North Dakota Law Review

North Dakota Law Review Article on Missouri River Basin Compact

Matthew L.M. Fletcher

Jeffrey T. Matson has published “Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider an Inter-Sovereign Approach to Accommodate Federal and Tribal Interests in Water Resources” in the North Dakota Law Review.

The abstract:

In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of Indian reserved water rights and tribal sovereignty. As States and Tribes contemplate a rebalancing of power in the MRB, it is essential that any water resources management solution provide a forum in which affected States, Tribes, and the Federal government might work together in pursuit of interconnected interests. Accordingly, it is time for stakeholders to think beyond the dualistic “federal-interstate” compact arrangement and seriously consider a pluralistic “federal-interstate-tribal” approach – even if Indian reserved water rights are not yet quantified. Although such a tripartite approach is a departure from traditional compacting practice, the great weight of Indian reserved water rights warrants tribal representation on any commission charged with implementing a twenty-first century MRB water resources compact. Further, it would be unrealistic to expect a federal commissioner to represent tribal interests until such time as rights are quantified, given the Federal government’s conflict of interest in operating the System for other consumptive users. This Article concludes that the Federal government’s interests in flood protection, navigation, and national security, and the Tribes’ interests in protecting reserved water rights and tribal sovereignty, warrant an inter-sovereign approach whereby power is shared equally among signatories to this compact.

Ray Cross on Fracking and the Fort Berthold Reservation

Matthew L.M. Fletcher

Probably the most important article on fracking in Indian country so far.

Raymond Cross has published “Development’s Victim or Its Beneficiary?: The Impact of Oil and Gas Development on the Fort Berthold Indian Reservation” in the North Dakota Law Review.

Judge William Zuger: Critique of Montana

Matthew L.M. Fletcher

Standing Rock Sioux Tribe chief judge William Zuger has published his paper, “‘Members Only’: A Critique of Montana v. United States“, in the North Dakota Law Review.

Paul Spruhan on the Canadian Indian Free Passage Right

Matthew L.M. Fletcher

Paul Spruhan (Navajo Nation AG’s Office) has published, “The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law” in the North Dakota Law Review. Paul continues his long string of outstanding articles in legal history and Indian law. This one should be of special interest to immigration specialists as well.

Here is an excerpt:

[T]his article reviews the tangled legal history of the Canadian Indian free passage right to answer the question why such a racial restriction continues to exist today. Part II-A discusses the origins of Indians’ free passage right in treaties between the United States and Great Britain, and a congressional statute passed in 1928. Part II-B, through an analysis of cases and administrative policies, shows how officials struggled to define “Canadian Indian” under the 1928 act, conceptualizing Indian status at first as a “political” status defined by Canadian law and then as a “racial” status defined by American law. Part II-C then discusses the adoption of the blood quantum restriction as part of a comprehensive overhaul of American immigration law in 1952, and the apparent reasons for why Congress adopted a half-blood rule.
In section III, the article discusses problems arising after 1952 for Canadian Indians, like Peter Roberts, who must prove their amount of Indian blood to invoke their passage right. Section IV discusses the implications of the explicit racial restriction for federal Indian law and immigration law. It notes that both are premised on congressional “plenary power,” historically outside constitutional review by the United States Supreme Court. It discusses how the Supreme Court, since the 1970s, has reviewed the constitutionality of Indian legislation under equal protection principles, but has not done so for immigration legislation premised on race. Contrasting the current state of racial legislation under Congress’s powers to legislate in Indian affairs with its power to legislate concerning immigration, the article suggests that the blood quantum restriction for Canadian Indian free passage may present an opportunity to distinguish definitions in federal Indian law that use blood quantum and to challenge prior precedent exempting immigration legislation from judicial scrutiny.

Charles Carvell on North Dakota Indian Water Rights

Matthew L.M. Fletcher

Charles Carvell, Director of the Division of Natural Resources & Indian Affairs in the North Dakota Attorney General’s Office, has published “Indian Reserved Water Rights: Impending Conflict or Coming Rapprochement Between the State of North Dakota and North Dakota Indian Tribes, in the North Dakota Law Review.

Here is an excerpt:

This article summarizes the foundation of North Dakota water law, that is, the prior appropriation doctrine. It then reviews the path by which non-Indians took homesteads on North Dakota Indian reservations, which in turn explains, first, the significant modern-day presence of non-Indian residents and non-Indian-owned land on reservations; second, the state’s effort to control some on-reservation water and its use; and third, it explains a fundamental source of tension between tribes and the state. The article recounts tribal assertions of jurisdiction over on-reservation water resources and their adamant rejection of North Dakota water law. It then reviews the 1908 Winters decision and its development during the past few decades, with an emphasis on the standard by which Indian reserved water rights are often measured, that is, practicably irrigable acres. How this standard might apply on North Dakota reservations, and if it should apply, are also addressed. The article concludes with an overview of the relationship between the tribes and the state regarding water.

Amber Halldin on Tribal Civil Responses to Non-Indian Violence Against Women

Matthew L.M. Fletcher

Amber Halldin (my former student at UND!) has published “Restoring the Victim and the Community: A Look at the Tribal Response to Sexual Violence Committed by Non-Indians in Indian Country through Non-Criminal Approaches” in the North Dakota Law Review. An excerpt:

This article will examine how tribes respond to non-Indians that commit sexual violence against Native people in Indian country. Jurisdictional issues create particular problems for tribes to remedy the violence committed in their communities, because tribes are often forced to rely on non-criminal prosecution remedies. Through the use of traditional tribal punishments and newly developed tactics, Indian tribes are working towards better protecting their members despite federal law barriers.