treaty rights

Winters Centennial Conference — Santa Anna Pueblo — June 9-12, 2008

Matthew L.M. Fletcher1 Comment

THE WINTERS CENTENNIAL:
WILL ITS COMMITMENT TO JUSTICE ENDURE?
June 9-12, 2008
Hyatt Regency Tamaya — Santa Ana Pueblo, New Mexico

The year 2008 marks the centennial of Winters v. United States, in which the Court formulated the reserved water rights doctrine now broadly asserted by Indian tribes and federal agencies. The decision, because of its enduring promise of justice to Native Americans, marks one of the great achievements of American jurisprudence.  The decision made possible the continuity of many Indian communities and non-Indian communities alike, along with the protection of important environmental resources. Now, one hundred years later, the question is whether the promise of Winters will be fulfilled. In celebration of the Winters Centennial, the Utton Transboundary Resources Center and the American Indian Law Center will convene a major symposium in June 2008 along the waters of the Rio Grande near Albuquerque. The symposium will review the legal and cultural history of the decision, assess the contemporary consequences of the reserved water rights doctrine (both nationally and internationally), and project the significance of Indian water rights into the 21st Century. The goal of the symposium is to assemble Indian reserved rights policy makers and decision makers at all levels in order to deepen the understanding of the effect of Winters and to advance the dialogue regarding the future role of reserved rights.

“Why Tribes Should Not Withdraw From Treaties”

Matthew L.M. Fletcher3 Comments

From RezNet’s TriBaLOG:

Following is a statement from the office of Rodney M. Bordeaux, president of the Rosebud Sioux Tribe:

On December 19th, 2007 four individuals calling themselves the Lakota Freedom Delegation held a press conference at the Plymouth Congregational Church in Washington DC where they announced a plan to withdraw from all Treaties signed by Indian Tribes with the United States.

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Washington v. Cayenne — WA SCt Petition for Review — Treaty Rights

Matthew L.M. Fletcher1 Comment

This is a criminal case in Washington state with possible implications for any tribe with preserved treaty hunting and fishings. The crime was committed by Cayenne (allegedly, I suppose) off the reservation, involving a violation of state fishing laws (i.e., gillnetting). The trial court issued an order upon conviction that the tribal member could not use gillnets even on the reservation because of this off-reservation crime. The Washington Court of Appeals reversed that aspect of the punishment.

Now the State is petitioning the State Supreme Court for review.The State AG filed an amicus in support of the petition. Some of the arguments made by the AG are troubling in the least.

Here are the materials:

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Suit Filed Against State re: Acid Mine in U.P.

Matthew L.M. Fletcher

Here’s the commentary from the activists. And here are some materials on the mine from the Great Lakes Natural Resource Center in Ann Arbor. Here’s our previous post on the subject.

We’ll post the complaint when we get it.

Article on the Treaty of Waitangi

Matthew L.M. Fletcher

Mark J. Bennett & Nicole Roughan have posted “Rebus Sic Stantibus and the Treaty of Waitangi” on SSRN. This is a very interesting paper, a response to the argument put forth by renowned legal thinker Jeremy Waldron that the doctrine of rebus sic stantibus could be applied to the Treaty of Waitangi to effectively abrogate it. In short, this argument goes, the passage of time and radically changed political realities could serve to render the Treaty unenforceable.

This, I think, is a similar argument to what the Vermont Supreme Court made in State v. Elliott and what the U.S. Supreme Court did in Sherrill v. Oneida Indian Nation — where the passage of time and changed political circumstances appear to render Indian treaty rights nugatory. In short, it’s troubling.

From the abstract:

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Makah Whalers Charged in Tribal Court

Matthew L.M. Fletcher

From the Seattle Times:

5 whalers charged in tribal court

 

Five Makah tribal members who already face federal charges for killing a gray whale off Neah Bay in September have now been charged in Makah Tribal Court for participating in the unauthorized hunt.

The charges were filed in tribal court on Nov. 16 but weren’t made public until Monday, when the last of the five was officially served with court papers, said Makah tribal attorney John Arum.

Wayne Johnson, Frankie Gonzales, Andrew Noel, Theron Parker and William Secor each face five charges in tribal court, including the violation of the tribe’s Gray Whale Management Plan.

If convicted, they could face up to a year in the tribal jail, a $5,000 fine and a three-year suspension of their tribal fishing rights for participating in the Sept. 8 hunt.

The five were charged in federal court in Tacoma last month and pleaded not guilty to misdemeanor violations of the federal Marine Mammal Protection Act.

It is unclear whether the men will first be tried in federal or tribal court, Arum said. Arraignment on the tribal-court charges is expected in the next two or three weeks, he said.

Challenge to EPA’s Mercury Rule — New Jersey v. EPA (CADC)

Matthew L.M. Fletcher1 Comment

The D.C. Circuit will hear oral argument in the challenge to EPA’s regulations applying to coal-fired plants, New Jersey v. EPA, on December 6, 2007. The panel includes Judges Rogers, Tatel, and Brown. The order on oral argument is here: D.C Circuit Order

Selected briefs are included below:

State Governments Opening Brief

Environmental Groups Opening Brief

Treaty Tribes Opening Brief

EPA Brief

Brief of States Supporting EPA

State Government Reply Brief

Environmental Groups Reply Brief

Treaty Tribes Reply Brief

Makah Whaling Prosecution in Both Tribal and Federal Courts

Matthew L.M. Fletcher

 

Makah tribal members seek postponement of federal trial for illegal whale hunt

By Lynda V. Mapes

Seattle Times staff reporter

 

Enlarge this photo

COURTESY US ATTORNEY’S OFFICE

This grey whale was illegally harpooned, shot and killed by five Makah tribal whalers.

 

 

Defense attorneys for Makah tribal members accused of illegally hunting a gray whale last September are seeking to postpone a federal trial at least until March so they have more time to prepare their case.

And despite Makah leaders’ earlier vows of swift tribal justice for the men, a trial in tribal court has been slowed because the tribal prosecutor has family and business ties to two of the accused.

The five whalers were indicted on violations of the Marine Mammal Protection Act by a grand jury in U.S. District Court in October. The misdemeanor charges could mean up to a year in jail and a $100,000 fine.

No date has been set for a trial yet, but the defense request for a delay means early March or even April, said Assistant U.S. Attorney Jim Oesterle.

“We would just as soon do this sooner than later,” Oesterle said. The five men harpooned and shot a gray whale in the Strait of Juan de Fuca Sept. 8. The tribe did not have a necessary waiver to hunt a whale under its treaty with the U.S. The case has hampered efforts by the tribe to get that waiver, and that makes tribal leaders eager to put the case behind them.

But Neah Bay is a small town, and the tribe needs to find someone other than its usual tribal prosecutor to try two of the defendants because she is related to one of them and had a family business relationship with the other.

Like many cases, this one may actually never see trial. Members of the Makah tribal council have been discussing the benefits of a settlement, in which a single plea agreement could be negotiated between the federal and tribal governments, said Micah McCarty, a tribal council member.

“I believe it would be better for the federal and tribal government to keep this from going to trial,” McCarty said. “We would lean favorably toward that, we have had discussions just recently among the council, and I think my colleagues would concur if this is a possibility. A trial could be turned into a media circus that we don’t want to be a part of.”

John Arum, an attorney for the Makah Nation, said such a discussion is premature. But he agreed taking the case to trial was not the best outcome for anyone.

“We are doing what we can to make it less likely that will happen,” Arum said. McCarty said the tribe remains committed to prosecution. “We have a sense of urgency in light of our reputation that we are a government that respects the rule of law,” he said.

Squaxin Island: 4th Annual Tribal Water Rights Conference – Climate Change: Impacts to Water, Fish, Cultures, Economies, and Rights

Matthew L.M. Fletcher1 Comment

4th Annual Tribal Water Rights Conference – Climate Change: Impacts to Water, Fish, Cultures, Economies, and Rights

When:  October 24-25, 2007

Where:  Squaxin Island Tribe’s Little Creek Casino Resort, Shelton

Agenda and Registration:  http://www.wateradvocacy.org

The Center for Water Advocacy, the Squaxin Island Tribe, and the Indian Law Sections of the Washington and Oregon State Bars are sponsoring the Fourth Annual Northwest Tribal Water Rights Conference to take place at the Squaxin Island Tribe’s Little Creek Casino Resort in Shelton. The conference will address a broad range of areas relating to the impact of climate change on the reduction of stream flows and how such reductions impact tribal interests in the Pacific Northwest.

With your participation, we expect to create a regional dialogue to address an urgent need communicated by tribes to become more united in confronting global warming and protecting tribal fisheries, instream flows, treaty rights, and water quality. This year, we will focus not only on recent information suggesting that climate change is proceeding more rapidly than anticipated, but also on strategies for addressing these issues.

As part of the conference, please join us for a reception and complimentary refreshments hosted by the Squaxin Island Tribe on Wednesday, October 24, at the Squaxin Island Museum Library and Research Center in Shelton from 5:00-7:00 pm. We have invited Winona LaDuke, executive director of Honor the Earth, to be our special guest at the reception.

For questions regarding the conference, please contact: Terry Shepherd, conference coordinator, nepatalk@uci.net or 970-420-9148.

Cost:  $275

Approved for 9.5 CLE credits (includes 1.0 ethics)

More Press Coverage of Inland Settlement

Matthew L.M. Fletcher

Detroit Free Press: ” QUESTION: Why didn’t the state fight the Indian treaty rights in court? ANSWER: That’s the route Michigan took in the 1970s Great Lakes case and that Wisconsin and Minnesota elected to follow in the 1990s with even more disastrous results for sportsmen. Those other states got a series of rulings that not only upheld the treaty rights of the Indians but gave them 50% of the walleye quotas in inland lakes, allowed them to use gill nets and created inland commercial walleye fisheries.” Exactly!

Escanaba Daily Press: “The federal courts have consistently held that the passage of time changes nothing from when the original treaties were signed. It could be considered as similar to how our Constitution has held up without other interpretation, in providing our rights as citizens.”

Alpena News: “Avoiding litigation over the issue was a huge accomplishment – saving both sides a lot of money and needless aggravation. Tribal members seem content that their basic cultural identity and rights both were recognized and reserved, while conservationists seem satisfied safeguards are in place to scientifically manage our natural resources for generations into the future.”