Intriguing case, here is the complaint:
treaty rights
Catherine O’Neill on Pollution in the Portland Harbor and Treaty Rights
From CPRBlog, h/t to Seattle Law’s Cases and Controversies Blog:
[An excerpt]
EPA is to be commended for declining to let the polluters call the shots at the Portland Harbor site. Their response to the LWG risk assessment sets an appropriate tone. And it gives reason for hope that the agency will continue to take seriously its responsibilities to oversee this and other cleanups.
There is, however, a long way to go in the process and many issues yet to be addressed. For example, there is the point – not directly addressed in EPA’s comments – that it is not only contemporary tribal consumption rates that are relevant to cleanup at the Portland Harbor site but also historical tribal consumption rates and practices. The fishing tribes in the Columbia River Basin and elsewhere have rights – secured, in many instances, by treaty – to take and eat fish as they did prior to the arrival of European settlers to this region. These rights have not always been honored by the United States and its citizens, however. As a result, contemporary tribal fish consumption rates can be said to be artificially “suppressed” from historical rates – due to denial of access to fishing places; inundation of tribal fishing places; tribal members being arrested and their gear confiscated; and depletion and contamination of the fishery resource, often at the hands of non-Indians. Cleanup at places such as Portland Harbor, where tribes and their rights are affected, ought not be gauged against what tribal members today consume, but by what tribal members would consume, were the fishery resource not depleted and contaminated, and were they able to exercise fully their rights to take and eat fish.
The United States today has an obligation to ensure that tribes’ fishing rights are honored. Among other things, the federal government has the duty to see that these rights are not undermined by environmental degradation. A right to take and eat fish is obviously made hollow if the fish are permitted to be too contaminated for human consumption. As it seeks now to clean up that contamination, the United States, through its EPA, needs to keep its treaty promises in mind. This means that EPA needs to redouble its efforts to work with the tribes, on a government-to-government basis, to determine the relevant measures of risk and goals for remediation at the Portland Harbor site. Ultimately, this means that EPA needs to assure restoration that will support tribes’ rights to fish as they once did – and as they seek to do in the future.
Suquamish Tribe Files Cert Petition in U.S. v. Washington Dispute
Here is the petition in Suquamish Tribe v. Upper Skagit Tribe: Suquamish Cert Petition.
Here is the question presented:
Whether a court implementing an unambiguous court order is bound to apply that order according to its plain terms, or whether the court should instead determine whether the judge who initially issued the order “intended something other than its apparent meaning,” as the Ninth Circuit held in this case.
Lower court materials here.
Saginaw Chippewa Briefs Struck in Reservation Boundary Case as Not Being Timely
Here is the order: DCT Order Striking Sag Chip Briefs
The remaining materials are here.
Cross-Motions for Summary Judgment in Saginaw Chippewa Reservation Boundaries Case
Here it comes — the case is captioned Saginaw Chippewa Indian Tribe v. Granholm (E.D. Mich.):
Federal Motion for Partial Summary Judgment
Michigan Motion for Partial Summary Judgment
Federal Response to State Motion for Summary Judgment
Michigan Response to Federal Motion for Summary Judgment
SCIT Response to Federal Motion
Previous posts:
Materials on the Expert Witnesses
Materials on the “Rosebud Sioux” defenses
Saginaw Valley St. Univ. Barstow Lecture on Indian Law — April 1
Barstow Lecturer to Explain History of Indian Land Law
Saginaw Valley State University will host a lecture by American Indian legal expert Matthew Fletcher Thursday, April 1 at 7:30 p.m. in the Rhea Miller Recital Hall. In his talk, he will explain how a 2007 decree finally ended a 170-year-old dispute regarding Michigan Indians’ land rights. The lecture is part of SVSU’s Barstow Humanities Seminar series.
Fletcher says the delay owes its origins to miscommunication. In 1836, five Michigan Indian tribes entered into a treaty with the state and federal governments over “inland rights” – a treaty in which the Indians ceded their land in exchange for defined areas where they could fish, hunt and gather. The problem was that two of the treaty’s key words – “occupancy” and “settlement” – had vastly different meanings in the local Indian language. Relying on their understanding, the Indians agreed to the treaty.
Asian Carp Op/Ed from GTB Chair Derek Bailey
From the Traverse City Record-Eagle:
Three decades ago many thought that the Great Lakes fisheries resources would be ruined by American Indian tribes exercising “treaty-fishing” rights. After the federal courts confirmed these treaty-reserved rights, the tribes demonstrated their primary concern is protection of the Great Lakes fisheries.
Ironically, these “treaty-fishing” rights now might prove crucial in protecting fisheries resources for all of Michigan’s citizens against the Asian carp invasion.
The United States Supreme Court has denied Michigan’s request for an injunction closing the shipping locks outside of Chicago to prevent any further migration of Asian carp into the Great Lakes. In the midst of the competing claims debating the economic losses of closing shipping to the Mississippi River system compared to potential harm to Great Lakes fisheries, all parties — Attorney General Cox, Gov. Granholm, the Army Corps of Engineers and other federal agencies — agree that the damage to the Great Lakes fisheries will be profound.
It has been almost six years since the U.S. Fish and Wildlife Service estimated that “Asian carp could have a devastating effect on the Great Lakes ecosystem and a significant impact on the $7 billion fishery.” During this time the Army Corps of Engineers failed to act promptly, in effect fiddling while Rome burned. To the extent the Army Corps is responsible for the impending disaster, the tribes may be better situated than the state to challenge the federal government.
Ninth Circuit Panel Issues New Opinion in Upper Skagit v. Washington
Here is the new opinion, granting rehearing and denying the en banc motion as moot.
The earlier opinion and materials are here.
Cert Petition in Roy v. Minnesota — Is There a Treaty Right to Possess Firearms?
Interesting arguments in this one — Roy v Minnesota Cert Petition
Questions presented (check out no. 5 — a treaty right to possess firearms?):
1. DOES THE STATE OF MINNESOTA LACK SUBJECT-MATTER JURISDICTION OVER THE PRESENT CONTROVERSY BECAUSE POSSESSION OF FIREARMS IS “CIVIL-REGULATORY” IN THIS PARTICULAR CASE?
2. DOES THE PETITIONER HAVE A RIGHT TO POSSESS FIREARMS THAT IS PROTECTED AS A RESERVED RIGHT IN THE 1854 AND 1855 TREATIES WITH THE CHIPPEWA?
3. DID THE MINNESOTA APPELLATE COURT IMPROPERTLY DENY REVIEWOF THIS MATTER BECAUSE THE MINNESOTA COURT OF APPEALS FAILED TO ADDRESS OR REVIEW THE RELEVANT AND APPLICABLE 1854 AND 1855 TRIATIES WITH THE CHIPPEWA?
4. DO PETITIONER’S TREATY RIGHTS BELONG TO HIM AS AN INDIVIDUAL TRIBAL AS WELL AS A TRIBAL AND BAND MEMBER OF THE MINNESOTA CHIPPEWA TRIBE, AS WELL AS COLLECTIVELY TO THE BANDS THAT ARE SIGNATORY TO THE TREATIES OF 1854 AND 1855?
5. DOES THE PETITIONER HAVE A TREATY RIGHT TO POSSESS FIREARMS AS A PRE-EXISTING RIGHT IN LIGHT OF THIS COURT’S 2008 DECISION IN UNITED STATES V. HELLER (2008 WL 2520816)?
Ninth Circuit to Hear Samish Tribe’s Claim to Reenter U.S. v. Washington En Banc
In an unusual procedure, after oral argument before a three-judge panel including Judge Canby, the Ninth Circuit decided to hear the United States v. Washington subproceeding involving the Samish Indian Tribe’s treaty claims en banc.
Samish Indian Tribe Opening Brief
Turtle Talk 
You must be logged in to post a comment.