Here is the Sixth Circuit’s opinion in Ottawa Tribe of Oklahoma v. Logan — Ottawa Tribe of Oklahoma v Ohio DNR.
The lower court had made its primary holding that the Ottawa Tribe’s treaty claims were barred by laches, as in Sherrill and Cayuga. But consistent with an amicus brief filed by NCAI and Michigan tribes, the Court declined to apply laches, instead relying upon an interpretation of the relevant treaties.
Here is the opinion in United States v. Fox. Fox is Navajo.
An excerpt:
Dionysius Fox, a member of the Navajo Nation, was arrested on the Navajo Reservation on an unrelated charge and found in possession of a shotgun and a rifle. Mr. Fox is a convicted felon, subject to the provisions of 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by those previously adjudged guilty of felonies. Although he acknowledges that he is prohibited from possessing firearms beyond Navajo Reservation land, Mr. Fox asserts that he is entitled to possess guns for the limited purpose of hunting on the Navajo Reservation, pursuant to an 1868 Treaty between the United States and the Navajo Nation. We conclude, however, that Mr. Fox has relinquished any treaty right to use firearms for hunting purposes, and therefore affirm the judgment of the district court.
This case is interesting in part because another Tenth Circuit judge (see concurring opinion in U.S. v. McCane) raised a question about whether the Supreme Court’s recent Second Amendment decision D.C. v. Heller actually may make the federal statute in question in Fox unconstitutional.
Here are the briefs:
From News from Indian Country:
Back in 1974, Attorney Larry Levanthal, teaching at St. Scholastica College in Duluth, instructed two Lac Courte Oreilles tribal members Fred and Mike Tribble about unresolved treaty rights claims in the ceded territories of Michigan, Wisconsin, and Minnesota.
It was illegal for tribal members to spear fish or hunt deer off the reservation except within narrow State statutes. Tribal members were being cited into state courts for trying to feed their families.
After the class, the Tribble brothers dragged their spear fishing shack off the reservation onto State waters, started fishing, and were arrested by Wisconsin game wardens.
The Tribbles’ showed the wardens the 1837 Treaty between the Chippewa and the United States which guaranteed the tribes’ right to hunt, fish, and gather in the ceded territory. But the wardens were unmoved. A Sawyer County judge upheld the arrest.
On appeal Federal judge Doyle sided with the State. But the Seventh Circuit Court of Appeals reversed in 1984 and eventually treaty rights were upheld by the US Supreme Court in 1999 in Mille Lacs v. Minnesota.
Larry Levanthal discusses the importance of treaty rights for tribal sovereignty and how treaty rights might be used to challenge coal fired, electricity plants and other polluting industries.
Emily Brand, a recent law grad, published “The Struggle to Exercise a Treaty Right: An Analysis of the Makah Tribe’s Path to Whale,” in Environs, a law journal from UC Davis. An excerpt from the intro:
At the heart of this conflict are the actors who are all trying to do what they think is right. The animal rights activists want to participate in the administrative system to ensure marine mammal protection, the Makah Tribe wants to exercise its treaty right to continue focal cultural and religious traditions, and NOAA wants to fulfill its administrative duty, including its fiduciary duty under the Neah Bay Treaty. Unfortunately, the combination of good intentions created a momentum that is no longer controllable by any one party and left the Makah with an indefinitely suspended treaty right.
The Tribe now faces a complex legal road, juggling the administrative action, the criminal case, and an imminent civil suit. The Tribe must act carefully in managing its actions and arguments so as not to foreclose any way to exercise its treaty right. The Makah have three main avenues of action: 1) follow the administrative agency MMPA waiver process defined by Anderson v. Evans; 2) re-assert issues from Anderson in criminal court; or 3) re-visit Anderson’s challenges after NOAA’s waiver determination in a civil suit. Each path involves a different strategy and risk. However, all paths lead to the Ninth Circuit and ultimately the Supreme Court, the only place where this issue could finally be put the rest.
Douglas C. Harris posted his paper,The Boldt Decision in Canada: Aboriginal Treaty Rights to Fish on the Pacific, part of THE POWER OF PROMISES: RETHINKING INDIAN TREATIES IN THE PACIFIC NORTHWEST, Alexandra Harmon, ed., University of Washington Press, 2008. Here is the abstract:
The Oregon Boundary Treaty of 1846 established the forty-ninth parallel as the boundary between British and American interests in western North America. After 1846, Aboriginal peoples to the north of the border negotiated with the British Crown the terms of their coexistence with incoming settlers, those to its south with the United States. As a result, while some of the Coast Salish and Kwak’waka’wakw peoples in what would become British Columbia concluded treaties between 1850 and 1854 with the Crown’s representative, James Douglas, the tribes in the United States settled with the governor of the Washington territory, Isaac I. Stevens, in 1854 and 1855.
From Chicago Tribune:
MADISON, Wis. – U.S. District Judge Barbara Crabb, whose rulings helped clear the way for the resumption of Chippewa off-reservation treaty rights in northern Wisconsin, announced Thursday she is retiring.
Crabb, appointed in 1979 by President Jimmy Carter, said she will retire to senior status, allowing her to continue to hear some cases and clearing the way for President Barack Obama to appoint a replacement.
Crabb, 69, said the move provides a way to tackle the court’s increasing caseload without asking Congress to create a third judgeship.
“Given the nation’s current economic straits and the immediate needs of this court, I have decided after considerable reflection that this is the best course for all concerned,” Crabb said in a statement.
From the Mt. Pleasant Morning Sun:
The official flag of Isabella County acknowledges the Saginaw Chippewa Indian Tribe as a significant part of the community.
Yet, the lack of recognition of Isabella Reservation boundaries by the county are “at the heart of the issue” for the Tribal government’s lack of official sponsorship or representation at the upcoming sesquicentennial celebrations.
“It is the heart of the whole issue,” Tribal Chief Fred Cantu Jr. said. “We really are standing to those treaties.
Here is the brief, where the tribe responds to the state’s laches defense for the first time on appeal — reply-brief-of-appellant-ottawa-tribe-of-oklahoma
The other materials in this important case are here. A link to the district court opinion in the Saginaw Chippewa reservation borders case referenced in the reply brief is here.
Please see our previous post on this case here (it links to the briefs and other materials in the lower court).
Here is the Ottawa Tribe’s opening brief: appellant-brief
And here is the amicus brief signed by the National Congress of American Indians and several Michigan tribes on the laches question: brief-amici-curiae
And now the State of Ohio’s brief: brief-of-defendant-appellee-director-of-ohio-dept-of-natural
Here is the opinion.
An excerpt:
These principles persuade the Court that, as a matter of law, the time-based equitable defenses Defendants wish to advance are inapplicable to the issues here presented and may not otherwise be advanced against the United States’s enforcement of its treaties. Consequently, Defendants may not rely on the time-based equitable defenses of laches, estoppel, acquiescence, or impossibility. In addition, testimony and proofs offered in support of these affirmative defenses are irrelevant. Thus, the United States’s and the Saginaw Chippewa’s motions should be granted.
Turtle Talk 
You must be logged in to post a comment.