Final Version of Fletcher & Singel’s “Indian Children and the Federal-Tribal Trust Relationship” Now Available

Fletcher and Singel will publish “Indian Children and the Federal-Tribal Trust Relationship” in the Nebraska Law Review.

Complaint in Pawnee Nation lawsuit for Earthquake Damage caused by Wastewater Injection

Here is the complaint filed in the Pawnee Nation Tribal Court in Pawnee Nation of Oklahoma v. Eagle Road Oil LLC, et al.

On Friday, March 3, the Pawnee Nation sued 27 companies that operate wastewater disposal wells used in fracking operations in and near Pawnee, Oklahoma.  The complaint alleges that the actions of the defendants have contributed to earthquakes and resulting damage to the Pawnee Nation of Oklahoma, and it includes claims based on strict liability, negligence, private nuisance, and trespass. The Tribe seeks compensatory and punitive damages.

Pawnee Nation sues several oil and gas companies in Tribal Court for quake damage

We noted last November that the Pawnee Nation sued the Dept. of Interior in federal district court to challenge the approval of federal oil and gas leases on tribal lands here.

Today, several news agencies here, here, and here report that the Pawnee Nation has sued 27 oil and gas companies in the Pawnee Nation Tribal Court for damage caused by earthquakes.  Earthquakes have been associated with wastewater injection practices used in conjunction with hydraulic frackingLast September, the Pawnee Nation suffered damage to historic buildings due to a 5.6 magnitude earthquake.

We’ll post a copy of the complaint as soon as it becomes available.

 

Law Students: Enter the LSAC 2017 Diversity Writing Competition to win $5000

This year’s LSAC Diversity Writing Competition topic is “Why Pipeline Programs Targeting Students from Underrepresented Racial and Ethnic Backgrounds are Essential to the Future of the Legal Profession.”  Current JD candidates are invited to submit papers addressing this topic.  The deadline for submissions is Friday, March 31, 2017, and LSAC will award three $5000 prizes to the best paper submitted by a 1L, 2L, and 3L/4L.  In addition, one winner will have a chance to publish their entry in the Journal of Legal Education.

We know there are law students following Turtle Talk who could write excellent papers on this topic. LSAC’s rules for submissions are here.

EPA publishes Revised Interpretation of Clean Water Act TAS Provision

On May 16, the EPA published a final revised interpretation of the Clean Water Act’s TAS provision in the Clean Water Act, concluding that the Treatment as State provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to section 518(e)’s eligibility requirements.  This revised interpretation eases the burden for tribes applying for TAS status under the Act, removing the hurdle of having to demonstrate inherent regulatory authority under the Montana test in order to apply for TAS status.  The revised interpretation is likely to reduce the time and resources required to obtain EPA approval of TAS applications, particularly for tribes with lands owned by non-Indians within their reservation boundaries.

The Final Interpretive Rule published in the Federal Register is here.

The EPA’s Response to Public Comments on the Revised Interpretation here.

Continue reading

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

Indian Law Job Announcements

I added a new page that provides an overview for finding Indian law job announcements on Turtle Talk and elsewhere on the internet.  To access it, click on “Indian Law Job Announcements” in the black bar immediately below our Turtle Talk banner at the top of the webpage.  The page offers advice for first and second year law students seeking summer clerkships as well as third year law students and law graduates seeking permanent employment.

 

New Article by Lorinda Riley on the Role of Politics in Federal Recognition

Lorinda Riley has published “When a Tribal Entity Becomes a Nation: The Role of Politics in the Shifting Federal Recognition Regulations,” in the American Indian Law Review.

Here is a description excerpted from the article’s introduction:

This article explores how each presidential administration has both shaped and bent the federal recognition regulations to fulfill its political priorities. By merging a quantitative analysis of each administration’s federal recognition record and the political realities that each administration faced, this study provides a rare inquiry into the political nature of the recognition process. First, this article examines the regulatory history of federal recognition, including a detailed discussion of various versions of the regulation and accompanying guidance published by the Department of the Interior (DOI). Then the article provides an overview of how politics play into the regulatory process and the implementation of regulation. Finally, the article re-visits each administration’s actions related to federal recognition, and considers how each administration has utilized these regulations to serve its own political priorities.