Bethany C. Sullivan & Jennifer L. Turner on Carcieri

Bethany C. Sullivan and Jennifer L. Turner have published “Enough Is Enough: Ten Years of Carcieri v. Salazar” in the Public Land & Resources Law Review. Here is the abstract:

Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending the land-into-trust process and requiring tribes (and Interior) to spend scant resources to establish statutory authority for trust land acquisitions, a burdensome task that had previously been straight forward. In addition, Carcieri has complicated, if not prevented altogether, trust acquisition for tribes who face difficulty in making the requisite jurisdictional showing. 

This Article provides the first comprehensive analysis of the last ten years of Indian law and policy that have unfurled from the Supreme Court’s decision. It describes how Carcieri has been weaponized by states, local governments, citizens’ groups, individuals, corporations, and even other tribes, to challenge the exercise of tribal sovereignty through the acquisition of tribal lands, and, at times, the very existence of Indian tribes. This Article details the litigation that has since ballooned, illustrating the dangerous scope creep of Carcieri, while categorizing and evaluating the underlying claims. It also looks to the future, and concludes that, while unlikely, a universal, clean congressional fix is the only real solution. The last ten years of litigation, hearings, and never-ending debate demonstrate that Carcieri is not a constructive or appropriate framework for resolving larger policy questions about the land-into-trust process. Finally, the Article ends by providing practice tips for tribes navigating the current Carcieri landscape.

Public Land & Resources Law Review’s Public Lands Law Conference on October 12-13

Bridging Divides: Energy, Environment, and Empowerment in a New Era
37th Biennial Public Lands Law Conference, October 12-13, 2017

The Alexander Blewett III School of Law at the University of Montana’s Public Land & Resources Law Review will be hosting its 37th Biennial Public Land Law Conference, Bridging Divides: Energy, Environment, and Empowerment in a New Era, in beautiful Missoula, Montana, October 12-13, 2017 at the law school.  The conference’s goal is to bring relevant and differing advocacy positions together within the current evolving political and legal climate in hopes of bridging divides and finding common vision to manage energy and environmental resources. Areas of focus will include balancing energy development with fish and wildlife needs, preserving indigenous interests in energy development, and addressing energy development within land use planning. Registration information can be found at http://scholarship.law.umt.edu/pllsymposium/.

On October 12, we will be taking a field trip, Old and New Legacies in the Upper Clark Fork Basin, to the Northwestern Energy Control Center in Butte, the microgrid tour in Deer Lodge, and Milltown State Park. Featured speakers will be at each site. Conference keynote speakers will be:

  • Daniel Jorjani: U.S. Department of Interior Principal Deputy Solicitor discussing Federal Lands: Current Policy Directions and Opportunities for Bridge Building. Room 201, Thursday at 5:00 PM.
  • Charles Wilkinson: Distinguished Professor University of Colorado School of Law discussing Collaborative Management of Public Lands and Natural Resources. Room 201, Friday at 12:00 PM.
  • Scott Slovic: Distinguished Professor University of Idaho discussing Language Matters: Environmental Controversy and the Quest for Common Ground. Room 201, Friday at 2:45 PM.

Conference panels will be discussing: Water, Wind, and WildlifeEnergy, Infrastructure, and Culture; and The Theory and Practice of Sustainable Development.

Public Land & Resources Law Review Call for Papers

The Public Land & Resources Law Review is currently accepting submissions for potential publication in the upcoming issue, our 38th volume.  Helmed by students at the Alexander Blewett III School of Law at the University of Montana, the Public Land & Resources Law Review serves as a vital resource providing high quality articles on issues relevant to public land, natural resources, environmental, and federal Indian law for practitioners and scholars across the country.  The Public Land and Resources Law Review accepts articles and abstracts for consideration from students, practitioners, and law school faculty members.

If you are interested in submitting an article, please contact Maresa Jenson, Publication Editor, at maresa.jenson@umconnect.umt.edu, by February 15, 2017.  Articles will be considered on a rolling basis. We look forward to working with you to publish your scholarship.

Sincerely,

Editors of the Public Land & Resources Law Review

Gingold and Pearl: Tribute to Eloise Cobell

Dennis M. Gingold and M. Alexander Lowther (Pearl) have published “A Tribute to Eloise Cobell” in the Public Land & Resources Law Review.

The abstract:

Cobell v. Salazar, the landmark class-action case, and its settlement arise out of a painful period in American history. For more than a century, the government’s abuse of individual Indian trust beneficiaries has been documented in various government reports and has been debated in Congress, but nothing that Congress did or said stopped egregious breaches of trust committed by the executive branch. The United States Court of Appeals for the D.C. Circuit noted that “[t]he General Accounting Office, Interior Department Inspector General, and Office of Management and Budget, among others, have all condemned the mismanagement of the Individual Indian Money trust accounts over the past twenty years.” Indeed, the government exploited the Individual Indian Trust as if those funds were its own, wholly disregarding both its statutory and common law trust obligations and the needs and interests of hundreds of thousands of impoverished Indians.

No one did anything to stop that abuse until Elouise Cobell stood up and told the government, “no more.” This Article relates the actions in equity taken by Elouise Cobell to compel the United States to conduct a full historical accounting of all IIM Trust funds, to correct and restate IIM account balances, to fix broken Trust management systems, and to undertake other critical trust reform measures to ensure prudent Trust Management, and examines its remarkable achievements.