American Indian Law Review New Issue — Vol. 44, No. 2


Current Issue: Volume 44, Number 2 (2020)



The Court of Indian Appeals: America’s Forgotten Federal Appellate Court
Chief Judge Gregory D. Smith and Bailee L. Plemmons



Special Feature

Elizabeth Reese on McGirt: “Welcome to the Maze: Race, Justice, and Jurisdiction in McGirt v. Oklahoma”

In the University of Chicago Law Review Online, here. An excerpt from this outstanding essay:

The morning of July 9th, American Indian tribal citizens and non-Indian residents of eastern Oklahoma woke up and experienced a similar shock. The United States Supreme Court, in an opinion authored by Justice Neil Gorsuch, announced that the Muscogee (Creek) Nation’s reservation boundaries had never been disestablished.

The Supreme Court’s 5–4 decision in McGirt v. Oklahoma implies, though does not explicitly hold, that eastern Oklahoma is, was, and always had been within the undiminished boundaries of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nation’s reservations. The ruling was shocking and confusing for both groups of American citizens because they were experiencing a bit of what “justice” is like for the other group for the very first time.

That Thursday morning gave American Indian people a glimpse of what it must be like not to be “the Indians.” On that day, American Indians weren’t reduced to a metaphorical Red Sea, always parting to make way for White Americans’ interests. Instead, they were able to win despite those interests and without the indignities that have become the norm in the Supreme Court’s Indian law opinions.

That same morning gave the non-Indians of eastern Oklahoma a glimpse of part of the Indian experience: waking up to helpless confusion about what the United States government has just done to your lands and rights, followed by the even greater problem of trying to understand the confusing jurisdictional rules that have been the status quo in Indian Country for a long time.

At times like this I think that Lady Justice must have a sense of humor.

Environmental Law Review Symposium on 50th Anny of Sohappy/Belloni Decision


The Belloni Decision: A Foundation for the Northwest Fisheries Cases, the National Tribal Sovereignty Movement, and an Understanding of the Rule of Law

Charles Wilkinson

Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.

We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of the two key bodies of law and policy—classic Indian Law dating back to John Marshall and the new ideas just beginning to remake public wildlife law and policy. We can fairly doubt that Judge Boldt and the Supreme Court would have ruled as they did if Judge Belloni had not written his profoundly insightful and brave opinion. Further, the Belloni decision reached beyond Indian treaty rights per se, energizing the emerging broad and fundamental movement for Indian tribal sovereignty that has revitalized Indian Country. Even more broadly, the decision led the way in the long and difficult chain of events that finally allowed the beauty of the rule of law to rise above the contentious and seemingly insolvable disputes over Indian fishing rights in the Pacific Northwest.

The Belloni Decision and its Legacy: United States v. Oregon and its Far-Reaching Effects After a Half-Century

Michael C. Blumm. & Cari Baermann

Fifty years ago, Judge Robert Belloni handed down a historic treaty fishing rights case in Sohappy v. Smith, later consolidated into United States v. Oregon, which remains among the longest running federal district court cases in history. Judge Belloni ruled that the state violated Columbia River tribes’ treaty rights by failing to ensure “a fair share” to tribal harvesters and called upon the state to give separate consideration to the tribal fishery and make it a management priority co-equal with its goals for non-treaty commercial and recreational fisheries. This result was premised on Belloni’s recognition of the inherent biases in state regulation, despite a lack of facial discrimination.

The decision was remarkable because only a year before, in Puyallup Tribe v. Department of Game, the U.S. Supreme Court seemed to accord considerable deference to state regulation of tribal harvests (which it would soon clarify and circumscribe). Instead of deference, the Belloni decision reinstated burdens on state regulation that the Supreme Court had imposed a quarter-century earlier, in Tulee v. Washington, but seemed to ignore in its Puyallup decision. The directive for separate management was prescient because otherwise, tribal harvests would remain overwhelmed by more numerous and politically powerful commercial and recreational fishers.

Judge Belloni eventually grew tired of resolving numerous conflicts over state regulation of the tribal fishery, calling for the establishment of a comprehensive plan, agreed to by both the state and the tribes, to manage Columbia Basin fish harvests. Eventually, such a plan would be negotiated, implemented, and amended over the years. Today, the Columbia River Comprehensive Management Plan is still in effect a half-century after the Belloni decision, although the district court’s oversight role is now somewhat precariously perched due to statements by Belloni’s latest successor. Nonetheless, the plan remains the longest standing example of tribal–state co-management in history and a model for other co-management efforts. The Belloni decision was the first judicial recognition of the importance of the tribal sovereignty in regulating reserved rights resources. This Article examines the origins, effects, and legacy of the Belloni decision over the last half-century.

Beyond the Belloni Decision: Sohappy v. Smith and the Modern Era of Tribal Treaty Rights

Monte Mills

Indian tribes and their members are leading a revived political, legal, and social movement to protect the nation’s natural resources. In doing so, tribes and their allies employ many effective strategies but core to the movement are the historic promises made to tribes by the United States through treaties. Tribes are asserting treaty-protected rights, which the United States Constitution upholds as the supreme law of the land, to defend the resources on which they and their ancestors have relied for generations. Those claims have resulted in significant legal victories, igniting a broader movement in favor of tribal sovereignty and securing a prominent and perpetual tribal presence in the movement and on the ground.

Given the strength of this modern movement and the centrality of treaty rights to its success, it is hard to believe that, just two generations ago, those rights faced seemingly existential threats. Notwithstanding bedrock Supreme Court precedent from the first half of the 1900s recognizing the supremacy of Indian treaties, tribal members exercising the rights those treaties guaranteed were under attack in the Pacific Northwest and the Great Lakes, with armies of state wildlife rangers and law enforcement arresting tribal members for not following state laws and regulations. Then, in 1968, the Supreme Court cut against its earlier solicitude for tribal treaty rights by opening the door for broad state power to establish laws, rules, and regulations that could govern tribal members engaged in treaty-reserved activities. Facing escalating harassment from state authorities, the Court’s endorsement of state priorities seemed to leave little room for the meaningful exercise of treaty rights as the tribes and tribal members themselves saw fit.

But, with his 1969 decision in Sohappy v. Smith, Judge Robert Belloni began to reverse the course of that time and, in doing so, opened the modern era of tribal sovereignty over natural resources. Judge Belloni’s approach to reaching that momentous decision recognized the permanence and supremacy of tribal treaties while also accounting for the ongoing exercise of state sovereignty. Rather than approach the balance of those two interests as a zero-sum proposition, however, Judge Belloni sought and provided practical guidance pursuant to which states and tribes could work together to ensure their continued coexistence. While that coexistence would demand higher burdens and more limitations on the state’s exercise of authority, Judge Belloni also had the foresight to provide a judicial forum for resolving conflicts over those burdens and limitations and urged the parties to reach cooperative agreements beyond the courtroom doors. Judge Belloni’s approach and the Sohappy decision laid the foundation for state and federal courts struggling to balance state authority and tribal treaty rights. This Article traces the legacy of the Sohappy decision across litigation in the Great Lakes region, where members of the Chippewa Tribes fought to continue their time-honored and treaty-reserved practices, various states sought to regulate those activities, and judges relied on Judge Belloni’s wisdom and insight to reach sustainable solutions.

Cultural Linguistics and Treaty Language: A Modernized Approach to Interpreting Treaty Language to Capture the Tribe’s Understanding

Sammy Matsaw, Dylan Hedden-Nicely, & Barbara Cosens

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one’s identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are land-based. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge and from the power to make decisions within their homelands has proven a detriment to the land, waterways, flora and fauna, and human beings. Nowhere would tribal peoples have agreed to our own destruction, it is and has been a forced hand. This Article explores the changing interpretation of the U.S. Supreme Court canon to construe treaties with Native American tribes as the tribe would have understood them, and why mere translation of Native language to English fails to capture a Native understanding. Through the juxtaposition of western legal analysis and the powerful voice of a Native scientist, this Article illustrates how difficult and yet how necessary it will be to bridge that divide if this powerful western nation is to fulfill its sacred promises to Native people. As a contribution to the Issue on the fiftieth anniversary of United States v. Oregon, this Article looks to the future of federal jurisprudence on the interpretation of treaties with American Indians and envisions one in which reconciliation through an understanding of different worldviews is possible.

How Much Evidence Should We Need to Protect Cultural Sites and Treaty Rights?

Jeffrey B. Litwak

Too often, the administrative and judicial systems require tribes to reveal too much about their cultural site and treaty rights before agencies and courts are willing or “able” to protect them. Tribes must make a difficult decision whether to reveal information about their cultural site and treaty rights practices, which, when made public, leads to damage, vandalism, and personal safety concerns. To prevent these effects, agencies and courts can, and should, consider these concerns in determining how much detail is needed to constitute “substantial evidence.” This Article gives examples from the practice of the Columbia River Gorge Commission, a regional land use planning agency created by an interstate compact between Oregon and Washington, which, by its compact, must engage with the four Columbia River Treaty Tribes and protect cultural resources and treaty rights.

Stanford Law Review Online Publishes “Indian Lives Matter — Pandemics and Inherent Tribal Powers”

Fletcher’s paper, “Indian Lives Matter — Pandemics and Inherent Tribal Powers,” is now available online (PDF).

Law Review Article Published Entirely in ʻōlelo Hawaiʻi (Hawaiian)

Sabrina Rose Kamakakaulani Gramberg has published, in the Asian & Pacific Law & Policy Journal, an article written entirely in ʻōlelo Hawaiʻi (Hawaiian).

Here is a link to a press release (May 13, 2020) from Univ. of Hawaiʻi about it.

Here is a link to the article.

On page 38, Sabrina gives a short description of the article in English that states:

Enshrined in Hawaiʻi’s constitution, the legal foundation for Hawaiian language rights awaits statutory implementation. In the gap between legal justification and practical operation, speakers of Hawaiʻi’s indigenous language are once again being compelled to express themselves in English to access essential government programs. The State of Hawaiʻi has a role and responsibility in redressing the government actions that forced Hawaiʻi’s language shift. The reluctance of elected officials to develop a comprehensive plan to operationalize the constitution stands in direct contravention to the intent and mandate of Article XV, Section 4 of the Hawaiʻi State Constitution. As an official but critically endangered language, a statutory infrastructure for Hawaiian language access would support revitalization efforts and provide long- awaited mechanisms to obtain translation and interpretation services statewide.

And here is a link to Ka Huli Ao’s blog post about the article.


New Student Scholarship on Jurisdiction and Gender-Based Violence against Native Women

Emily Mendoza has published “Jurisdictional Transparency and Native American Women” in the California Law Review Online.

Here is the abstract:

While lawmakers have long known that Native American women experience gender-based violence at higher rates than any other population, lawmakers historically have addressed these harms by implementing jurisdictional changes: removing tribal jurisdiction entirely, limiting tribal jurisdiction, or returning jurisdiction to tribes in a piecemeal fashion. The result is a “jurisdictional maze” that law enforcement officers, prosecutors, and courts are unable to successfully administer to bring perpetrators to justice. This Article is the first to identify what I call “jurisdictional transparency”—or clear, easily ascertainable rules governing courts’ jurisdiction—as a core value of the American legal system and will argue that a lack of jurisdictional transparency over criminal prosecutions in Indian country contributes to the excessive rates of domestic violence, sexual assault, and rape against Native American women. Because arguments for or against sovereignty are divisive and often put a swift end to productive dialogue, this has often led to the layering of more jurisdictional rules on top of the current system. Jurisdictional transparency, on the other hand, advocates an approach that is both more fundamental and more attainable: allocating criminal jurisdiction in Indian country in a way that can be easily determined at the outset of a case.

The Article begins by examining jurisdictional rules in other contexts while highlighting the federal courts’ continuous demand for clear jurisdictional rules in the interest of judicial efficiency and public access to the courts. With this backdrop, the Article then illuminates the discrepancy between such transparency demands and the opaque jurisdictional rules in Indian Country, using key case examples to demonstrate the system’s failures. Finally, the Article proposes a solution that is reflected in numerous facets of the law: jurisdictional transparency. Such a solution has a procedural guise capable of penetrating a polarized political climate while lifting the opacity that has prevented thousands of Native American women from accessing justice.

Jim Grijalva on the Gap in Indian Country Water Quality Protection

James Grijalva has posted “Ending the Interminable Gap in Indian Country Water Quality Protection,” forthcoming in the Harvard Environmental Law Review, on SSRN.

The abstract:

Tribal self-determination in modern environmental law holds the tantalizing prospect of translating Indigenous environmental value judgments into legally enforceable requirements of federal regulatory programs. Congress authorized this approach three decades ago, but few tribes have sought primacy even for foundational programs like Clean Water Act water quality standards, contributing to potentially serious environmental injustices. This article analyzes in detail EPA’s recent attempt at reducing tribal barriers — reinterpreting the Act as a congressional delegation of tribal jurisdiction over non-Indians — and the early indications its results are insignificant. The article then proposes an unconventional solution ostensibly at odds with tribal self-determination: promulgation of national, federal water quality standards for Indian country. EPA’s Indian Program actually began this way, as an interim step awaiting tribes’ assumption of federal regulatory programs. Thirty years later, the seemingly interminable regulatory gap in Indian country water quality protection remains, and EPA has a legal and moral responsibility to close it.