small roundup of aboriginal law items

I’m still working on some thoughts about the Bay Mills decision, but bar prep is really going to dominate my time for the next few weeks. In the meantime, here are a few short items about interesting events in Indian & aboriginal law.

First, the Supreme Court of Canada recently affirmed a trial court’s recognition of the aboriginal title of the Tsilhqot’in Nation to certain lands in British Columbia. The reasoning is not particularly startling—it takes into account standard common law ideas like exclusive occupation—but the Supreme Court and the lower court both recognized that the occupation of land on a periodic basis for activities like hunting and fishing is, in fact, occupation:

Aboriginal title flows from occupation in the sense of regular and exclusive use of land. To ground Aboriginal title “occupation” must be sufficient, continuous (where present occupation is relied on) and exclusive. In determining what constitutes sufficient occupation, which lies at the heart of this appeal, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation. Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.

In finding that Aboriginal title had been established in this case, the trial judge identified the correct legal test and applied it appropriately to the evidence . . . . [F]rom the evidence that prior to the assertion of sovereignty the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, he concluded that the Tsilhqot’in treated the land as exclusively theirs.

The recognition of aboriginal title is an interesting concept that doesn’t get much play in modern American Indian law, in part due to an alternative mechanism for dealing with land claims. The American claims process is probably less satisfactory for most tribes than a recognition of title would be, though, because for many tribes and their members, specific land is tied up with their cultural and religious practices. Receiving money or different land is thus not a complete remedy to the injury.

So this seems to be a positive ruling for the Tsilhqot’in Nation. Interestingly, though, Canadian law seems to allow provincial governments to authorize the extraction of resources from First Nations’ land without their permission, as long as there is “justification”:

This raises the question of whether provincial forestry legislation that on its face purports to apply to Aboriginal title lands, such as the Forest Act, is ousted by the s. 35 framework or by the limits on provincial power under the Constitution Act, 1867. Under s. 35, a right will be infringed by legislation if the limitation is unreasonable, imposes undue hardship, or denies the holders of the right their preferred means of exercising the right. General regulatory legislation, such as legislation aimed at managing the forests in a way that deals with pest invasions or prevents forest fires, will often pass this test and no infringement will result. However, the issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement that must be justified in cases where it is done without Aboriginal consent.

Canadian lawyer Robin Junger, who does a lot of work for extractive industries on First Nations land, writes more about that here.

I’m also curious how a Canadian court would handle land that was historically shared between nations, but was considered highly important by all—sacred land, let’s say, or land where different groups rotated hunting and fishing rights throughout the year. Particularly in the case of sacred land, it seems like the “exclusive occupation” model would fail to capture a kind of use that ought to give rise to some sort of right of title—albeit, perhaps, a joint tenancy rather than fee simple model of national title.

Speaking of land claims, Angela Riley at UCLA has a new paper out, called “Native American Lands and the Supreme Court.” It’s short and readable and provides, I think, a nice explanation of how the federal trust responsibility arose out of the creation of a literal trust in land—a split between equitable title (held by the tribes) and legal title (held by the federal government) in Johnson v. M’Intosh. Riley then documents the various ways the federal government’s breach of its fiduciary duty as trustee has been both abetted and resisted by the Court. (But mostly abetted.) Interesting reading.

The Interior Department has recently solicited public comment on a proposal to extend federal recognition to the Native Hawaiian community. Federal recognition is the primary mechanism, in American law, by which native peoples interact with the federal and state governments as sovereigns, enforce their own laws, receive federal support under the trust responsibility, and fend off encroachments on their territory. That makes it potentially useful to Native Hawaiians; who could regain a measure of sovereignty (i.e., self-government) after having had their kingdom effectively stolen by American agricultural barons a century ago. That seems positive.

On the other hand, Randall Akee writes at the Hawaii Independent that recognition needs to be driven by Native Hawaiians, not by state and federal interests:

[T]here has been strong support by at least the last two Governors of the State of Hawaii for Federal recognition of Native Hawaiians. These actions are curious, as it is not at all common for State officials to drive the recognition process for American Indian nations . . . . [On the other hand, t]he Alaska Native Land Claims Settlement Act (ANCSA) of 1971 was driven by officials of the State of Alaska, in a concerted effort that achieved the extinguishment of Alaska Native land claims and hunting and gathering rights for a cash settlement. ANCSA cleared the way for the Alaska oil pipeline construction across indigenous peoples’ lands and allowed for further oil exploration. These efforts clearly benefited the State of Alaska and its economic development prospects.

The extinguishment of Native Hawaiian and/or Hawaiian Kingdom land claims to the ceded lands which are held and administered by the State of Hawaii would clearly be in the best interests of the State of Hawaii . . . .

In order to move forward, we need to establish a process driven by the people—not State of Hawaii (or Federal) officials. A concerted effort must be made to design educational opportunities for the vast Native Hawaiian population in Hawaii and elsewhere about the numerous options and possibilities . . . .

The second step, once this education and input process is completed, would require addressing the issue of who should participate in the consensus-building process. Do Native Hawaiians want to use the antiquated roll system originally designed in the 19th Century by the US Federal government as a means to constrain the “authentic” American Indian population? Do Native Hawaiians want to use the foreign and divisive blood quantum system already imposed on some existing Native Hawaiians programs? Do Native Hawaiians want a return to traditional measures of community inclusion based on genealogical relationships? Or do Native Hawaiians want a return to the Kingdom of Hawaii processes of citizenship and naturalization?

NBC reports on similar sentiments being expressed at DOI hearings:

Mililani Trask, attorney and United Nations expert on indigenous people, said while most Hawaiians wanted federal recognition, the way the government was proceeding was unacceptable . . . .

“What you propose here is that the nation that overthrew our peoples and apologized for it without making reparations, that that nation would sit at the table and somehow fashion a procedure, hoping that in the future another true nation would somehow emerge. That will never happen.”

Finally, reports that the DOI has recently released a statement on bison management, emphasizing the need for co-management with tribes, who have historical, cultural, and economic interests in the revival of the bison herds. The full report is available here.

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