Kronk Warner & Tanana on McGirt and Energy Development

Matthew L.M. Fletcher

Elizabeth Ann Kronk Warner and Heather Tanana have posted “Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond” on SSRN.

The abstract:

The decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision of the last 100 years, as it affirmed the reservation boundaries of the Muscogee (Creek) Reservation – an area long considered by many to be under Oklahoma’s jurisdiction. Yet, following release of the Court’s decision, the outcry from the oil and gas industry was almost instantaneous, as roughly twenty five percent of Oklahoma’s oil and gas well and sixty percent of its oil refineries are impacted by the Court’s decision. Additionally, the territory affected by the Court’s decision also includes pipelines crucial to the successful operation of the nationwide Keystone XL pipeline. While the Court was clear that its holding was limited to criminal jurisdiction under the Major Crimes Act, the decision nonetheless has broader implications for Indian country, including natural resource development and regulatory framework. Because the oil and gas industry will now have to work with tribes and the federal government instead of favorable state officials, industry officials decry the Court’s decision as being detrimental to the industry. But what exactly will be the impact of the Court’s McGirt decision on the oil and gas industry, and the natural resources development in Indian country more broadly? While the full impacts of the Court’s decision are only beginning to unfold, this Article seeks to answer the questions left hanging by the Court’s decision as they relate to traditional energy development. This Article explores the future impacts of the McGirt decision on traditional energy development. The second Part of the article summarizes the legal background that governs oil and gas development in Indian country. Part three provides an in-depth analysis of McGirt—first, describing its predecessor, Sharp v. Murphy, followed by an explanation of McGirt and its holding. The article concludes by discussing future implications of McGirt, including what it means for oil and gas development going forward as well as collateral effects. The article constitutes an important scholarly contribution as it answers important questions left open after the Court’s decision and explains how the Court’s decision has broader implications for Indian country and natural resource development generally.

Ann Tweedy on the Impact of the McGirt Decision

Matthew L.M. Fletcher

Ann Tweedy has posted “Has Federal Indian Law Finally Arrived at ‘The Far End of the Trail of Tears’?”, forthcoming in the Georgia State University Law Review, on SSRN.

Here is the abstract:

This essay examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision likely signals a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The essay shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The essay concludes with the hope that Justice Gorsuch’s majority opinion will foster predictability in the wildly unstable area of disestablishment and diminishment jurisprudence, as well as in other facets of federal Indian law.

D.C. Federal Court Instructs Sho-Ban Tribe to Seek Idaho Federal Court Review of Claims the U.S. Violated a Trust Breach Settlement Agreement

Matthew L.M. Fletcher

Here are the materials in Shoshone-Bannock Tribes of the Fort Hall Reservation v. Bernhardt (D.D.C.):

84 Settlement Agreement

90 Tribe Motion to Clarify

95 Federal Opposition

98 Reply

103-1 Tribe Motion to Enforce Settlement Agreement

104 Federal Opposition

105 Reply

109 DCT Order

And here are related materials in Shoshone-Bannock Tribes of the Fort Hall Reservation v. United States (D. Idaho):

21 Amended Complaint

41 US Motion to Dismiss

59 DCT Order Issuing Stay

Tenth Circuit Decides Hackford v. State of Utah [nonmember Indian traffic ticket]

Matthew L.M. Fletcher

Here is the unpublished opinion in Hackford v. State of Utah:

Opinion

Briefs:

Hackford Brief

State Brief

Uintah Brief

This Hackford has been before the Tenth Circuit several times before, here, here, and here.

Stephanie Barclay & Michalyn Steele on Indian Sacred Sites

Matthew L.M. Fletcher

Stephanie H. Barclay & Michalyn Steele have posted “Rethinking Protections for Indigenous Sacred Sites,” forthcoming in the Harvard Law Review.

Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access indigenous peoples face.

Scholars concerned about government failure to protect indigenous sacred sites have generally agreed that the problem stems from the unique nature of indigenous spiritual traditions as being too distinct from non-indigenous religious traditions familiar to courts and legislators and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to indigenous religious exercise and other non-indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes of longstanding philosophical debates about the nature of coercion itself—a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism—the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-indigenous religious exercise. The failure to ask this same question about voluntarism for indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-indigenous religious practices, and a much narrower conception of coercion, in the tradition of Robert Nozick, when it comes to indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when coercion is viewed clearly, tribal members and indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act (RFRA) much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more—rather than less—robust protection of indigenous sacred sites.

Highly recommended!!!

Elizabeth Reese on the Exclusion of Tribal Law from “American Law”

Matthew L.M. Fletcher

Elizabeth Reese has posted “The Other American Law,” forthcoming from the Stanford Law Review, on SSRN.

Here is the abstract:

American legal scholarship focuses, almost exclusively, on state and federal law. However, there are an additional 574 federally recognized tribal governments within the United States whose laws are largely ignored. This article brings to the fore the exclusion of tribal governments and their laws from our mainstream conception of “American law” and identifies this exclusion as both an inconsistent omission and a missed opportunity. Tribal law should be no less “American law” than federal and state law. Tribal law is also made, enforced, and followed by American citizens, and tribal governments have a distinct place as a sub-sovereign within the American system of overlapping sovereigns. Nor is it clearly less important, as tribes govern millions of Americans and as much land as California. And yet, tribal law is excluded from our shared conception of “American law”—and thereby our research projects, classrooms, and even conversations. This exclusion perpetuates the “othering” of tribal law and governments and harmful present day misunderstandings or invisibilities for both Indian people and their governments. Tribal governments were previously delegitimized and described as “lawless” in order to legitimize legal theories of conquest. But tribal law is real, and it is time to end its marginalization. Moreover, tribal law is vast, varied, and can be innovative. As demonstrated by the three examples in this piece, tribal governments struggle with the same kinds of problems that the other American sovereigns face, and their similarities, differences, successes, failures, innovations, etc. can inform other American sovereign’s work or public law questions more broadly. Omitting tribal law from American legal scholarship is not only a troubling inconsistency, it is a missed opportunity to tap a potentially valuable resource—a disservice to the search for good government ideas. Tribal law belongs in the mainstream study of American law and legal systems. This article places it there.

Highly recommended!