use and benefit” of the Yakama Indians and promised not to allow “any white man, excepting those in the employment of the Indian Department” to live on the reservation. The Treaty further guarantees the Yakama people that U.S. citizens would not “enter upon” their lands.

One Indian law expert compared the federal government’s apparent lack of trust toward the Yakama Nation to its lack of trust in raiding bin Laden’s house without consultation with the Pakistani government.

Yakama v. Holder/FBI — Amended Complaint

March 31, 2011March 30, 2011Matthew L.M. Fletcher1 Comment

Here: FILED FIRST AMENDED COMPLAINT – YAKAMA v HOLDER

The original complaint is here.