Wednesday, April 30, 2008

Additional reference to Nero vs Cherokee Nation

No. 91-3561; United States Court of Appeals,Eighth Circuit (1993)

Because the tribe's specific right of self-government would be affected, the general rule of applicability does not apply. Accord Cherokee Nation, 871 F.2d at 938 ("ADEA is not applicable because its enforcement would directly interfere with the Cherokee Nation's treaty-protected right of self-government").4 See also Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457, 1463 (10th Cir.1989) (plaintiffs could not assert claims under 42 U.S.C. §§ 1981 and 2000d because they would affect the tribe's right to self-governance in a purely internal matter); Donovan v. Navajo Forest Products Indus., 692 F.2d 709, 712 (10th Cir.1982) (OSHA held inapplicable to tribe in part because enforcement "would dilute the principles of tribal sovereignty and self-government recognized in the treaty"); but contra Smart v. State Farm Ins., 868 F.2d 929, 935 (7th Cir.1989) (the "argument that ERISA will interfere with the tribe's right of self-government is overbroad"); Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir.1985) (right of self-government is too broad to defeat applicability of OSHA). Therefore, we find that the ADEA, as a statute of general applicability, does not apply to the Band absent a clear and plain congressional intent.

(If the Cherokee Nation has a treaty protected right of self-government and treaty rights as to the US government having a trust responsibility to the Cherokee Nation to provide education and health care - seems the Congressional Black Caucus is in violation of other treaty obligations when they seek through legislation to deny these benefits to the Cherokee Nation-seems they're asking the Cherokee Nation to do what they themselves are not doing)

Clear and plain congressional intent:

In determining whether such clear and plain intent exists, we are guided by United States v. Dion, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986).

Congress' 1962 action, we conclude, reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle, except pursuant to permit, is inconsistent with the need to preserve those species. We therefore read the statute as having abrogated that treaty right.

(interesting case - this court held that congress abrogated a treaty right with later legislation - another solution to the current situation rather than terminating the Cherokee Nation - just pass legislation recognizing the Freedmen as their own Indian Tribe and then they can deal directly with the US government or DOI - why hurt a lot, when you can help a few? oh, that's too simple, my mistake again, that might resolve the situation. Why resolve a long standing festering problem when you can show you have *the power* This is never going to get resolved without letting the court make a decision - this same situation will just rear it's ugly head again and again, so why not just resolve it?)