New Student Scholarship on Applying the Culverts Decision to Anishinaabewaki

Nathan Frischkorn has posted “Treaty Rights and Water Habitat: Applying the United States v. Washington Culverts Decision to Anishinaabe Akiing,” forthcoming in the Arizona Journal of Environmental Law & Policy, on SSRN.

Here is the abstract:

In 2017, the Ninth Circuit Court of Appeals held that culverts installed by the state of Washington which reduce the habitat of treaty-protected salmon violate the treaty rights of Tribes in western Washington. That decision—part of the long-running United States v. Washington litigation—has since become known as the “Culverts Case.” Broadly, that decision essentially holds that habitat protection is a component of treaty-protected rights to hunt, fish, and gather. This Article analyzes what habitat protection as a treaty right would mean for the water-based, treaty-protected resources—such as fish and manoomin (wild rice)—of the Anishinaabe Tribes in Minnesota, Wisconsin, and Michigan. This Article describes relevant treaties to determine what water-based resources those Tribes have treaty rights to, and analyzes relevant precedent that defines or limits the exercise or scope of those rights in state and federal courts. Through interviews with individuals who work with Tribes on issues pertaining to usufructuary rights, this Article identifies specific environmental threats to water-based treaty resources throughout the Great Lakes region. By analogizing those identified threats to the culverts at issue in United States v. Washington, this Article examines what habitat protection as a treaty right would mean in Anishinaabe Akiing.

U.S. v. Michigan Consent Decree Extended by Court Order

Here are the materials in United States v. Michigan (W.D. Mich.):

1880 US Motion for Extension

1883 Sault Tribe Response

1886 Coalition to Protect Resources Motion to File Amicus Brief

1887 Sault Tribe Opposition

1890 Joint Brief in Opposition to Sault Tribe

1891 Opposition to Amicus

1892 DCT Order

Pro Se Effort to Stop Michigan DNR Land Transfer to Mining Company Dismissed

There are numerous pleadings here but here are the most relevant — the case is captioned Bellfy v. Creagh (W.D. Mich.):

12 DCT Order on 2d TRO Request

18 Michigan Motion to Dismiss

22 Response

27 Reply

35 GTB Brief

52 DCT Order

Prior post on this case here.

Pro Se Effort Challenging Michigan DNR Land Sale to Mining Company Fails

Here are the materials in Bellfy v. Creagh (W.D. Mich.):

1 Complaint

1-1 CORA Resolution

2 Motion for TRO

4 DCT Order Denying TRO

An excerpt:

This matter is before the Court on Plaintiffs’ ex parte Motion for Temporary Restraining Order (docket # 2), filed today. Plaintiffs seek to “enjoin Defendant, or other State of Michigan officers, employees, agencies, subdivisions, successors, or assigns” from approving a proposed sale of State land in the Upper Peninsula. (docket # 2.) Plaintiffs contend that the sale would impair their rights under the 1836 Treaty of Washington and in a 2007 Consent Decree reaffirming those rights. The Consent Decree is the subject of another case in this District, United States of America v. State of Michigan, et al., No. 2:73-CV-26 (W.D. Mich. November 2, 2007) (consent decree, docket # 1799), currently assigned to Chief Judge Paul Maloney. The Consent Decree not only addresses substantive rights of the parties, but also describes detailed alternative dispute resolution procedures. (docket # 1799, pp. 62-67.) The nature of the claim Plaintiffs are attempting to assert pro se appear to touch on both procedural and substantive provisions of the Consent Decree.

Fletcher, Fort, and Reo on “Tribal Disruption” Theory in the Michigan Law Review First Impressions

Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo have published “Tribal Disruption and Indian Claims” in Michigan Law Review’s First Impressions. PDF. Here is a taste:

Legal claims are inherently disruptive. Plaintiffs’ suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims.[1] The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, including Onondaga Nation v. New York,[2] because it considered the claims so disruptive.

We agree that Indian legal claims are inherently disruptive and may implicate the centuries-old settled expectations of state and local governments and non-Indians. It is empirically and categorically false, however, that the remedies tribal interests seek are impossible to enforce or implement in a fair or equitable manner. Every year in cases against state governments and their political subdivisions, Indian tribes settle long-standing claims that at their outset, often appear intractable, if not downright impossible, to remedy. The recent settlements of claims by the Oneida Indian Nation of New York,[3] the Saginaw Chippewa Indian Tribe,[4] and five Michigan Anishinaabe tribes[5] demonstrate the falsehood of the idea that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function: forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.

Part I of this Essay describes recent common law, which dismisses Indian claims on the grounds that they are too disruptive. Part II briefly surveys the history of the relationship between Indians and the United States. Part III describes recent settlements between tribal and local governments. Part IV presents our theory of tribal disruption based on notions of ecological disturbance, studied in ecology and related fields. We argue that ecological disturbance in linked social-­ecological systems offers a useful analog to the disruptive nature of Indian claims. These claims can be compared to disturbances in rivers, forests, or other ecosystems. Floods, forest fires, and windstorms break down existing structures, allowing space for reorganization, diversification, and new growth. Tribal claims similarly clear out a legal space for creative and improved governance institutions.

IPR Profile on American Indian Treaty Rights in Michigan

Interlochen Public Radio continues its excellent profiles of northern Michigan history with “Looking Back: The Fight For American Indian Fishing Rights,” profiling Arthur Duhamel.Arthur Duhamel

Here’s my contribution:

The urgency was about more than fish. The federal government had ignored the poverty in Peshawbestown for generations. As Matthew Fletcher puts it, the federal government just stopped returning the tribe’s phone calls in the 1870s.

Fletcher teaches indigenous law at Michigan State University and is a member of the Grand Traverse Band. Fletcher says the tribe needed some way to make the federal government recognize its existence and asserting fishing rights under a treaty signed in 1836 was the way to do that.

“The United States does not sign a treaty with counties or corporations,” says Fletcher. “They sign treaties with nations.”

Charles Cleland’s New Book: “Faith in Paper: The Ethnohistory and Litigation of Upper Great Lakes Indian Treaties”

Charles Cleland’s heavily anticipated new book (Univ. of Michigan Press website here) is now available! I’ve read the first few chapters and it’s wonderful.

Here is the book blurb:

Faith in Paper examines the reinstitution of Indian treaty rights in the upper Great Lakes region during the last quarter of the twentieth century, focusing on the treaties and legal cases that together have awakened a new day in Native American sovereignty and established the place of Indian tribes in the modern political landscape. The book discusses the development of Indian treaties in historic time and their social and legal context; specific treaties regarding hunting, fishing, and gathering rights as well as reservation issues; and the impact of treaty litigation on the modern Indian and non-Indian communities of the Great Lakes region. The book is both an important contribution to the scholarship of Indian legal matters and a rich resource for Indians themselves as they strive to retain or regain rights that have eroded over the years.

And here is the Traverse City Record-Eagle news coverage of the release of the book. An excerpt:

Written over the last five years, this 390-page book is the first comprehensive examination of 18 primary and 21 secondary treaty court cases in Michigan, Wisconsin and Minnesota. Cleland was the only person to be involved in all of the cases.

The decisions significantly changed perceptions of Native American tribes and their fishing, hunting and gathering rights, Cleland said.

The treaties gave Native Americans a different status under the law than other Americans, he said. Native Americans had always had fishing, hunting and gathering rights. The rights were not granted by the state or federal government.

“The string of court victories gave today’s Indians a legitimacy in the eyes of the larger population,” Cleland said. “It gave them a newfound political sovereignty, real clout and power.”

State governments claimed the treaties were “dead” and irrelevant at the time the cases were filed.

The Michigan Department of Natural Resources argued that the state had a right to regulate tribal fishermen who used gill nets because Michigan had banned the nets in the 1960s.

State attorneys also claimed that the nets were not native technology but introduced by the French in the early 17th century.

But Cleland’s 1966 dissertation, “The Prehistoric Animal Ecology and Ethnozoology of the Upper Great Lakes Region,” noted that Michigan’s earliest Native Americans had been using the nets at least 1,000 years before European contact.

U.S. District Judge Noel Fox reaffirmed treaty rights for Michigan’s federally recognized Ottawa and Chippewa tribes in a landmark 1979 ruling.

Treaty Rights and the Cherokee Freedmen Decision

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.

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