Wednesday, May 30, 2007

Ninth Circuit affirms scope of specific Yakama treaty provision

On May 18, the Ninth Circuit released its opinion in U.S. v. Smiskin affirming the dismissal of a prosecution of two Yakama individuals under the federal Contraband Cigarette Trafficking Act. The federal statute permits prosecution of individuals who traffic cigarettes in violation of state law, in this case Washington's law requiring notice to state officials before transporting unstamped cigarettes within the state. The defendants argued that enforcing this requirement would violate the “right, in common with all other citizens, to travel on state highways,” secured by the Yakama in their 1855 Treaty. The district court, and this month the Ninth Circuit, have upheld this argument. This is a nice example of the importance of looking at a tribe's specific treaty rights in Indian law cases.

You can read the opinion here:$file/0530590.pdf?openelement

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Friday, May 11, 2007

Native Hawaiian Self-Governance Bill Makes it out of Indian Affairs Committee

The current version of the the Native Hawaiian Government Reorganization Act, S.310, was approved by the Senate Indian Affairs Committee this week. A similar bill was also approved by the committee in 2006, only to be defeated by a 56-41 vote by the full senate. The Bush Administration Attorney General's office, while acknowledging that the current version of the bill addresses most of the practical concerns it had raised in response to the prior bill, still expressed objections to the bill as ancestry and race based legislation. Thoughtful op-eds and writings by Indian law profs on this subject might be timely now.

A link to the bill, as well as statements and video made at the May 3, 2007 hearing in the Committee can be found on the committee website here: