Michelle Bryan and Kekek Stark have posted “Restoring the Full Waterway Bundle (Part I): A Reckoning for Indigenous Title to Submerged Lands” on SSRN.

Highly recommended. Any work, especially great work like this, that connects Indigenous philosophies to federal Indian law is valuable work.

Here is the abstract:

It is time for federal submerged lands law to face a day of reckoning. This reckoning is necessary because assumed state sovereignty of submerged lands lacks a legal basis in basic property law, the Constitution, the federal trust relationship, and Indigenous law. Instead, it stems from antiquated rulings formulated, in Justice Gorsuch’s words, within the “atmosphere” of colonialism. In many instances, the historical record reflects that Tribes had neither ceded aboriginal title to such beds when a particular state was created, nor had Congress clearly abolished such title, as the law requires. 

Reckoning is a strong word, but so is the authority and opportunity that comes with sovereign bed ownership. For many tribes, their creation stories, ceremonies, food sources, economies, environmental health, and cultural touchstones center upon specific waters believed to be included within their homelands, hunting and fishing grounds, and gathering places. But reckoning is not the end of the story. In the spirit of reconciliation, this article provides a reassessment of Indigenous title to submerged lands and argues that these lands are spaces of common governance in which the three sovereigns—federal, tribal, and state—share authority to manage a vital resource on which all peoples depend. 

Part I begins with a discussion of why submerged lands ownership is fundamental to tribal culture and sovereignty. Part II then confront the atmosphere of colonialism that has excluded tribes from water spaces. We summarize the flawed legal test from United States v. Holt State Bank—the case most often used to determine Indian title to the submerged lands of navigable waterways—and explain why the test is both unlawful and inadequate to fulfill the United States’ trust obligations to tribes.  In Part III, we propose a reckoning—a legal test better aligning with the Court’s newer jurisprudence in cases like Minnesota v. Mille Lacs Band of Chippewa Indians and Herrera v. Wyoming. Ultimately, we advocate for the joint sovereign enterprise of placekeeping—caretaking the cultural, historical, ecological, economic, and social well-being of these spaces that serve as lifeways for us all.  Through a corrected legal test to submerged lands, we will begin rebuilding the waterway “bundle” as an integrated legal whole.