Prior post with the details of the consent decree here.
Here are materials in an interlocutory (?) appeal on whether the amici can formally intervene in the case (there is a federal brief, joined by the four tribes who signed onto the consent decree, that is sealed):
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.
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.
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. 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, 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, the Saginaw Chippewa Indian Tribe, and five Michigan Anishinaabe tribes 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.
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.”
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