Indian Law: Understanding Treaty Fishing Rights

Submitted by Ryan Miller, Environmental Liaison, Tulalip Tribes Natural Resources 

ON THE TREATY FRONT: A series on the history and meaning of tribal sovereignty, treaty rights, environmental stewardship and issues that threaten these important rights. This is the second in a recurring series of articles produced by the Tulalip Tribes Treaty Rights Office to help educate and inform the membership. Our Mission is to “Protect, enhance, restore and ensure access to the natural resources necessary for Tulalip Tribal Members’ long-term exercise of our treaty-reserved rights.” 

Indian Law: Understanding Treaty Fishing Rights

In treaties signed with the U.S. Government, our ancestors made great sacrifices by ceding millions of acres of land to the federal government in exchange for certain protections for our traditional and cultural values and ways of life. Article Five of the Treaty of Point Elliott guarantees the signatory tribes the right of taking fish at their usual and accustomed grounds and stations in common with all citizens as well as hunting and gathering roots and berries on open and unclaimed lands. Despite the federal government’s guarantees to tribes that they would be able to take fish as they always have, throughout the first half of the 20th century Indian fishermen faced fierce opposition to exercising this right from the State of Washington and non-Indian fisherman. These tensions led to battles in court, all of which contributed to the decision made by Judge George Boldt in US v Washington also known as “The Boldt Decision”, the foundational Indian treaty fishing rights case. 

In 1905, the United States Supreme Court handed down the first decision addressing treaty fishing rights in U.S. v. Winans.  In that case, the United States brought suit on behalf of the Yakima Nation against the Winans Brothers who, by attaining a permit for a fish wheel from the State of Washington had not only depleted the Yakimas’ fish supply but had also prevented them from accessing their traditional fishing grounds. The Supreme Court’s decision laid the foundation for the interpretation of treaties in the future and produced what was later called the “cannons of treaty interpretation”. 

We have said we will construe a treaty with the Indians as “that unlettered people” understood it, and “as justice and reason demand, in all cases where the power is exerted by the strong over those to whom they owe care and protection”, and counterpoise the inequality “by the superior justice which looks only to the substance of the right, without regard to technical rules.”

The Supreme Court in US v Winans held that treaties are “not a grant of rights to the Indians, but a grant of rights from them and a reservation of those not granted”. The Supreme Court’s ruling states that issues of treaty interpretations must favor Indians as they were at a severe disadvantage during the negotiations which took place in a foreign language and often with the threat of violence. The court also notes that treaties must be interpreted the way the Indians of the time would have understood them. This idea is critical because our ancestors were deeply concerned about having access to all the places that they had always gathered and their concerns were heard by Governor Stevens who reassured them that they would always have access to their traditional places and resources.

I wish to speak my mind as to selling the land. Great chief!  What shall we eat if we do so? Our only food is berries, deer, and salmon. Where then shall we find these? I don’t want to sign away my right to the land…..I am afraid that I shall become destitute and perish for want of food.

Hool-hol-tan, Skokomish leader speaking to Gov. Isaac Stevens at treaty negotiations 1855 (from article in Pacific Northwest Quarterly)

Governor Stevens responded to questions like these at all of the treaty negotiations,

You understand well my purpose, now you want to know what we desire to do for you. We want to give you houses and having homes you will have the means and the opportunity to cultivate the soil to get your potatoes and to go over these waters in your canoes to get your fish. We want more, if you desire to go back to the mountains and get your roots and your berries you can do so and you shall have homes and shall have these rights. 

The courts determined that though the Winans Brothers acted lawfully by the standards of the State of Washington; they had violated the Yakima Nation’s treaty rights by restricting their access to traditional fishing grounds. 

In 1942 Sampson Tulee, a member of the Yakima Nation, was convicted in the Superior Court of Klickitat County for catching salmon with a net without obtaining a license from the State of Washington. Tulee appealed to the Supreme Court on the grounds that the Washington State statute violated his treaty right. The court, in Tulee v. Washington, held that while the State of Washington had the right to regulate Treaty fishing outside the reservation for the conservation of species, it could not charge a fee to Indians for the license required. 

We believe that such exaction of fees as a prerequisite to the enjoyment of fishing in the ‘usual and accustomed places’ cannot be reconciled with a fair construction of the treaty. We therefore hold the state statute invalid as applied in this case…It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council and in a [315 U.S. 681, 685] spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people. 

While these cases represent “wins” for treaty tribes and their members they are also directly reflected in the decision of Judge Boldt in US v Washington. Over 100 years after the signing of the treaty and years of conflicts over treaty fishing, the U.S. sued the state of Washington in 1970 on behalf of Washington’s treaty tribes.

Stay tuned for our next article which will focus on the landmark Indian Law case US v Washington and other treaty fishing decisions all the way through to the culvert case.

Law Firm Gifts $3.5M to Tribal Health

By Joaqlin Estus, KNBA- Anchorage

A national law firm that specializes in Indian law is donating $3.5 million to improve medical care for tribal members. The decision comes after the firm, which has offices in Anchorage, helped win a case before the U.S. Supreme Court involving hundreds of millions of dollars for tribal health organizations.

The law firm Sonosky, Chambers, Sachse, Miller and Munson last year was one of the law firms that successfully fought for back payments to tribes from the Indian Health Service and Bureau of Indian Affairs. Attorney Lloyd Miller, a partner in the firm, says the firm wanted to give back to Indian Country, and recognizes the firm’s 40-year anniversary:

“We wanted to give back to Indian Country,” said Miller. “And since so much of our work involves health care issues, we wanted to focus our charitable contribution program on improving health care facilities, either entire clinics or acquisition of critical equipment such as cat scans, MRI machines and the like.”

Four-hundred-fifty thousand dollars each is going to the statewide Alaska Native Tribal Health Consortium for patient housing, and to the Anchorage-based Southcentral Foundation for construction of a behavioral health clinic. Last year, ANTHC was paid $153 million for contract support costs, or overhead, that had been in litigation since 1990. Southcentral was awarded $96 million. Miller says $200,000 each is going to the Choctaw, Cherokee, and Chickasaw nations:

“For the most part we’re working with tribes we know very well,” said Miller. “Tribes we’ve had a relationship with since the firm’s founding, in the case of some of the tribes we’ve worked with for 40 years.”

Miller says he hopes their donation will inspire other companies that work with tribes on self governance in health:

“We encourage them to come up with matching funds so that the tribes can do more for their people.”

Miller says in the coming year, the firm will be working on grants to other tribes in Oklahoma, and in North Dakota, South Dakota, and Montana.

Lawyer-Columnist Paul Now an Appellate Court Judge

 

Courtesy Patricia PaulPatricia Paul ... is now a judge of the Confederated Tribes of the Grand Ronde Court of Appeals.

Courtesy Patricia Paul
Patricia Paul … is now a judge of the Confederated Tribes of the Grand Ronde Court of Appeals.

 

Richard Walker, Indian Country Today

 

Patricia Paul, Inupiaq, is a business and estate-planning lawyer specializing in land use law and federal Indian law.

She and her artist husband Kevin live on the Swinomish Reservation, where he serves on the Swinomish Senate. She manages the business end of K. Paul Carvings, writes a traditional-cooking column for a local newspaper, and her daily social media posts range from local happenings to that day’s culinary creation.

Her spare time is her own. And she’s filling it with another important task: She’s now a judge on the Confederated Tribes of Grand Ronde Court of Appeals.

The Tribal Council appointed Paul to a term ending on November 30, 2016. She joins Robert J. Miller, Eastern Shawnee, Douglas R. Nash, Nez Perce, on the court. She previously served as an appellate judge for the Northwest Intertribal Court System, presiding on appeals at Nooksack, Port Gamble S’Klallam, and Tulalip.

Paul brings a varied background to the bench.

In 1990 – three years before she graduated from college – she authored the booklet, “Beda: Traditions of Early Infant Care.” According to Paul, “Beda” is a Lushootseed word meaning “My child.” The booklet relates four Swinomish elders’ stories about traditional ways in which their families cared for and raised children. According to an Associated Press story at the time, the booklet was recognized by the American Indian Health Care Association “as a creative approach to solving health problems in Native communities.”

Paul earned a bachelor’s degree in liberal studies from Antioch University in 1993, and a law degree from Seattle University in 1998. She attended The National Judicial College in Reno, Nevada in 2011 and earned a certificate in Innovations in Governance from Harvard University’s John F. Kennedy School of Government in 2005.

She was legislative policy analyst for Quil Ceda Village on the Tulalip Reservation from 2003-06, before leaving to concentrate on her law practice. She served as parliamentarian of the annual shareholders meeting of Doyon, Limited, an Alaska Native Corporation, in March 2009.

In November 2012, Paul lectured in Bhutan on the topic of cultural change, and presented a paper on that topic in 2012 at the 54th International Congress of Americanists in Vienna.

 

Read more at http://indiancountrytodaymedianetwork.com/2015/03/13/lawyer-columnist-paul-now-appellate-court-judge-159578

Supreme Court Used Indian Law to Prevent Birth Control for Women

AP photo

AP photo

 

Rob Capriccioso, Indian Country Today

 

In wake of the 5 – 4 decision by the Supreme Court in Burwell v. Hobby Lobby issued June 30, political commentary on religious freedom, abortion rights, and the war on women has been endless.

Less talked about in the mainstream has been that the court used an Indian-centric law, the Religious Freedom Restoration Act (RFRA) of 1993, to help it come to its opinion, which said that some family-owned and other closely held businesses, like the Hobby Lobby craft store, are allowed to opt out of the federal Obamacare mandate requiring such companies to pay for contraceptives in health coverage for their workers.

As the conservative justices wrote for the majority, the RFRA was enacted by Congress in 1993 in response to a 1990 high court decision, Dept. of Human Resources of Ore. v. Smith, which found that a state could deny unemployment benefits to a person fired for using peyote, even if the drug was used as part of a religious ritual.

The Smith case came to fore after two members of the Native American Church were fired for ingesting peyote for sacramental purposes and then were later denied unemployment benefits by the state of Oregon because consuming peyote was against the law there.

Enter Congress and its RFRA, aimed at preventing such religious-based discrimination. It passed with almost unanimous support in both the House and Senate, and President Bill Clinton signed it into law in 1993.

One year later, the House Subcommittee on Native American Affairs and the Senate Committee on Indian Affairs further dealt with the narrow issue of Smith on the specific issue of the sacramental use of peyote.

“We amended the American Indian Religious Freedom Act [AIRFA] in 1994 to allow for the sacramental use of peyote,” says Tadd Johnson, former director of the subcommittee and now the head of the American Indian studies department at the University of Minnesota at Duluth. “President Clinton signed it into law. This AIRFA amendment on peyote still stands.”

Using Peyote to Prevent Birth Control

Fast forward 20 years: The owners of Hobby Lobby and two other closely held for-profit corporations who believe life begins at conception and that it would violate their Christian beliefs to pay for birth control, sued the federal government under the auspices of RFRA.

Writing for the majority, Justice Samuel Alito agreed with their argument: “As applied to closely held corporations, the [Department of Health and Human Services] regulations imposing the contraceptive mandate [of Obamacare] violate RFRA,” he wrote. “RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel.”

The high court further offered that the federal government could find ways to pay for birth control coverage if it wishes to do so.

And that is how a law rooted in protecting Indian religious freedom was successfully used by major companies to shield them from having to pay for birth control for employees covered under the companies’ health plans.

Say What?

It was a shocking development to many Indian-focused legal experts who were working in the trenches during the peyote-based foundations of RFRA, and who have since seen that very law applied by the federal courts in ways that they feel are unjust toward American Indian religious practices involving sacred sites.

Stephen Pevar, a lawyer with the American Civil Liberties Union (ACLU) who has long argued in favor of protections for Indian religious practices, said he never envisioned that the RFRA would be used for such a purpose. “[I]t never occurred to me,” he said. “I doubt if it occurred to anyone.”

Pevar followed the drafting of the RFRA and early Indian advocacy for it by respected Native American legal scholars including Jack Trope, director of the Association on American Indian Affairs, and Walter Echo-Hawk.

Trope, too, was surprised to see the RFRA used in such a manner. “I can’t say that I ever really thought about the issue of for profit corporations utilizing RFRA until these cases came up,” he says.

Using RFRA Against Indians & Women

In 1997, Indian-focused legal advocates were disturbed to see the RFRA watered down by the Supreme Court, which ruled then in City of Boerne v. Flores that the law was applicable to the federal government but not to the states. Thus, tribal citizens who have their religious freedoms usurped by states, as happened in the original Smith Peyote case, are left unprotected by federal law.

Of more concern to such advocates is that the high court has never used the RFRA to do what it was intended to do: protect Indian religious freedoms. Yet now, it is using the law to limit the rights of women who want to use their healthcare coverage to buy birth control.

Pevar sees a parallel between how the high court treats Indians and women. “The Supreme Court, with rare exceptions, has been insensitive to women’s issues, and the Court’s record is even worse—far worse—on Indian issues,” he says. “In the last 30 years, Indians and tribes have lost at least 75 percent of their cases in the Supreme Court. The Supreme Court is asked to review some 7,000 cases a year but selects fewer than 100.

“The fact that the Court selects so many Indian cases and then rules against Indians in those cases suggests a desire to harm Indian interests.”

A Silver Lining for Sacred Sites?

If there is any good news for Indians to come from the case, Trope says that it provides an outline to allow Native-focused lawyers to strengthen their arguments in the federal courts regarding the use of RFRA to protect sacred sites in future cases.

Trope notes that in the recent Navajo Nation case before the Ninth Circuit focused on the tribe’s contention that the San Francisco Peaks are sacred to the tribe and thus corporate development on them should be limited, “one of the main arguments made against us was that RFRA was meant to turn back the clock to the day before the Smith decision in 1990.”

Such rationale meant that decisions like the Supreme Court’s in the 1988 Lyng case – which interpreted the First Amendment in a way that did not provide protection to Indian sacred sites – would still be good law, despite the existence of RFRA. (The Lyng case centered on an American Indian religious-based challenge to the development of a road for timber harvesting.)

But “[t]he court in the Hobby Lobby case rejected the idea that the intent of RFRA was only to restore the law as it was in 1990 before Smith,” Trope says. “Instead, the court essentially held that RFRA provides broader protection than was provided by the First Amendment prior to the Smith case.”

Because the application of RFRA to Native sacred sites has been unresolved to date – notwithstanding the Ninth Circuit’s toiling in Navajo Nation’s San Francisco Peaks case – Trope finds in the latest decision a reason to be hopeful.

“[O]nly time will tell whether the interpretation of RFRA in Hobby Lobby turns out to be helpful in future sacred sites cases or whether courts will continue to find ways to reject Indian religious freedom claims,” says Trope.

 

Read more at http://indiancountrytodaymedianetwork.com/2014/07/02/supreme-court-used-indian-law-prevent-birth-control-women-155618?page=0%2C1

Indian Law Attorneys’ Advice to Tribes: ‘Stay Out of the Courts!’

By Gale Courey Toensing, Indian Country Today Media Network

During a impersonation of President George Bush Sr. on Saturday Night Live some years ago, comedian Dana Carvey made the following joke: “We have learned well the simple lesson of Vietnam: Stay out of Vietnam!”

Indian law experts are giving the same advice about United States courts, but it’s no laughing matter.

At the National Congress of American Indians 70th Annual Convention in Tulsa, Oklahoma, in October, Richard Guest, the Native American Rights Fund’s lead staff attorney in Washington, sounded the alarm.

Since John Roberts was made chief justice of the U.S. Supreme Court in 2006, Guest said, “We’ve had one win and nine losses in front of the Roberts court. And our message as we sat in Reno at the mid-year [NCAI] meeting and we‘d just been handed the decision in the Baby Veronica case – that message is still true here today: Stay out of the courts!”

RELATED: United Nations Demands Respect Veronicas Human Rights

Guest, NARF founder and director John Echohawk, and NCAI general counsel John Dossett have worked together for years on the Tribal Supreme Court Project and updated convention attendees about their current work.

“The federal courts are not your friends anymore,” Guest continued. The majority of judges sitting on the lower federal courts were appointed by Bush II – very conservative, have no understanding of Indian country at all. No interest in your issues. And that can be said of the Roberts court as well. It’s a very difficult place for tribes to secure victories.

The NARF still wins about 50 percent of its cases in federal courts, Guest said, but the challenge is in determining which cases will go up to the U.S. Supreme Court.“There are a lot of cases to keep track of that may be headed toward the Supreme Court and that’s one of the things the Tribal Supreme Court Project does,” Echohawk said. The project works with the tribal parties involved to brief the issues and bring all the experts – Indian law attorneys, Supreme Court practitioners – together in the hope of changing the losing record, he said.

There was no reason for the Supreme Court to grant review in the Adoptive Couple v. Baby Girl case, Guest pointed out. Although he did not claim outright that the high court’s decision to grant cert was politically influenced, his descriptions of the powerful players brought in by the plaintiffs suggest that the fix was in for that to happen. “The petitioners secured the assistance of a Supreme Court practitioner, Lisa Blatt, who wrote a brilliant amicus brief. She brought in Paul Clement, the former solicitor general of the United States, along with Gregory Garre, another solicitor general of the U.S. under the Bush administration. And they wrote amicus briefs on behalf of the adoptive couple, on behalf of the baby girl, on behalf of the birth mother, all indicating reasons why the court should grant review.”

RELATED: Native American Rights Fund: Stop the Forced Removal of Baby Veronica

Foremost among the amici’s strategies was to use the scare tactic of promoting the idea that the Indian Child Welfare Act, which seeks to protect Indian children by keeping them with Indian families, was unconstitutional – that Indians do not deserve special treatment or protections under federal law, Guest said. “And as soon as they got review granted they backed away from that position. But it was a case that should never have gone to the Supreme Court of the United States. Having those nine justices decide whether Baby Girl belongs with father or with adoptive couple in South Carolina – why is that an issue for the U.S. Supreme Court?”

The same goes for Michigan v. Bay Mills Community, Guest said. The U.S. Supreme Court will decide whether a state can challenge a tribe’s right to open a casino in this case, which involves a three-year old conflict over an off reservation tribal casino in northern Michigan. The high court will not rule on whether the off reservation casino is legal; it will decide whether the state has the legal standing to challenge a tribe’s right to open the casino. The ruling can potentially impact tribal sovereignty throughout Indian country and be as devastating as the Supreme Court’s 2009 Carcieri ruling, which limited the U.S. Department of the Interior’s ability to take lands into trust for tribes recognized after 1934, Guest said.

RELATED: Challenge of Off-Reservation Tribal Casino Goes to Supreme Court

RELATED: So Close! How the Senate Almost Passed a Clean Carcieri Fix

“When you have states or local governments on one side [of a case] and Indian tribes or tribal interests on the other side, [the Supreme Court is] interested,” Guest said. “They’re interested in being able to define what state authority is going to be over Indian activities.”

The Tribal Supreme Court Project attorneys are asking tribes not to file individual briefs in the Bay Mills case but rather to sign on to the project’s amicus brief on the “strength in numbers” theory. For more information contact Guest at Richard.g@narf.org or Dossett at jdossett@ncai.org.

 

Read more at http://indiancountrytodaymedianetwork.com/2013/10/28/indian-law-attorneys-advice-tribes-stay-out-courts-151957

To The Barricades! Echo-Hawk Says Justice for Natives at Tipping Point

light_of_justice_cover_echo-hawkKevin Taylor, ICTMN

With his distinctive round eyeglasses and long, gray braids, Walter Echo-Hawk looks rather more owlish than revolutionary.

But the longtime Pawnee speaker, author and lawyer who toils on the frontlines of federal Indian Law makes a strong argument that it is time to drive a stake into the legacy of colonialism in his new book, In the Light of Justice: The Rise of Human Rights in Native America and the UN Declaration on the Rights of Indigenous Peoples (Fulcrum, 2013).

That stake could be the United Nations Declaration of the Rights of Indigenous Peoples, which Echo-Hawk sets out to examine and explain. Adopted by the United States in December 2010, it has yet to be integrated into law or policy. This provocative book, educational and inspiring for indigenous and “settler” alike, can show the way.

RELATED: Bringing UNDRIP to the People Is Next Step for Indigenous Rights: Chief

Echo-Hawk says he was motivated to write this volume as something of a hopeful counterpoint to his previous book, In the Courts of the Conqueror, which examined the worst cases in federal Indian law.

RELATED: In The Courts of the Conqueror: A Short Review

What jumps out at anyone studying mainstream attitudes toward this country’s Indigenous Peoples is the fact that what much of white America thinks of as a bygone era of treaty making, frontier warfare and taming the West is, to Indian people, current events. Life under the heel of historical oppression looks far different than the view of the boot wearer.

This difference in perspective goes deep to the bubbling heart of the notion of Melting Pot America, dividing white from brown, immigrant from Native. The confusion over Indian and Non-Indian relations becomes clear in this well-focused book when Echo-Hawk identifies a root cause that is often forgotten, or is not understood in the first place: colonial policies and their attendant settler mind-set.

It’s symptomatic of a severe disconnect, to say the least, that a nation founded upon principles of liberty and justice and freedom for all—one willing to shed blood in defense of these principles against oppressors, no less—could treat its original inhabitants with such astonishing injustice.

Echo-Hawk demonstrates how this dynamic plays out in America’s courtrooms, especially the U.S. Supreme Court. Chief Justice John Marshall is one of the nation’s most revered jurists, yet it was Marshall who introduced the doctrine of conquest into federal Indian law in the 1823 decision Johnson v. M’Intosh, ruling that colonists owned any Indian lands “acquired and maintained by force.” Tribal people, he wrote, were “fierce savages, whose occupation was war,” and thus did not warrant international legal protections for countries under invasion.

RELATED: Walter Echo-Hawk on Supreme Court Failures

Doctrines of conquest and discovery used by European nations during 500 years of colonization, Echo-Hawk writes, allow governments to usurp indigenous land, property and rights without consent even today. Though Marshall later evolved his thinking, Echo-Hawk notes, the seeds planted in 1823 still exist. The Roberts Court, he writes, is one of the most hostile to Indian rights—the Baby Veronica ruling being the most recent example—and is actively eroding gains made in recent decades.

For every M’Intosh, Echo-Hawk says, there were other, more reasoned, decisions such as Worchester v. Georgia in 1832, in which the high court rejected conquest as an absurd legal fiction. But even as that ruling was being published, the federal and state governments were in the grip of the Indian Removal Movement, evicting Southern tribes from their homelands.

These “clothes of the conqueror,” as Echo-Hawk calls them, do not befit a democratic nation such as ours. He offers keen insight into the parallels between the long, painful African-American struggle for equality and the fight of tribal people to maintain their rights. The Civil Rights movement for many years used a counterintuitive tactic, known as the Margold Plan, to file a multitude of lawsuits urging the federal government to uphold its legal standard of “separate but equal.” Case after case after case was pursued to this end, forcing school districts and local governments and the courts to confront racial inequalities and cynical government policy.

Over several decades this approach focused at least a trickle of attention onto racial injustice, scored court victories and gained allies. Then, Brown v. Board of Education signaled a shift in tactics to a direct assault in order to show, Echo-Hawk writes, that “separate but equal” was unconstitutional.

Echo-Hawk believes that Indian Country is poised at a similar tipping point.

Skirmish after skirmish in often hostile federal courts has carved some sturdy pillars for treaty rights and sovereignty. But, Echo-Hawk argues, the cultural survival of Native America depends on a march to justice, and so does America’s evolution from a settler state to a more fully just society.

Echo-Hawk is a lawyer, and his topic of international human rights sometimes pulls him into dense thickets of language. But far from being a slog, the words in this book are illuminated by his passion for the topic, and his deep knowledge of the fight for fair treatment in federal courts. His words often burn with clarity, as does his message: Although the U.N. Declaration is a powerful tool for asserting human rights for Indigenous Peoples, it will not implement itself.

“Indigenous rights are never freely given—they must be demanded, wrested away, then vigilantly protected,” Echo-Hawk writes. “That is the essence of freedom.”

 

Read more at http://indiancountrytodaymedianetwork.com//2013/08/25/walter-echo-hawk-shines-light-justice-human-rights-native-america-150925

Will the native legal winning-streak hit 200?

25 June 2013 11:36
Written by Administrator 3 The First Perspective
Analysis by Bill Gallagher: Lawyer / Strategist / Author
Resource Rulers – Fortune and Folly on Canada’s Road to Resources

 

 

Many commentators are saying that the courts are tightening up and that the native legal winning streak will be harder to maintain for future legal challenges.

 

They could be right but then again they could be wrong – big time!

 

Recently, I cautioned that natives need to be more judicious in some of the cases that they are advancing and have warned them of over-reaching (recently they incurred three losses in a row – in my view – all in legal actions that may not have furthered their social justice causes).

 

Still they nevertheless also won two significant procedural wins at the appellate court level: ‘cumulative impacts’ in Alberta (#180) and ‘Rupert’s Land’ in Yukon (#181). Both these key issues will now have new trials: the first potentially impacting the oilsands; the second potentially impacting 40% of Canada’s land mass. Stay tuned!

 

So what makes one think that natives might hit the 200 mark? A hint comes from a case decided this week on Vancouver Island having to do with the Douglas Treaties. Again the native-side did not prevail because they failed to reciprocate by discharging their duty-to-consult obligations (being as it is a two-way street) and they were properly called-out by the court for their consultation intransigence.

 

Likewise the British Columbia government was called-out for its narrow legal-mindedness. The following paragraph from the judgment appears at the halfway point – and took me (a close reader of rulings) completely by surprise:

 

d) Did the Provincial Crown have a Duty to Consult in respect of the Kwakiutl First Nation Traditional Territory beyond the KFN Treaty Lands?

 

[123]     The Provincial Crown concedes that it had a duty to consult with respect to the treaty rights but denies this duty extended to the whole KFN Traditional Territory. (excerpt Chartrand v The District Manager 2013 BCSC 1068) (author’s underlining)

 

The fact that this assertion appears in a Supreme Court ruling in mid-2013 tells us something about the narrow legal mindset emanating from BC government lawyers.

 

Needless to say the court made short work of it:

[147]     All three elements that give rise to a duty to consult in respect of the KFN Traditional Territory were present.  Accordingly the Provincial Crown had a duty to consult with the KFN in respect of the Decisions and their potential for adverse impact on the KFN Traditional Territory and its treaty rights.  (ibid)

 

No wonder the judge told BC to bear its own court costs, along with making other recommendations in the pursuit of furthering real reconciliation down the road:

[208]     Although this declaration does not provide the relief the Kwakiutl First Nation advocated for in terms of their quest for a resolution of their Aboriginal land claims, neither does it ignore the problem.  I encourage and challenge both the Federal Crown and the Provincial Crown to engage the KFN regarding the KFN’s asserted and treaty rights, titles and interests with a view to the negotiation of a treaty without any further litigation, expense or delay. (ibid) (author’s underlining)

 

While the province did adequately consult the KFN in this instance – even with this outcome – the native side did not leave court empty-handed. More over, if the same type of provincial government narrow legal-mindedness permeates the other native legal challenges presently before the courts, then hitting 200 native legal wins in the Canadian resources sector will soon be a litigation track-record certainty. And it’s no wonder then that pipelines, dams, transmission lines, woodlots, mines, run-of-river hydro projects are all heading into the legal blender in BC.

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University of Oklahoma College of Law offers new online master’s degree in Indian law

Source: Native American Times

ORMAN, OKLA. – The University of Oklahoma College of Law recently opened enrollment for its new Master of Legal Studies in Indigenous Peoples Law program, with classes beginning Fall 2013. The program is offered online to allow students maximum flexibility.

“Located in the heart of the original Indian Territory, OU Law is uniquely qualified with nationally and internationally renowned faculty to teach students the intricacies of Native American law and the issues concerning indigenous people,” OU Law Dean Joe Harroz said. “Indian law is a vibrant and growing field. We’re thrilled to offer this new program to students, tribal leaders and business professionals who need this legal knowledge.”

The Master of Legal Studies in Indigenous Peoples Law program is tailored for lawyers and non-lawyers seeking legal knowledge in this specialized area. Courses are taught by internationally recognized faculty including Lindsay Robertson and Taiawagi Helton.

“Almost half of our students take at least one Indian law course, making it one of OU Law’s primary areas of study,” Harroz said. “Indian law is woven into the fabric of our culture, from the artwork that surrounds us, to the extensive array of courses we offer, to the annual American Indian Law Review Symposium, which has become the third largest Native American law symposium in the nation.”

Students may earn the master’s degree by successfully completing 30 units of credit over approximately four semesters of study.  Students meet their peers and professors at an introductory course on campus at the beginning of the academic year, although this requirement can be waived for good cause. Students then complete the remainder of their degree plan through courses online.

To qualify for admission to the Master of Legal Studies program, applicants must have earned their bachelor’s degree prior to the first day of class and have strong letters of recommendation, as well as leadership potential. The Master of Legal Studies Admissions Committee operates under a rolling admission process, and admissions may continue until the start of classes. However, applicants are urged to submit their application and supporting documents online at www.law.ou.edu/mls as soon as possible to receive priority review for August enrollment.

The Master of Legal Studies in Indigenous Peoples Law will be guided by an advisory board including:

·         Mita Banerjee, director of the Center for Comparative Native and Indigenous Studies at Johannes Gutenberg University Mainz in Germany

·         Curtis Berkey, partner, Berkey Williams LLP, and staff attorney at the Indian Law Resource Center in Washington, D.C. from 1979-1990

·         Rep. Tom Cole, Chickasaw tribal member, US House of Representatives

·         Phil Fontaine, Ojibwe tribal member, National Chief of the Assembly of First Nations from 1997-2009 in Canada

·         David Gover, Pawnee/Choctaw tribal member, staff attorney with the Native American Rights Fund

·         Darwin Hill, chief of the Tonawanda Seneca Nation

·         Bradford Morse, dean and professor of law at Te Piringa Faculty of Law, the University of Waikato in New Zealand

·         David Mullon, Cherokee tribal member, staff director and chief counsel, US Senate Committee on Indian Affairs

·         LeRoy Not Afraid, Crow tribal member, Justice of the Peace, Big Horn County, Montana

·         Dinah L. Shelton, Commissioner and Rapporteur on the Rights of Indigenous Peoples, Inter-American Commission on Human Rights

·         Joe Watkins, Choctaw tribal member; supervisory anthropologist and chief, Tribal Relations and American Cultures Program of the National Park Service; and director, Native American Studies program at University of Oklahoma

·         Raquel Yrigoyen Fajardo, director of the International Institute on Law and Society in Peru

The program has received American Bar Association acquiescence, and is pending State Regent approval. For more information on the Master of Legal Studies programs, visit www.law.ou.edu/mls.

About University of Oklahoma College of Law

Founded in 1909, the University of Oklahoma College of Law is Oklahoma’s premier law school and the highest ranked “Best Law School” in the state by US News & World Report. OU Law is also nationally ranked as a top 15 “Best Value” law school and in the top 15 percent of “Best Law Schools” by National Jurist magazine. OU Law has small sections and class sizes that encourage a strong sense of community, accomplished faculty with international expertise and a state-of-the-art facility featuring study rooms, court rooms and classrooms equipped with the latest technology. As Oklahoma’s only public law school, OU Law is currently the academic home of more than 500 students enrolled in the Juris Doctor, Master of Laws and various dual degree programs.