New VAWA Bill Introduced in the Senate

On Wednesday, Senator Joni Ernst (R-Iowa) introduced a version of the Violence against Women Act bill that she sponsored. The new VAWA bill attempts to significantly erode tribal sovereignty in the name of “defending civil rights” by eliminating the exhaustion of tribal remedies, forcing an over-broad application of the U.S. Constitution in tribal courts, and providing a cause of action for defendants to sue tribes for civil rights violations.

This excerpt from the recent FMC Corp. v.  Shoshone-Bannock Tribes, — F.3d —-, 2019 WL 6042469 *22 (9th Cir. 2019), encompasses exactly why this bill is misguided in its attempts to abrogate tribal sovereignty:

“Making good on these due process guarantees, nearly five decades of tribal cases applying ICRA show that tribal courts protect the rights of both member and nonmember litigants in much the same way as do federal and state courts.” Norton, 862 F.3d at 1250. “[T]ribal courts often provide litigants with due process that ‘exceed[s] the protections offered by state and federal courts.’” Id. (second alteration in original) (citing Matthew L.M. Fletcher, American Indian Tribal Law 325 (2011))…[o]ur own experience in reviewing tribal court decisions is consistent with the findings of these studies. Tribal courts, like all courts (including our own), make mistakes. But, contrary to the contention of FMC, tribal courts do not treat nonmembers unfairly.

A copy of the bill is here.

The HuffPost ran an article on how this proposed VAWA legislation harms tribes on Thursday, November 21, 2019. That article is here.

New Scholarship on Fracking Near Indian Country

Heather Williams and Hillary M. Hoffman have posted “Fracking Near Indian Country: The Federal Trust Relationship, Tribal Sovereignty, and the Right to Clean Water,” forthcoming in the Wyoming Law Review, on SSRN.

Here is the abstract:

The tortured history of the federal and state governments’ relationships with Native American tribes has created a legal structure in which Native American people are, quite frequently, the recipients of non-native waste generated off of native lands. Traditionally, this has taken the form of solid waste, but in recent years, it has grown to include nuclear waste and wastewater generated by hydraulic fracturing, otherwise known as “flowback fluids”, or “produced water.”

Over the last two years, produced water from four different hydraulic fracturing operations was found being discharged onto dry land and into “streambeds covered in white crystals,” on the Wind River Reservation in central Wyoming. In addition to the open dumping of these fluids, there was also visible oil and foam sheen. Pollution events like these are the result of a regulatory exemption under the Resource Conservation and Recovery Act (“RCRA”), commonly referred to as the “livestock loophole.” The livestock loophole, created in 1979, allows oil and gas operations to discharge hazardous waste fluids generated from fracking operations onto reservation land if they are consumed by livestock and wildlife, or used for agricultural purposes. The EPA, which regulates RCRA and has a fiduciary responsibility toward Indian Tribes, has not set maximum levels for many compounds used in the drilling process, and uses antiquated data to regulate toxics that have been capped. Further, industrial “trade secrets” prohibit the disclosure of additional toxics in drilling fluids under intellectual property laws, making it impossible to regulate pollution limits for surface waters under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES).

The policy behind the livestock loophole is complex. Reports of gushing streams of toxic fracking fluids on reservation land reek of environmental injustice, yet tribes, as sovereign governments, are willing, able, and informed participants in the solicitation, installation, and placement of non-native waste on their own tribal lands.

Several questions arise out of the issues faced by the Wind River tribes: Is the federal policy to dump fracking fluids in Indian country consistent with its federal trust obligation, and its requirement under RCRA to protect human health and safety from toxic compounds? Is the livestock loophole’s policy to feed fracking fluids to livestock, wildlife, and agriculture a legitimate beneficial use under the Prior Appropriation doctrine? Should the EPA be forced to conduct up-to-date studies on the compounds in produced water, and their effects on living organisms, including humans? This Article will answer those questions and explore the bounds of tribal sovereignty and the federal trust responsibility in the context of produced water from fracking operations.

Maine Governor’s Administration and State Police Apologize After Violating Penobscot Nation’s Sovereignty

From Last Week’s MPBN Story:

For members of the Penobscot Indian Nation, few provisions of the Maine Indian Claims Settlement Act of 1980 are as sacred as the sections of the document that acknowledge the tribe’s inherent sovereignty as a nation within a nation. So when members of the Maine State Police crossed the bridge from Old Town onto the Indian Island reservation last Saturday, tribal chief Kirk Francis expected that the visit involved something more important than a traffic check.

And Today’s MPBN Story:

There was some significant communicating going on this week among senior members of the LePage administration and the Penobscot tribe in the aftermath of an incident earlier this month that reopened some old wounds on Indian Island. That’s when 15 buses traveled to the island carrying more than 1,000 people who had signed up to play in the tribe’s High-Stakes Beano Game. State troopers from the department’s traffic safety unit crossed onto the island to check the buses and their drivers to determine if they were operating legally. But the troopers did not consult with tribal officials before crossing the bridge from Old Town onto the island and refused to leave when first requested to do so by tribal police. Francis said tribal members couldn’t understand why the safety checks couldn’t have been done before the buses crossed onto Indian Island and were upset that their sovereign rights were not respected. In addition the tribe was forced to explain to the anxious beano players on the buses that nothing involvling the tribe was involved in the traffic stop. Ultimately, Francis said the entire incident was the result of a mid-level state police supervisor who was not familiar with tribal protocols and who was making decisions that had not been approved by his superiors.

Link to the Maine Indian Claims Settlement Act of 1980 is here.

Article on Tribes and Self-Defense

For anyone who’s interested, my article, “‘Hostile Indian Tribes . . . Outlaws, Wolves, . . . Bears . . . Grizzlies and Things Like That?’ How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense,” recently came out in the University of Pennsylvania Journal of Constitutional Law and is now available on Westlaw and Lexis. It examines the legal history of tribes’ and Indians’ right to self-defense (or lack thereof) and right to bear arms and argues that tribes are still being punished for past acts of self-defense.

Alex Skibine Posts “Tribal Sovereign Interests Beyond the Reservation Borders”

Incl. Electronic Paper Tribal Sovereign Interests Beyond the Reservation Borders
Lewis & Clark Law Review, Utah University Legal Studies Research Paper Series, Research Paper No. 08-21
Alexander Tallchief Skibine
University of Utah – S.J. Quinney College of Law

Abstract here:

In this article, after exploring the evolution of ‘sovereignty’ from a territorially based concept to a more flexible and fluid principle, professor Skibine examines the sovereign interests Indian tribes may have beyond the borders of their reservations.

MSU Conference: Neocolonial Inscription and Performance of American Indian Identity in American Higher Education: Oct. 16-17

The conference will attempt to address and review issues of American Indian identity in higher education.  Through this process, we hope to create and expand inter-community, inter-institutional and public dialogue on American Indians in higher education.  The two day conference will examine key issues such as tribal sovereignty, faculty hiring, current university practices allowing self-identification, and explore who should represent American Indians in American Indian higher education programs and departments.

As a result of this conference, we hope to make MSU a better community, a more honest community, a place where diversity engenders not only inclusion in name, but where diversity includes, reflects and respects diverse ways of knowing and thinking, as well as diverse means for reception, delivery and acceptance of cultural competencies and production.

Keynote Speakers:

Dr. Cornel Pewewardy

The Honorable Steve Russell


Billings Gazette Special Report on Tribal Sovereignty

From the Billings Gazette:

When the last of the bison herds disappeared in the early 1880s, Indian nations on the Northern Plains were reduced to poverty.

In Montana, where there are no high-flying gambling operations and big population centers, economic conditions for American Indians have been slow to change. Unemployment is rampant, and business opportunities are scarce.

Through various acts of Congress, tribes are contracting with the federal government to provide essential services to their people. But federal funds, static for years, are shrinking. Tribes are taking on more responsibilities than ever for the welfare of their people and are pursuing economic opportunities to support their efforts.

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