Wind River

Here we go again (first bracket here):

# 2 Sault Ste. Marie Tribe of Chippewa Indians

Perhaps the most immediate beneficiary of the Bay Mills win in the Supreme Court, which persuaded the State of Michigan to seek another route to fighting Sault Tribe’s Lansing casino proposal. But not before Sault Tribe proposed two huge off-reservation casinos. Oh yeah, they won a $74 million contract case, too. Pretty good year.

# 15 Fond du Lac Band of Lake Superior Ojibwe

Still embroiled in disputes (here and here) with the City of Duluth over the Fond du Luth Casino and related properties. Won one right before Christmas though.

# 7 Gun Lake Tribe

Seeding might be a little high; a little hometown bias. Anyway, who else got Congress to overturn a Supreme Court decision in 2014, hosted the Potawatomi Gathering, and is an overall, good citizen?

# 10 Wind River Tribes

Lots of action this last year, what with Wyoming going berzerk over the EPA’s decision to let tribal agencies measure air quality, and with much internal strife. 2015 should be a real interesting year.

# 3 Bay Mills Indian Community

Well, they won a Supreme Court case. Not a whole lot else going on. Sault Tribe, as we noted, passed them in the seeding.

# 14 Cowlitz Tribe

Along with Interior, won a big one over neighboring tribes who claimed Cowlitz is a tribe barred from eligibility for trust land acquisitions by Carcieri.

#6 Navajo Nation

How can Navajo be seeded so low? They’re arguably the most important tribe every year, right? Well, yes, but they took some hits this year, too. Lost a tribal civil jurisdiction case in the Ninth Circuit, lost (or did they concede) on whether New Mexico can transport tribal members off rez to take drug tests, is going through one of the ugliest tribal election disputes in recent memory, fighting off Hopi and enviro challenges to their energy generators, lost a big water rights case, suffered through an ugly internal fight over a tribal resources company, lost one in the D.C. Circuit, got some bad news on uranium pollution, and lost legendary code talker Chester Nez. On the other hand, Navajo settled a huge trust case with the feds, won one against HUD, won a big one in the Ninth Circuit on Navajo’s tribal preference in employment statute, and hosted Michigan and Michigan State law students over spring break.

All in all, no one beats Navajo on volume, but this one’s a mixed bag.

# 11 Lac Courte Oreilles Band of Lake Superior Ojibwe (and other Wisconsin treaty tribes)

Won a huge treaty rights case in the Seventh Circuit (miigwetch Judge Posner) on the night deer hunting controversy.

Michael Blumm, David Becker, and Joshua Smith (all of Lewis & Clark) just posted, “The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled.”

ABSTRACT: Western state water law has been notorious for its
failure to protect streamflows. One potential means of providing
the missing balance in western water allocation has always been
Indian water rights, which are federal rights reserved from state
laws. These federal water rights normally have priority over
state-granted rights because they usually were created in the
19th century, well before most Western state water allocation
systems were even established.

Over two decades ago, in 1983, Justice William Brennan assured
Indian tribes that their reserved water rights would not be
compromised by subjecting them to state court adjudications under
the so-called McCarran Amendment, an appropriations rider given
expansive interpretation by the Supreme Court in the 1970s and
1980s. Justice Brennan’s belief that state courts – comprised
largely of elected judges – could treat tribal claims
evenhandedly, despite the high stakes and entrenched interests
involved in Western water rights adjudications, has never been
evaluated.

This study aims to begin to fill that gap by examining the
results of six Western water right adjudications – five of which
were decided by state courts – involving the Klamath, Wind,
Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The
results suggest that Justice Brennan’s optimism was quite
misplaced: in none of the cases studied did a court order
restoration of streamflows necessary to fulfill the purpose of
the tribe’s reservation. Instead, the state courts created a
number of new legal principles to limit or diminish tribal water
rights, in an apparent effort to reduce the displacement of
current water users.

The paper concludes that in the McCarran Amendment Era tribes
must resort to extrajudicial means of restoring streamflows
necessary to fulfill the purposes of their reservations. It shows
how some tribes have employed settlements – and even state law –
to achieve partial streamflow restoration, which is all that now
seems possible in an era in which their claims are usually judged
by skeptical state court judges who face reelections in which
entrenched water users exert considerable influence.

Turtle Talk

Who Won Indian Law and Policy in 2014? First Round Bracket — 2 of 8

Blumm et al. on the McCarren Amendment and Indian Water Rights