Scholarship

Judith Royster on Conjunctive Management of Reservation Water Resources

Matthew L.M. Fletcher

Judith Royster has posted a paper forthcoming in the Idaho Law Review titled, “Conjunctive Management of Reservation Water Resources: Legal Issues Facing Indian Tribes.”

Here is the abstract:

Conjunctive management is the integrated management of all water sources as a single system. As complicated as conjunctive management of state water resources is, things become even more complicated when conjunctive management involves tribal water resources as well. On virtually all Indian reservations, two governments exercise regulatory authority over some of the water allocation and use decisions. Those allocation and use decisions are based on different laws and different legal principles. To complicate matters further, surface water decisions may be made on a different basis than groundwater decisions and, even if the same legal regime determines both, the decisions may not be integrated with one another.

Against that background, Indian tribes face substantial legal impediments to conjunctive management of reservation waters. In particular, three aspects of federal and state law frustrate effective tribal participation in conjunctive management. First, Indian tribes are, in many instances, barred by federal action from creating comprehensive, enforceable water codes. Without a water code, management of any kind, much less conjunctive management, becomes problematic. Second, the reserved rights doctrine does not include a clear, universal right to groundwater. Instead, the determination of whether tribes have rights to groundwater as well as surface water is left to individual court decisions and settlement acts, with a resulting wide variation among tribes in groundwater rights. Because conjunctive management is the integration of surface and groundwater regimes, the variability of tribal rights to groundwater hampers comprehensive approaches. And third, the lack of conjunctive management in some states can impact tribal reserved rights to water. While states have long been legally obligated to protect tribal rights to surface water in their allocation of state surface water rights, protecting tribal reserved rights to all water sources requires states to take account of tribal rights in the states’ allocation of groundwater as well.

“Trust and Trash”: New Scholarship on Dumping on Tribal Lands

Matthew L.M. Fletcher

Elizabeth B. Forsyth has published “Trust and Trash: Why EPA Needs a Flexible Approach to Illegal Dumping on Tribal Lands” in the Harvard Law and Policy Review.

Here is the intro:

Imagine a Native American nation situated on less than 1,000 acres in a rural area. Seventy percent of the hundred tribal members living on the land are unemployed; their primary income sources are government assistance and small amounts of revenue from tribally-owned businesses. The waste hauler for the nearby county refuses to service tribal land. With self-haul distances of eighty miles to the nearest transfer station, and many members without easy access to a car, the tribal members have little option but to dump their trash in the woods.

Recognizing the threat to health and the environment that the accumulating trash piles are causing, the tribal government approaches the United States Environmental Protection Agency (EPA) for funds to clean up the trash and to start a tribally-run trash collection program. EPA grants the tribe $100,000 to clean up the five dump sites and $100,000 for a “pilot” collection and recycling program.

A year later the dump sites are cleaned up and the collection program is used by all members of the tribe. But as the grant period draws to a close, a problem arises: although the collection program brings in modest amounts of revenue from the tribal members themselves, the program is not self-sustaining. Rising fuel costs, long haul distances, and lack of economies of scale mean that without raising collection rates beyond what members would be able to pay, the program is doomed. The EPA grant project officer apologizes to the tribe. Although EPA can continue to give the tribe grants for dump cleanup, beyond pilot projects EPA cannot fund ongoing waste collection for tribes. The tribe is on its own.

This article will argue that EPA’s current approach, paying for the cleanup of illegal dumps and for solid waste planning on tribal land but refusing to pay for long-term solid waste collection,[2] is misguided.[3]This article will show that, at least for some tribes, the result of paying for dump cleanup rather than trash collection is less desirable from both an environmental and an economic perspective. Part I of this article will examine the unique legal position of small tribes and why funding ongoing collection may be the most environmentally sustainable solution. Part II will evaluate the costs to EPA of cleaning up dump sites on tribal land against the costs of strategically funding ongoing solid waste collection for small tribes. Part III will evaluate the potential reasons behind EPA’s reluctance to pay for ongoing collection. Finally, Part IV will offer an alternative funding model.

New Book on California v. Cabazon Band of Mission Indians

Matthew L.M. Fletcher1 Comment

Ralph A. Rossum has published, “The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians,” as part of Landmark Law Cases and American Society series from the University of Kansas Press. 

Here is the press’s blurb:

When the Cabazon Band of Mission Indians—a small tribe of only 25 members—first opened a high-stakes bingo parlor, the operation was shut down by the State of California as a violation of its gambling laws. It took a Supreme Court decision to overturn the state’s action, confirm the autonomy of tribes, and pave the way for other tribes to operate gaming centers throughout America.

Ralph Rossum explores the origins, arguments, and impact of California v. Cabazon Band of Mission Indians, the 1987 Supreme Court decision that reasserted the unique federally supported sovereignty of Indian nations, effectively barring individual states from interfering with that sovereignty and opening the door for the explosive growth of Indian casinos over the next two decades.

Rossum has crafted an evenhanded overview of the case itself—its origins, how it was argued at every level of the judicial system, and the decision’s impact—as he brings to life the essential debates pitting Indian rights against the regulatory powers of the states. He also provides historical grounding for the case through a cogent analysis of previous Supreme Court decisions and legislative efforts from the late colonial period to the present, tracking the troubled course of Indian law through a terrain of abrogated treaties, unenforced court decisions, confused statutes, and harsh administrative rulings.

In its decision, the Court held that states are barred from interfering with tribal gaming enterprises catering primarily to non-Indian participants and operating in Indian country. As a result of that ruling—and of Congress’s subsequent passage of the Indian Gaming Regulatory Act—tribal gaming has become a multibillion dollar business encompassing 425 casinos operated by 238 tribes in 29 states. Such enormous growth has funded a renaissance of reservation self-governance and culture, once written off as permanently impoverished.

As Rossum shows, Cabazon also brings together in one case a debate over the meaning of tribal sovereignty, the relationship of tribes to the federal government and the states, and the appropriateness of having distinctive canons of construction for federal Indian law. His concise and insightful study makes clear the significance of this landmark case as it attests to the sovereignty of both Native Americans and the law.

“Some view Cabazon as an emphatic ruling supporting tribal sovereignty, while others see it as a deeply compromised decision that elevated state government’s role in internal native affairs. Rossum deftly situates the case historically, legally, and culturally, and persuasively argues that this is one of the more important decisions ever handed down by the High Court.”—David E. Wilkins, author of American Indian Sovereignty and the U.S. Supreme Court

“Rossum’s well researched book hits all the crucial topics and deals comprehensively with a host of complex issues in a clear, concise, and interesting manner. I wholeheartedly endorse it.”—Alexander Tallchief Skibine, S.J. Quinney Professor of Law, University of Utah

RALPH A. ROSSUM is Salvatori Professor of American Constitutionalism at Claremont McKenna College and author of Antonin Scalia’s Jurisprudence, also from Kansas.

Yale Law Journal Publishes Pamela Karlan’s Review of Laughlin McDonald’s Voting Rights in Indian Country Study

Matthew L.M. Fletcher

Lightning in the Hand: Indians and Voting Rights

Written by Pamela S. Karlan, [View as PDF]
120 Yale L.J. 1420 (2011).

American Indians and the Fight for Equal Voting Rights

By Laughlin McDonald

Norman, OK: University of Oklahoma Press, 2010, pp. 347. $55.00.

Indian Law Symposium (Partially) in Villanova Law Review

Matthew L.M. Fletcher

The Stories We Tell, and Have Told, About Tribal Sovereignty: Legal Fictions At Their Most Pernicious
Hope M. Babcock
803 – Download/View

Sovereignty in the Age of Twitter
Donald L. Doernberg
833 – Download/View

Reconciling the Sovereignty of Indian Tribes in Civil Matters With the Montana Line of Cases
Douglas B. L. Endreson
863 – Download/View

The Inevitability of Federal Sovereign Immunity
Gregory C. Sisk
899 – Download/View

Sovereign Litigants: Native American Nations in Court
Catherine T. Struve
929 – Download/View

Angela Riley on Indians and Guns

Matthew L.M. Fletcher

Angela Riley has posted the abstract of  what looks to be a fascinating paper titled “Indians and Guns” on SSRN. Here is the abstract:

In this article, I seek to fill a hole in existing legal scholarship by detailing the untold story of the relationship of Indians to guns in a set of crucial law-making moments: at the drafting of the U.S. Constitution and ratification of the Second Amendment; in 1924 as the Indian Citizenship Act was passed; in 1968 when Congress passed the Indian Bill of Rights; and today, where tribal governments still make their own laws and govern beyond the scope of the U.S. Constitution in Indian country. I examine and explain the unique positioning of Indian nations vis a vis the Second Amendment and lay out the contemporary implications of that undefined relationship. I provide an understanding of gun control and ownership as linked to Indian sovereignty and a complex dynamic of racial hierarchy and social control and show how, though developing in some ways parallel to the status of African-Americans and guns, Indian gun rights – largely because of complexities associated with Indian national sovereignty and peoplehood – diverted in crucial ways, both in the colonial period and today. Mark Tushnet has written that “[t]he Second Amendment is one of the arenas in which we as Americans try to figure out who we are.” I focus here on the corollary to that position, concluding that the history and, indeed, the current reality of Indians and guns is, in many respects, a reflection of a long-standing understanding of Indians and Indian nations as the un-‘we’, as peoples existing consistently outside the American polity.

Preliminary Results of New Study of Certiorari and Indian Law

Matthew L.M. Fletcher1 Comment

While workshopping what would become my tenure paper, Factbound and Splitless, a fairly direct critique of the certiorari process in relation to Indian law cases, at various law schools and with law professors around the nation, I became aware that former Supreme Court clerks were split on the persuasiveness of my critique (I am not a former clerk). Former clerks who were part of the so-called cert pool were usually not persuaded by my argument that the Supreme Court discriminated against tribal interests at the cert stage (and especially my secondary point that cert pool memos and clerks’ opinions had much influence on the Court), while former clerks not part of the cert pool were more interested (and in some cases overwhelmingly supportive) of my thesis. The big breakthrough for me, I think (though it wasn’t anything I could use in the article), was an admission by a former cert pool clerk who seemed skeptical of my claims as a general matter. After my talk was over most people had left the room, however, she conceded that as a clerk, she had treated tribal cert petitions as being about as important as prisoner habeas petitions. Only when the tribe (same with the prisoners) had won below did she spend additional effort on the cert pool memo because (and I am paraphrasing) tribes weren’t supposed to win.

Key to a study of certiorari is the axiomatic notion that the Court usually (though not always, to be sure) grants cert with an eye toward reversing the lower court. Some 70 percent of Supreme Court decisions are reversals, giving significant weight to this understanding. In short, persuading the Court to grant cert (for most petitioners) is more than half the battle toward prevailing, especially given that fewer than one in twenty cert petitions are granted.

Since the 1986 Term, the Supreme Court has granted review in 68 Indian law cases. [Warning, this is a preliminary study, and the numbers below are subject to change, but not significantly.]

  • The Court has granted 14 out of 21 petitions filed by the United States (67 percent)
  • The Court has granted 33 out of 117 petitions filed by states and state subdivisions (28 percent)
  • The Court has granted 13 out of 151 petitions filed by private, non-Indian parties (8 percent)
  • The Court has granted 7 out of 347 petitions filed by tribal interests (tribes and individual Indians) (2 percent) [six of these grants was accompanied by an invitation brief, an amicus brief, or other brief by the United States recommending a grant — in other words, only 1 tribal petition has been granted without the government’s consent]

In cert oppositions, the same trends hold:

  • When state interests are in opposition to a cert petition, the Court granted 7 out 157 petitions (4 percent)
  • When private parties are in opposition to a cert petition, the Court granted 7 out of 78 petitions (9 percent)
  • When tribal interests are in opposition to a cert petition, the Court granted 45 out of 217 petitions (21 percent)

Continue reading →

New Scholarship from Ryan Dreveskracht

Matthew L.M. Fletcher

Here are two new articles from Ryan Dreveskracht:

“Economic Development, Native Nations,and Solar Projects,” published in the Journal of Energy and Development: 34-2 Dreveskracht

And

“Tribal Court Jurisdiction and Native Nation Economies: A Trip Down the Rabbit Hole,” in the National Lawyers Guild Review: nlg

Bob Miller on Christianity, the Doctrine of Discovery, and Jamestown

Matthew L.M. Fletcher2 Comments

Robert Miller has posted his paper, “Christianity, American Indians, and the Doctrine of Discovery,” on SSRN. It is published in REMEMBERING JAMESTOWN: HARD QUESTIONS ABOUT CHRISTIAN MISSION, Amos Yong, Barbara Brown Zikmund, eds., Pickwick Publications, 2010.

The abstract:

The European countries that explored and colonized North America utilized the international law Doctrine of Discovery to claim the sovereign, property, and human rights of Indigenous peoples. Discovery was developed primarily in the fifteenth century by Spain, Portugal, England, and the Church and was designed to control the acquisition of non-European lands. The assumed superiority of European religions and civilizations played a major role in justifying Discovery. Starting with the fifteenth century papal bulls and the later English Royal charters, the primary goals of colonization were alleged to be “propagating Christian Religion” and bringing “human civility” to the “pagan,” “heathen,” “Infidels and Savages” who “yet live[d] in Darkness and miserable ignorance of the true Knowledge and Worship of God.” The United States Supreme Court expressly adopted the Doctrine of Discovery in 1823 in Johnson v. M’Intosh and expressly relied on Christian religion and Euro-American civilization to justify its decision. The goals of, and the justifications for, Discovery continued to be part of United States Indian policy and Manifest Destiny until nearly the end of the twentieth century.

Bob Miller on Tribal Constitutions

Matthew L.M. Fletcher

Robert Miller has posted his paper, “Tribal Constitutions and Native Sovereignty,” on SSRN.

Here is the abstract:

More than 565 Indigenous tribal governments exercise extensive sovereign and political powers within the United States today. Only about 230 of the native communities that created these governments, however, have chosen to adopt written constitutions to define and control the political powers of their governments. Many observers would no doubt ask how a government can function without a written constitution to guide its formation and operation, and how the rights of citizens can be defined and protected without a written constitution. This essay addresses these questions and many more concerning American Indian and Alaska Native tribal constitutions. It is clear that constitutionalism is nothing new to Indigenous peoples in North America. This fact is demonstrated by the Iroquois Confederacy of the Haudenosaunee people who have governed themselves under an unwritten constitution for many hundreds of years, by the Cherokee Nation who apparently created the first written tribal constitution in 1827, by the many dozens of tribal governments who adopted written constitutions from 1837-1930, and by the hundreds of Indigenous governments who adopted constitutions under the federal Indian Reorganization Act of 1934. This essay examines these facts and more, and addresses whether modern day tribal constitutions adequately serve the needs of native communities and help these communities and their political entities to exercise and protect their sovereignty.