Natural Resources Journal

New Scholarship on #LandBack and Federal Public Lands

June 27, 2023Matthew L.M. Fletcher

Audrey Glendenning, Martin Nie & Monte Mills have published “Some Land Back: The Transfer of Federal Public Lands to Indian Tribes since 1970” in the Natural Resources Journal.

The abstract:

Federal public lands in the United States were carved from the territories of Native Nations and, in nearly every instance, required that the United States extinguish pre-existing aboriginal title. Following acquisition of these lands, the federal government pursued various strategies for them, including disposal to states and private parties, managing lands to allow for multiple uses, and conservation or protection. After over a century of such varied approaches, the modern public landscape is a complex milieu of public and private interests, laws and policies, and patchwork ownership patterns. This complexity depends on—and begins with—the history of Indigenous dispossession but subsequent developments have created additional layers of complication. Recently, a broad social movement, captured succinctly by the social media hashtag “#Landback” and including some American Indian tribes, has begun calling for the restoration of the nation’s lands to Native ownership, including the transfer of all public lands to tribal hands. This article aims to contextualize and assess the more recent history of the transfer of federal public lands to Indian tribes, which has often taken the form of the United States transferring such lands into trust ownership for the benefit of a particular tribe. The article is the first comprehensive collection and analysis of 44 statutes enacted by Congress from 1970 to 2020 that transfer ownership interests in public lands to federally-recognized Indian tribes. These statutes are bookended by the return of Blue Lake to Taos Pueblo in New Mexico (1970) and the return of the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana (2020). Analysis of these laws surfaces common themes and provisions related to the political dynamics of such congressional actions and the terms of post-transfer tribal or federal management. In particular, the article relies on four primary case studies to provide background, context, and detail in illustrating these themes : (1) Blue Lake on the Carson National Forest to Taos Pueblo, (2) the Western Oregon Tribal Fairness Act, (3) Chippewa National Forest land to the Leech Lake Band of Ojibwe in Minnesota, and (4) the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana. These examples are representative of the larger catalog of transfer statutes and demonstrate the variation and complexity associated with each individual transfer situation. Hopefully, this first-ever collection of these laws will provide a practical grounding and depth of understanding for those considering or advocating for “#Landback.” More broadly, these examples and the common themes that tie them together raise important questions about the historical and continuing patterns of public land ownership and control.

Stephen Greetham on Tribal-State Water Planning

April 18, 2018Matthew L.M. Fletcher

Stephen Greetham has published “Water Planning, Tribal Voices, and Creative Approaches: Seeking New Paths Through Tribal-State Water Conflict by Collaboration on State Water Planning Efforts” in the Natural Resources Journal.

New Scholarship on Tribal-State Cannabis Compacting

April 10, 2018April 10, 2018Matthew L.M. Fletcher

Matthew Ramirez has published “New Mexico Tribal Cannabis: Policy, Politics, &
Guidance for Government-to-Government Cooperation in State-Tribal Cannabis Compacting” in the Natural Resources Journal. Here is the abstract:

The purpose of this article is three-fold. First, it aims to provide a systematic review of international, United States, state, and federal Indian law and policy surrounding cannabis cultivation, possession, and use in Indian Country. Second, it argues that the 2017 New Mexico tribal medical cannabis bills (SB 345 & HB 348), which were introduced in the first regular session of the New Mexico State Legislature and would have permitted the state to enter into intergovernmental agreements (or compacts) with tribes who choose to implement the state’s medical cannabis program on tribal lands, contained legal vulnerabilities likely to hinder their effectiveness if passed into law. Third, and as a result of this legal and political environment, this article serves as a tribal cannabis policy resource for New Mexico legislators and as a proposal of model legislation and compact terms for the drafting of effective tribal medical cannabis legislation and state-tribal cannabis compacts. Part I provides a historical and legal overview of international and United States federal controlled substances law and policy. Part II explores the issues arising in federal Indian cannabis law and regulation, including: state criminal jurisdiction over non-Public Law 280 tribal lands, state taxation in Indian Country, tribal sovereign immunity, and state-tribal dispute resolution. Part III covers New Mexico cannabis law, including a discussion of the state medical cannabis regulatory apparatus and policy analysis of the 2017 New Mexico tribal medical cannabis bills. Part IV closely analyzes the pros and cons of the 2017 New Mexico tribal medical cannabis bills and provides recommendations for future effective tribal medical cannabis legislation and compact drafting. Finally, Part V puts forward a model tribal medical cannabis bill and state-tribal cannabis compact terms reflecting the legal conclusions drawn herein, which may serve as constructive guidance in a future legislative session or compact negotiations between New Mexico and the Indian nations, tribes, and pueblos within the state.

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Richard Hughes on Pueblo Water Rights

March 23, 2017Matthew L.M. Fletcher

Richard W. Hughes has published “Pueblo Indian Water Rights: Charting the Unknown” in the Natural Resources Journal, Winter 2017.

Here is the abstract:

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve this elusive goal. Of the first six cases, filed half a century ago, three ended in negotiated settlements and none of them has yielded a definitive ruling on the nature or measure of Pueblo rights. Of the three cases filed since then, only one is in active litigation on the Pueblo rights issue, but that case may finally lead to a substantive ruling. Part II discusses the few rulings that have been issued in these cases so far relative to Pueblo water rights, and examines the distinctive nature of the issues that are presented by the unique circumstances of the Pueblos’ history and landholdings. The article notes that the ultimate determination of the nature and measure of Pueblo rights could have dramatic consequences for any effort to adjudicate rights on the mainstem of the Upper and Middle Rio Grande.

Jeannette Wolfley on the Return of Natives to National Parks

February 18, 2016February 17, 2016Matthew L.M. Fletcher

Jeanette Wolfley has published “Reclaiming A Presence in Ancestral Lands: The Return of Native Peoples to the National Parks” in the Natural Resources Journal.

Here is the abstract:

For Native peoples, sacred sites and other traditional cultural properties are of critical importance to the preservation of their culture, society, and overall tribal sovereignty. Often these traditional cultural resources are part of present day national park landscapes. Today, tribes have unprecedented opportunities to reclaim a presence on their aboriginal lands, and in turn the National Park Service has an opportunity to ensure that parks remain a sanctuary for the practice of native traditions by accommodating and prioritizing native interests in the implementation of Indian policies and government-to-government obligations. This Article provides an overview of the tribal-NPS relationship, a discussion of the National Park Service Indian policies, and the application of trust obligations to accommodate tribal interests in the national parks. This Article advocates that the National Park Service should prioritize tribal interests to enable tribal peoples to access aboriginal lands where timehonored traditions and practices are celebrated and life is renewed.

New Scholarship on Jicarilla Apache Nation’s Water a Rights Brokering

February 13, 2015Matthew L.M. Fletcher

Here:

The Promise of Indian Water Leasing: An Examination of One Tribe’s Success at Brokering Its Surplus Water Rights
Justin Nyberg 181

After reaching water rights settlements, a number of Native American tribes find themselves with rights to more water than their reservations or pueblo communities presently need. As climate change exacerbates drought conditions in the western United States and demand for water increases, some tribes have leased these surplus water rights to public and private, non-Indian, users. Theoretically, this could be a boon for tribes, although the extent of the economic impact of water leasing is difficult to assess without an examination of each individual water lease. This paper attempts to illustrate the economic impact of Indian water rights leasing anecdotally, by examining the leasing efforts of one particularly successful tribe, the Jicarilla Apache Nation in northern New Mexico.

New Scholarship on Arizona v. California (1963)

May 8, 2013Matthew L.M. Fletcher

Lawrence J. MacDonnell published Arizona v. California Revisited in the Natural Resources Journal last fall. Here is the abstract:

The U.S. Supreme Court’s 1963 decision in Arizona v. California profoundly influenced uses of Colorado River basin water in those two states and throughout the basin. This article takes an in-depth look at this litigation, the decision, and its consequences. It argues the decision should be limited to the issues directly decided as the basin states and Mexico now consider ways to deal with a diminished water supply.