Scholarship

New Scholarship on San Carlos Apache Water Rights

Matthew L.M. Fletcher

Daniel Lee has published his note, “Statutes of Ill Repose and Threshold Canons of Construction: A Unified Approach to Ambiguity After San Carlos Apache Tribe v. United States” in the Seattle University Law Review.

Here is the abstract:

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and awarded significant water rights to private parties and other Indian tribes. In particular, this Note focuses on the Federal Circuit’s decision in 2011 that the San Carlos Apache Tribe could not seek damages against the United States for improperly diminishing the Tribe’s reserved water rights to the Gila River under the Decree because the court determined that the statute of limitations had run. This Note argues that the case was wrongly decided. It then proposes two new analytical devices to overcome the recent trend of courts denying remedies to tribes based on supposedly unambiguous language of treaties, statutes, and decrees.

Working Within the Constraints of Sherrill Laches

Kate Fort2 Comments

The decision in the Mohawk land claims case is an interesting and thoughtful example of a district court judge trying to carve out possible remedies in the face of the new (or Sherrill) laches line of cases (Sherrill, Cayuga, Oneida). We’ve long though that the district court judges who wrote hundreds of pages of opinions and spent years on these cases were not pleased with the relatively dismissive opinions of the Second Circuit, overturning their rulings with the ever changing target of new laches.

Assuming, as they must, that they will be overturned when they let any claim go through, the district court judges in these cases have written opinions that attempt to save portions of the claims. Though other similar decisions have been overturned (Oneida), Judge Kahn here attempts to distinguish between the claims, dismissing parts of the claim subject to Sherrill laches, and saving the parts that are not. He specifically mentions new laches as a “peculiar” application of laches to land claims, listing the inconsistencies which are now case law. At 4-5. The court doesn’t allow Defendants to argue laches as a blanket remedy to all of the claims. FN 7. He also points out that new laches is an exception to the usual rule that the United States is not subject to laches, rather than writing as if this has been the case all along. At 15. The opinion also has important language on judicial notice and Census data (though the comment about the highly paid expert was probably unnecessary, given that the Nation was facing a magistrate who wouldn’t accept their Census data, but would accept the State’s. Hiring an expert makes sense in the face of that kind of skepticism). At 24.

Comparing Onondaga, also written by Judge Kahn, with St. Regis Mohawk, another interesting point is the court is most interested in how the facts of the claims can be distinguished from the Sherrill line, rather than how requests for relief differ (Broadly: Sherrill, jurisdiction; Cayuga, money judgment; Oneida, possessory claim; Onondaga, declaratory judgment.). Attempting to work around the disruptive element of new laches by crafting a request for relief that is not disruptive does not work. The very claim is disruptive if the fact pattern is remotely similar.

Finally, and perhaps most importantly, Judge Kahn refuses to let new laches be the be all and end all to these claims. He writes:

That the Second Circuit in Cayuga may have in effect expanded the scope of Sherrill laches in no way leads the Court to conclude that laches should operate as a brightline rule that forecloses any possibility of a successful “ancient” Indian land claim. To conclude otherwise, as Defendants appear to urge the Court to do, would be to ascribe a broader and disturbingly anti-democratic meaning to the recent line of laches cases—that remedial causes of action specifically preserved by Congress may be vitiated in the courts by the categorical application of an equitable defense

At 30.

While it would be highly preferable to have is defense eliminated entirely, given the restraints the district court judges are operating under now, this case is a victory in that it at least acknowledges the fundamental inequity of new/Sherrill laches and continues to find ways to avoid its application.

Fletcher Interview in Prawfsblawg about being Cited by Supreme Court in Adoptive Couple

Matthew L.M. Fletcher

Doesn’t get any more meta than this.

Here.

Tribal Lending and the Consumer Financial Protection Bureau

Matthew L.M. Fletcher

Hilary B. Miller has published “The Future of Tribal Lending under the Consumer Financial Protection Bureau” in the ABA trade journal Business Law Today.

New Scholarship Arguing PL 280 is Unconstitutional

Matthew L.M. Fletcher

Kyle Conway has published “Inherently or Exclusively Federal: Constitutional Preemption and the Relationship Between Public Law 280 and Federalism” in the University of Pennsylvania Journal of Constitutional Law (SSRN link). Here is the abstract:

The basic principles of Indian-law jurisprudence often appear disconnected with basic principles of American constitutional law. Indian law, however, has a special significance to important issues of state and federal power. This Article seeks to build on the work of prior scholars who have sought to connect Indian law to American constitutional values.

Public Law 280 is a federal law that gives states control over certain aspects of Indian affairs that were traditionally within the scope of the federal government. This Article argues that Public Law 280 is unconstitutional under a doctrine of constitutional preemption. Constitutional preemption is grounded in the system of overlapping sovereignty that forms the structure of the Constitution and should be understood as prohibiting the federal government from delegating inherently and exclusively federal powers to the states. The power to manage Indian affairs is entrusted exclusively to the federal government, and Congress cannot constitutionally delegate it to the states.

The constitutional difficulties raised by Public Law 280 are particularly relevant in an era when issues of federalism are at the forefront of legal discussion. It is often accepted that courts may limit the federal government’s authority to exercise powers reserved to the states, but we should also take seriously the idea that courts may limit the states’ authority to exercise powers reserved to the federal government.

 

New Scholarship: “The Academic Achievement of American Indians”

Matthew L.M. Fletcher2 Comments

Stefanie Fischer and Christiana Stoddard will published “The Academic Achievement of American Indians” in Economics of Education Review.

Here is the abstract:

The academic achievement of American Indians has not been extensively studied. Using NAEP supplements, we find that the average achievement relative to white students resembles other disadvantaged groups. However, there are several differences. Family characteristics explain two times as much of the raw gap as for blacks. School factors also account for a larger portion of the gap than for blacks or Hispanics. The distribution is also strikingly different: low performing American Indian students have a substantially larger gap than high performing students. Finally, racial self-identification is more strongly related to achievement, especially as American Indian students age.

Continue reading →

Sarah Krakoff on Settler Colonialism, Natural Resources Law, and Indian Law

Matthew L.M. Fletcher1 Comment

Sarah Krakoff has posted “Settler Colonialism and Reclamation: Where American Indian Law and Natural Resources Law Meet” on SSRN. It’s forthcoming in the Colorado Natural Resources, Energy & Environmental Law Review. Here is the abstract:

Three hours east of Phoenix, Arizona, the Colorado River Indian Tribes (“CRIT”), a federally recognized tribe that includes over 3,700 enrolled members of Mohave, Chemehuevi, Navajo, and Hopi descent, occupies a reservation nearly 300,000 acres in size. The CRIT was one of five tribes to have its water rights confirmed in the landmark case of Arizona v. California, and therefore has senior rights to 719,248 acre-feet of Colorado River water, nearly one-third of Arizona’s allocation. How the CRIT came to be a single federally recognized tribe composed of members from four indigenous peoples located on lands that were a fraction of their aboriginal territory is both a federal Indian law story and a natural resources law story. The stories are two sides of a single coin, which is the currency of settler colonialism in the United States. The object of settler colonial societies was to clear the land of their indigenous populations to allow for nonindigenous settlement. In the U.S. context, American Indian law has often done the work of clearing the land, while natural resources law assures the successful occupation of that land by non-Indians. This Article delves into CRIT’s natural resources history, which serves as a reminder that public land and water law do not start from a blank slate. The distribution of land and water to non-Indians required first that those resources be wrested from Indian control. With that as the starting point, current debates about Indian water rights can be seen in their proper context, as measures of corrective justice that recognize indigenous peoples’ preexisting political, moral, and legal claims, rather than as special rights doled out to select minorities. Understanding tribal water rights this way also liberates them from static and limited notions of use, making them all the more relevant to the contemporary challenges of climate change and resource scarcity.

Highly recommended!

Scholarship on Using CERCLA to Save the Native Village of Kivalina

Matthew L.M. Fletcher

Robert J. Martin has published “The Village of Kivalina is Falling Into the Sea: Should CERCLA Section 9626(b) Be Available To Move the Village from Harm’s Way?” in the Barry Law Review.

Here is the abstract:

The Village of Kivalina, and other similarly situated Native Alaska villages, are in danger of falling into the sea. Regional climate change is melting the permafrost that acts as the foundation of their communities. Sea ice that once acted as a barrier during storm season today melts earlier, and erosion rates are increasing. Kivalina’s situation is further worsened by the threat of contamination from a nearby open dump. Without permanent relocation, Kivalina and its residents face imminent harm.
Congress has given the President authority to permanently relocate an Indian tribe or Alaska Native village under CERCLA Section 9626(b). This article proposes that the President exercise such authority to protect the health and welfare of Kivalina and its residents. In view of the longstanding trust obligation of the United States to Indian tribes and Alaska Native villages, which is embodied in treaties, statutes, executive orders and court decisions, the President should exercise his clear authority to protect the Village from harm.

New Scholarship on Indian Education, Child Welfare, and Juvenile Justice

Matthew L.M. Fletcher

Ryan Seelau has published “Regaining Control over the Children: Reversing the Legacy of Assimilative Policies in Education, Child Welfare, and Juvenile Justice that Targeted Native American Youth” (PDF) in the American Indian Law Review.

New Scholarship on Winters Rights

Matthew L.M. Fletcher

Jesse H. Alderman has posted his paper, “Winters and Water Conservation: A Proposal to Halt ‘Water Laundering’ in Tribal Negotiated Settlements in Favor of Monetary Compensation,” on SSRN. The final version of the paper appears in the Virginia Environmental Law Journal. Here is the abstract:

In the century since the U.S. Supreme Court, in Winters v. United States, granted Indian tribes reserved water rights, few tribes have received the promised delivery of water, while at the same time, the Department of Interior — the same agency tasked with a fiduciary duty to hold all tribal assets in trust — constructed massive, multibillion-dollar water projects without cognizance of senior Indian rights. The water transformed much of the West from arid desert to a green expanse of farmland and steel-and-mirrored urban centers with populations rivaling cities in the water-rich East. However, the pace of development has placed unsustainable strain on the groundwater aquifers and surface waters of the parched Interior West, all while untold millions of acre-feet of water are still owed to Indian tribes under Winters. As state courts and the U.S. Supreme Court have proven hostile to Indians, tribes have increasingly settled their Winters claims through negotiation with states, cities, and other junior appropriators. The benefits of these negotiated settlements have proven illusory. While tribes turn their “paper rights” into “wet water,” they are often shortchanged, and bound by agreement to market water to competing municipal economies off-reservation. The linchpin of most negotiated settlements is federal investment in otherwise politically unpalatable water delivery projects, made possible by the purported necessity of settling senior Indian claims. This form of exchange might critically be called “water laundering.” This Article argues that negotiated settlements are bad public and environmental policy. As an alternative to those negotiated settlements, this Article proposes that tribes should instead seek financial compensation for their inchoate Winters rights by suing the federal government for a century of abject breach of its fiduciary duty to hold water in trust for the benefit of tribes. This suit should be modeled on the recent Cobell class action litigation, where Congress ratified a $3.4 billion settlement with the Departments of Interior and Treasury for similar mismanagement of Indian allotment lands. A class action approach would allow the tribes to receive the maximum financial value, and vindicate rights long neglected by the federal fiduciary, all while averting further overconsumption of the West’s perilously scarce water resources.