Blackfeet Tribe

Fracking, Tribal Sovereignty, the Montana Test, and the Turtle Mountain Band

Matthew L.M. Fletcher4 Comments

The Turtle Mountain Band of Chippewa Indians recently passed a resolution banning fracking on reservation lands. Fracking is incredibly dangerous to the environment (and if Elizabeth Kolbert is writing about it, you can be sure it’s worse than that).

So imagine a scenario where a tribe (like Turtle Mountain) bans fracking, but an oil extraction company purchases fee land within the reservation boundaries and begins fracking. Is this going to pass the Montana test, assuming no written consent under Montana 1? So does it meet the political integrity, economic security, and health/welfare subjectivity of Montana 2? It seems like it must, if this news coverage is to be believed:

Exploration companies are injecting large volumes of water, sand and chemicals into rock formations up to a mile beneath the Blackfeet Indian Reservation in attempts to loosen embedded oil — sometimes using more than a million gallons of fluid per well.

State, tribal and federal regulators of oil development say there has never been an instance of the practice — called hydraulic fracturing — contaminating groundwater in Montana.

Yet Jack Gladstone, an enrolled member of the Blackfeet Tribe and a well-known singer and songwriter, is worried that “fracking” could taint the tribe’s “clean, fresh, cold water.”

He supports more disclosure of the chemicals used in the frack jobs, which he described as an “uncontrolled experiment.”

“And we will live with the consequences of our actions,” Gladstone said.

Potential impacts to drinking water associated with hydraulic fracturing are coming under increased scrutiny nationwide as the federal Environmental Protection Agency begins a study at 350 oil and gas wells in Louisiana, Pennsylvania, North Dakota, Texas and Colorado.

So back to Montana 2. Assuming the above conditions, and a court concludes that Montana 2 is met, and tribal jurisdiction over these hypothetical nonmembers is present, what are the limitations on tribal jurisdiction? Could a tribe simply enjoin the operation (a regulatory/judicial taking)? Could a tribe exercise the power of eminent domain? Seems like these are questions tribes should be asking.

Montana Supreme Court Decides In re Estate of Big Spring — Exclusive Tribal Court Jurisdiction over On-Rez Probate

Matthew L.M. Fletcher

Here is the opinion: Big Spring Opinion.

An excerpt:

Julie Big Spring (Julie) and William F. Big Spring III (William) appeal the order of the Ninth Judicial District Court, Glacier County, denying their motion to dismiss for lack of subject matter jurisdiction. They challenge the District Court’s assumption of jurisdiction over the probate of the estate of their father, William F. Big Spring, Jr. (Big Spring), an enrolled member o f the Blackfeet Tribe whose estate property was located within the exterior boundaries of the Blackfeet Indian Reservation at the time o f his death. We reverse the District Court’s order and hold that the Blackfeet Tribal Court has exclusive jurisdiction over the probate of Big Spring’s estate (the Estate).

Here are the briefs.

New Cert Petition re: Tribal Court Jurisdiction (Sorta)

Matthew L.M. Fletcher

Here is the petition in Glacier Electric Cooperative, Inc. v. The Estate of Scott Sherburne: Glacier Electric Cert Petition.

Questions presented:

[T]he question presented is whether preclusion of the issue of tribal subject matter jurisdiction to hear a case bars the federal courts from considering whether Respondents may enforce in tribal court the relief they were granted there – a substantial money judgment – despite the lack of due process at the trial.

The Ninth Circuit’s summary disposition is here.

Billings Gazette Special Report on Tribal Sovereignty

Matthew L.M. Fletcher1 Comment

From the Billings Gazette:

When the last of the bison herds disappeared in the early 1880s, Indian nations on the Northern Plains were reduced to poverty.

In Montana, where there are no high-flying gambling operations and big population centers, economic conditions for American Indians have been slow to change. Unemployment is rampant, and business opportunities are scarce.

Through various acts of Congress, tribes are contracting with the federal government to provide essential services to their people. But federal funds, static for years, are shrinking. Tribes are taking on more responsibilities than ever for the welfare of their people and are pursuing economic opportunities to support their efforts.

Continue reading →