New Scholarship Proposing a National Tribally Owned Lien Filing System to Support Access to Capital in Indian Country

William H. HenningSusan M Woodrow and Marek Dubovec have posted their paper, “A Proposal for a National Tribally Owned Lien Filing System to Support Access to Capital in Indian Country,” forthcoming in the Wyoming Law Review.

New Student Scholarship on Medicaid and Indian Tribes

Here is “Medicaid: Can Federal Responsibilities, State Authorities, and Tribal Sovereignty be Reconciled?,” published in the Wyoming Law Review.

An excerpt:

The decisions made by state governments related to Medicaid funding of American Indian and Alaska Native health care is not consistent with either the federal responsibility or the unique government-to-government relationship the Tribes have with the federal government. The United States Supreme Court’s recent decision allowing optional Medicaid expansion for states further emphasizes how state authority in Medicaid implementation decisions impacts federally funded care delivered to American Indians and Alaska Natives. American Indians and Alaska Natives are disproportionally impacted in states not expanding Medicaid.

New Scholarship in Wyoming’s Big Horn River General Stream Adjudication

Jason Robison has posted his forthcoming paper, “Wyoming’s Big Horn General Stream Adjudication, 1977-2014,” on SSRN. It is forthcoming in the Wyoming Law Review.

An excerpt:

Aimed at addressing water rights in the State of Wyoming’s portion of the Wind/Big Horn Basin, including those held by the Eastern Shoshone and Northern Arapahoe tribes on the Wind River Indian Reservation, the Big Horn general stream adjudication is currently poised to draw to a close after 37 years. This article offers an overview of this complex and often contentious legal proceeding, relying mainly on primary sources contained in a digital archive, and situates the adjudication within the broader context of western water law.

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.

New Scholarship on Major Crimes Act Prosecutions, Tribal Sovereignty, and Jury Vicinage & Venue Selection

Shannon Rogers has published “Comment: Giving Meaning to Empty Words: Promoting Tribal Self-Governance by Narrowing the Scope of Jury Vicinage and Venue Selection in MCA Adjudications” in the Wyoming Law Review.

An excerpt:

A practical step to solving the federal-tribal disconnect and involving the Indian community is to narrow the MCA adjudication procedures. As discussed below, the MCA, unlike any other criminal statute, explicitly draws geographic and racial-political boundaries. The adjudication process, through venue and jury venire selection reform, needs to be limited in consideration of the MCA’s constraints. This comment discusses two proposals for modifying MCA adjudications to better involve the Indian community: (1) moving the venue for MCA adjudications closer to the Indian community, and (2) shrinking the jury venire used. To exemplify these proposals, the discussion herein focuses on Wyoming because the state geography, proximity of the federal courts to the reservation, and tribal population provide a perfect case study for general issues faced in MCA prosecutions. The ultimate intent of this comment is to highlight the practical implications of ignoring venue problems and the over-inclusion of non-Indians in MCA adjudications. In doing so, the proposals presented in this comment will help further the federal  government’s policy of self-governance for tribes.

Wyoming Law Review Indian Law Symposium Issue

Here:

Current Issue: Vol. 11, No. 2 (2011)

Front Page

Indian Law

MSU Press Release on “Race and American Indian Tribal Nationhood”

Native Americans stuck in a political irony

Contact: Kristen Parker, University Relations, Office: (517) 353-8942, Cell: (517) 980-0709, Kristen.Parker@ur.msu.edu; Matthew Fletcher, College of Law, Office: (517) 432-6909, fletchem@law.msu.edu

Published: Oct. 17, 2011

Socio-economic and environmental problems are at an all-time high, says Matthew Fletcher, director of the Indigenous Law and Policy Center at the MSU College of Law. The answer: A change in tribal membership codes so that non-American Indians are held accountable.

His study, “Race and American Indian Tribal Nationhood,” was recently published in Wyoming Law Review.

Continue reading

Kate Fort on The New Laches and the Iroquois Land Claims

Kathryn Fort has posted a draft of her paper, Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court, forthcoming in the Wyoming Law Review as part of an Indian law symposium, on SSRN.

Here is the abstract:

That the law changes over time is no secret. That the law changes based on the parties involved is less obvious, but still no secret. In the case of the Haudenosaunee land claims cases, however, the law shifted dramatically and quickly based entirely on the identity of the parties. In less than five years, the federal appellate courts changed the law so drastically to all but end more than thirty years of modern litigation, reversing years of relative fairness at the district court level. These actions required a fundamental shift in the law of equity: the creation of a new equitable defense for governments against Indian land claims. How the courts accomplished so much in such a short amount of time requires a close reading of the cases and a few logical leaps.

The first part of this article will give a brief history of the New York land claims, focusing on the Oneida Indian Nation and the Cayuga Indian Nation of New York. While the tribes have been fighting the status of this land since the original agreements were signed in the late eighteenth and early nineteenth century, this article looks to the modern era of land claims in the federal courts. The second part of this article will review how a decision in the Oneida claims case directly informed City of Sherrill v. Oneida Indian Nation. The third part will focus on the Cayuga Nation line of cases and how Cayuga Indian Nation of New York v. Pataki changed the fundamental understanding of the equitable defense of laches into a new defense used to defeat tribal land claims. Finally, the fourth part of this article will look closely at the most recent loss, Oneida Indian Nation v. County of Oneida, where the court admits the creation of a new equitable defense. This defense, identified as “new laches” or “Indian law laches” is a defense that can prevent even the bringing of a land claim in the courts. The defense is no longer traditional laches, but rather an equitable defense that follows none of the rules of equity, and exists only in federal Indian law.