Boston College Environmental Affairs Law Review

New Student Scholarship on the Environmental Impact of Federal Recognition of American Indian Nations

Matthew L.M. Fletcher

The Boston College Environmental Affairs Law Review has published “People of the Outside: The Environmental Impact of Federal Recognition of American Indian Nations” (PDF).

Here is the abstract:

American Indians interact with land and the environment in a manner that is distinct from non-native peoples. They view natural resources as an integral part of their way of life. As a result, Indian tribes desire to implement policies and programs that will protect their natural resources. In order to receive federal assistance for these policies and programs, however, a tribe must be federally recognized. The Duwamish tribe, which resides near Seattle, Washington, is not a federally recognized tribe. Despite years of fighting for recognition, the Duwamish cannot take part in the improvement of their tribal region’s air and water quality. Alternatively, the Forest County Potawatomi Community is federally recognized. The tribe has utilized its federal status to redesignate its reservation lands under the Clean Air Act, which brings stricter environmental regulations on and around the reservation. As long as the Bureau of Indian Affairs’ criteria for federal recognition continue to be arbitrarily and haphazardly enforced, unrecognized tribes like the Duwamish will continue to lack the power to address the environmental issues in their tribal region, in contravention of their fundamental beliefs and way of life.

New Scholarship on Karuk Tribe of California v. U.S. Forest Service

Matthew L.M. Fletcher

The Boston College Environmental Affairs Law Review has published “Endangered Precedent: Interpreting Agency Action and the Duty to Consult Under Section 7 of the ESA in Light of Karuk.”

Here is the abstract:

Following the designation of the West Coast coho salmon as a threatened species under the Endangered Species Act, and the ensuing designation of the Klamath River system in the Pacific Northwest as critical habitat for the species, the indigenous Karuk Tribe challenged the U.S. Forest Service’s mining permit approval practices in Karuk Tribe of California v. U.S. Forest Service. Under Section 7 of the ESA, an agency must consult with one of two outside resources in instances where the agency’s actions “may affect” an endangered population. In reversing the district court’s denial of summary judgment on the Tribe’s ESA claim, the Ninth Circuit held that the Forest Service’s approval of mining applications without consultation constituted discretionary agency action that may affect the region’s coho salmon population. This Comment argues that this broad interpretation of agency action accurately reflects Section 7’s requirements. Furthermore, because this standard is clear, courts should apply this broad interpretation in future cases to avoid inconsistency and protect the environment in accord with congressional intent.

New Student Scholarship on Tribal Authority to Zone Nonmember Lands under the Montana 1 Exception

Matthew L.M. Fletcher

Alexis Applegate has published her note, “Tribal Authority to Zone Nonmember Fee Land Using the First Montana Exception: A Game of Checkers Tribes Can Win” (PDF), in the Boston College Environmental Affairs Law Review.

The abstract:

The modern Congress and executive branch generally recognize that American Indian tribes retain their inherent sovereign authority over people and property within Indian Country unless Congress previously acted to limit that authority. The Supreme Court, however, has incrementally departed from this recognition of inherent sovereign authority by implementing limits on tribal authority over nonmembers and nonmember land. These impediments began with the divestiture of tribal jurisdiction over crimes committed by nonmembers and expanded to limitations on tribal authority to assert civil regulatory and adjudicative jurisdiction over nonmembers. The Supreme Court first applied this theory of implicit divestiture on limitations of tribal civil regulatory authority in the landmark case Montana v. United States. This limitation on tribal sovereignty continues to severely impact the ability of tribal governments to implement successful zoning and comprehensive land use plans withinreservation boundaries. This Note accepts the status of the law for the time being and offers advice and suggestions for tribes to use the language of these decisions to develop consensual relationships with nonmember fee land owners in the creation of comprehensive zoning plans.

Student Paper on Gaming and Environmental Law

Matthew L.M. Fletcher

The Boston College Environmental Affairs Law Review has published “Betting the Rancheria: Environmental Protections as Bargaining Chips Under the Indian Gaming Regulatory Act,” by Matthew Murphy. You can access the article here, but it begins on page 171 of the pdf, which takes some time to download. Here is the abstract:

In 2005, the State of California and the Big Lagoon Rancheria American Indian Tribe reached an agreement whereby the tribe agreed to forego development plans for a casino on environmentally sensitive lands in exchange for the right to build a casino in Barstow, California. In January 2008, the Department of the Interior denied the Rancheria’s land-into-trust application for land in Barstow based on the Department’s newly issued “commutable distance” memorandum. This denial represents a missed opportunity to allow California and the tribe to cooperate in fashioning a workable tribal-state compact. The Department should abandon the guidance memorandum and allow tribes to pursue off-reservation gaming in appropriate instances where the proposed development enjoys political support at the local level. In exchange, states should be afforded greater deference under the Indian Gaming Regulatory Act to achieve some level of regulatory control to address the off-reservation impacts of casino development.