Indigenous, Indian, and Aboriginal Law Commons^™

Through A Federal Habeas Corpus Glass, Darkly- Who Is Entitled To Effective Assistance Of Counsel In Tribal Court Under Icra And How Will We Know If They Got It?, Jordan Gross

Faculty Law Review Articles

Part I of this article is a history and analysis of the federal constitutional right to effective assistance of counsel. It explains how federal ineffective assistance of counsel jurisprudence has developed almost exclusively in the context of federal habeas review of state court convictions and rendered most federal ineffective assistance of counsel claims unviable. Part II explains the right to counsel in tribal court and the habeas corpus remedy available to tribal prisoners under ICRA. Part III identifies issues that will need to be addressed now that Congress has created a statutory ineffective assistance of counsel claim for tribal prisoners …

Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan

Faculty Law Review Articles

Throughout the world water plays a central role in the spirituality of indigenous peoples. Focusing on the American West, this article first describes how tribal water needs touch upon the sacred and then explains how both federal law and state prior appropriation doctrine fail to adequately protect these important sacred views of water. Pivoting away from the classic federal law arguments, the article then advocates for an evolution in state water law regimes to provide yet unrecognized protections for tribal sacred waters. Because international law plays an increasing role in this issue, the article also explores case studies from Ireland, …

Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills

Faculty Law Review Articles

The federal government’s trust relationship with federally- recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes …

United States V. Washington, Kirsa Shelkey

Public Land & Resources Law Review

Pacific Northwest Treaties, now known as the Stevens Treaties, were negotiated in the 1850’s between the U.S. and Indian tribes, including the Suquamish Indian Tribe, Jamestown S'Klallam, Lower Elwha Band of Klallams, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes, Lummi Indian Nation, Quinault Indian Nation, Puyallup Tribe, Hoh Tribe, Confederated Tribes and Bands of the Yakama Indian Nation, Quileute Indian Tribe, Makah Indian Tribe, Swinomish Indian Tribal Community, and the Muckleshoot Indian Tribe (“Tribes”). The Stevens Treaties stated that “the right of taking fish, …

Blackfeet Housing V. Armc Risk Management Corp., 15-Ap-09 (Blkft. Tr. Ct. App., Nov. 7, 2016), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court considered whether appellant, ARMC, was subject to the jurisdiction in the Blackfeet Tribal Court. The lower court erred in finding that it had jurisdiction in this matter under the arm of the tribe analysis it applied. The “arm of the tribe” analysis would have been more appropriate if ARMC was a section 16 entity. Rather, ARMC is a Section 17 Charter, which demands an analysis of whether the Charter was properly granted and ratified. ARMC does enjoy a congressional grant of sovereign immunity under 25 U.S.C. 477, but ARMC’s immunity defense …

Oral Tradition And The Kennewick Man, Cathay Y. N. Smith

Faculty Law Review Articles

No abstract provided.

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

Public Land & Resources Law Review

The federal government’s various Indian policies create a number of boundaries across which Indian tribes must negotiate to ensure successful management of their natural resources. For example, the removal, reservation, and treaty-making period of the late 18th and early 19th Centuries created territorial boundaries that, for many tribes, did not align with their traditional homelands. Thereafter, allotment of many of the resulting tribal reservations decimated the tribal land base and left a checkerboard ownership pattern of land within many reservations. More recent decisions of the United States Supreme Court have limited tribal authority over the non-Indian owned squares on the …

Protecting Traditional Water Resources: Legal Options For Preserving Tribal Non-Consumptive Water Use, Julia Guarino

Public Land & Resources Law Review

The law governing the quantification and use of tribal water rights is complex and inconsistent, creating major challenges for tribes working to gain control over and make use of their water resources. There are even greater challenges a tribe must overcome if it wishes to safeguard non- consumptive water uses not generally protected under Western water law regimes. Non-consumptive water uses include any use that does not require removing water from the natural water body. Such uses include protecting in-stream water flows for fisheries, riparian habitat, traditional plants, ceremonial uses, or recreation. There are legal tools available to tribes, however, …

“Salmon Is Culture, And Culture Is Salmon”: Reexamining The Implied Right To Habitat Protection As A Tool For Cultural And Ecological Preservation, Wesley J. Furlong

Public Land & Resources Law Review

No abstract provided.

A Sacred Responsibility: Governing The Use Of Water And Related Resources In The International Columbia Basin Through The Prism Of Tribes And First Nations, Matthew J. Mckinney, Richard Kyle Paisley, Molly Smith Stenovec

Public Land & Resources Law Review

In the fall of 2012, leaders from Columbia Basin First Nations and tribes participated, along with about 150 other people, in the 4th transboundary symposium convened by the Universities Consortium on Columbia River Governance. Gathered on the shores of Flathead Lake in Polson, Montana, the participants explored the interests, rights, roles, and responsibilities of indigenous people in the international Columbia River Basin. This symposium generated two notable outcomes: first, The Columbia River Basin: A Sense of the Future—a synthesis of interests and concerns with regard to the future of the transboundary river basin as captured by the Universities Consortium during …

Mauna Kea Anaina Hou V. Board Of Land And Natural Resources, Wesley J. Furlong

Public Land & Resources Law Review

Native Hawaiians and the scientific community have been pitted against each other in a decades-long culture war over the construction of observatories and telescopes on sacred landscapes. In Mauna Kea Anaina Hou, the Hawai’i Supreme Court handed a victory to Native Hawaiian culture and rights by halting the construction of a new telescope on Mauna Kea. The decision must be read cautiously, however, as it is firmly rooted in the strict application of procedural due process.

New Approaches To Energy Development In Indian Country: The Trust Relationship And Tribal Self-Determination At (Yet Another) Crossroads, Monte Mills

Faculty Journal Articles & Other Writings

Energy development in Indian country exists at the crossroads of tribal self-determination and the federal government's trust responsibility. This article reviews the foundations of this crossroads, describes recent developments, and analyzes pending proposals that may enhance both tribal sovereignty and energy development in Indian country.

Vawa 2013'S Right To Appointed Counsel On Tribal Court Proceedings- A Rising Tide That Lifts All Boats Or A Procedural Windfall For Non-Indian Defendants, Jordan Gross

Faculty Law Review Articles

This Article addresses a question that seems like it would be easy to answer, but is actually quite complex-when is an indigent defendant entitled to counsel at the public's expense in the United States? The answer is complex because it depends on what the indigent is charged with, what sentence he receives, and who prosecutes him. The Sixth Amendment guarantees an accused the assistance of counsel in "all criminal prosecutions."' The Supreme Court has said that the Sixth Amendment right to counsel includes the right to effective assistance of counsel, and the right to appointed counsel at public expense for …

It’S Rooted In The Land: How Managing Natural Resources Leads Native American Tribes To Sovereignty, Nicky Ouellet

Graduate Student Theses, Dissertations, & Professional Papers

Tribal management of land and natural resources within the boundaries of Native American reservations is often superseded by state and federal policy. But control of land and resources is, ultimately, what makes a nation a nation. The three stories in this portfolio depict tribes establishing control of natural resources to various degrees of success. Chapter one is a narrative outlining the stories, my reportage and plans for publication. Chapter two: Members of the Northern Cheyenne seek to establish a medical marijuana program after the federal government relaxed enforcement of cannabis bans. Chapter three: An activist on the Fort Berthold reservation …

Agdaagux Tribe Of King Cove V. Jewell, Taylor R. Thompson

Public Land & Resources Law Review

In a lengthy opinion by the Alaska District Court, the battle for a proposed medical emergency road through the Izembek National Refuge stalled. The court held that the Department of the Interior’s No Action Alternative blocked the construction of the road was decided in accordance within the Department’s authority. It is not the end of the battle over the road, as the court alluded that Congress may be able to change this decision.

Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore

Public Land & Resources Law Review

In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.

Belcourt Public School District V. Davis, Hallie Bishop

Public Land & Resources Law Review

No abstract provided.

Crow Tribe Of Indians – Montana Compact, Ariel E. Overstreet-Adkins

Public Land & Resources Law Review

This order from the Montana Water Court approved the Crow Water Compact over objections by non-tribal water users in Montana. Although the Objectors have appealed the decision to the Montana Supreme Court, this order represents the next-to-last step in a process, started in 1979, to define and quantify the reserved water rights for current and future uses of the Crow Nation in Montana. The order provides a clear roadmap for other Montana tribes still seeking to achieve approval of a water compact by the Montana Water Court, and for objectors who would attempt to invalidate a compact in future proceedings.

Columbia River Treaty Renewal And Sovereign Tribal Authority Under The Stevens Treaty “Right-To-Fish” Clause, David A. Bell

Public Land & Resources Law Review

No abstract provided.

Using The New Equal Protection To Challenge Federal Control Over Tribal Lands, Alex T. Skibine

Public Land & Resources Law Review

No abstract provided.

And Justice For All, Someday: Indians, Alaska Natives Face Unique Obstacles, Maylinn Smith

Faculty Journal Articles & Other Writings

There are many conditions making access to justice more problematic for American Indians and Alaska Natives. Without adequate knowledge of tribal cultures, contemporary and historical issues impacting Indian peoples, and the laws applicable to Indian country, access to justice for American Indians and Alaska Natives can never be achieved.

Blackfeet Tribe V. Town Of Browning, 14-Ap-20 (Blkft. Tr. Ct. App., May 5, 2015), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court adopted a federal court policy stating that appeals can only be taken from final judgements of the Blackfeet Tribal Court unless otherwise specified by law. This is done because piecemeal appeals are oppressive and costly and requiring final a judgement for appealability is the Court of Appeals is to avoid constant disruption of the trial process and encourage consolidation in one appeal all errors hat a part feels transpired during trial. United States v. Nixon, 418 US 683, 94 S. Ct. 3090, (1974), 4 Am. Jur 2d Sec. 86.

Schaghticoke Tribal Nation V. Kent School Corporation Inc., Lindsey M. West

Public Land & Resources Law Review

The United States Court of Appeals for the Second Circuit affirmed dismissal of three consolidated actions of the Schaghticoke Tribal Nation claiming the Schaghticoke had been dispossessed of Indian land without the approval of Congress, a violation of the Nonintercourse Act. The court found the district court correctly deferred under the primary jurisdiction doctrine to the United States Department of Interior’s determination that the Schaghticoke did not qualify for tribal status. Additionally, the district court properly relied on the Department of Interior’s factual findings in holding the Schaghticoke presented insufficient evidence to establish a prima facie violation of the Nonintercourse …

Jackson V. Payday Financial, Llc., Hannah S. Cail

Public Land & Resources Law Review

In Jackson v. Payday Financial, the Seventh Circuit Court of Appeals held loan a provision requiring arbitration in tribal court was unreasonable and substantially and procedurally unconscionable. The Court rejected Payday’s argument that the dispute belonged in tribal court, because there was no subject matter jurisdiction over Plaintiffs’ claims, and the defendants did not raise a colorable claim for tribal jurisdiction or tribal exhaustion.

Tribal Courts Part Ii: Crow, Ft. Belknap, Fort Peck And Northern Cheyenne, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Smith V. Parker, Lindsay M. Thane

Public Land & Resources Law Review

The Eighth Circuit Court of Appeals found that an 1882 Act of Congress did not intend to diminish the boundaries of the Omaha Indian Reservation in Nebraska. The district court’s decision was affirmed because reservation land may not be divested from the tribe absent clear congressional intent to alter the reservation’s boundaries. Because the Omaha Reservation land was not diminished, the town of Pender, Nebraska—which currently sits on Reservation land—and residents of Pender, Nebraska who are engaged in the sale of alcoholic beverages must comply with the Omaha Tribal Code’s imposition of a ten percent sales tax on these beverages.

Tribal Water Rights Settlements And Instream Flow Protection, Dylan M. Desrosier

Graduate Student Theses, Dissertations, & Professional Papers

Native American Tribes have been fighting for access, legal recognition, and the control over their water rights for more than a century. Today less than ten percent of the 566 federally recognized Tribes have had their rights legally defined and secured under the law. One particularly complicated and compelling aspect of tribal reserved water rights involves the protection of water instream. Since the McCarran Amendment and state court quantification of Winters reserved rights, Tribes have sought to quantify and protect reserved water rights through negotiated settlement agreements. Although the settlements seek to bring certainty, resolution, and final integration of reserved …

Pyramid Lake Paiute Tribe Of Indians V. Nevada, Dept. Of Wildlife, David A. Bell

Public Land & Resources Law Review

In Pyramid Lake Paiute Tribe of Indians v. Nevada, Dept. of Wildlife, the Court of Appeals for the Ninth Circuit upheld a Nevada federal district court decision to vacate the Nevada state engineer’s approval of the transfer of three water applications. While the appeals court recognized the state’s re-watering of wetlands as a “salutary” purpose, it could not allow the engineer’s decision to go forward because it did not meet the legal definition of “irrigation.” The Court made the decision pursuant to two federal court decrees, which resulted from prior actions by the United States to quiet title to …

Western Montana Water Users Assoc., Llc V. Mission Irrigation District, David A. Bell

Public Land & Resources Law Review

The Western Montana Water Users challenged the authority of the Flathead Joint Control Board to enter into a Water Use Agreement with Tribal, State, and Federal governments. This procedural challenge alleged that the Joint Control Board, made up of the irrigation districts, did not have the ability under Montana statutes to act for the irrigators without a specific vote of the members and approval from the district court. Two days after receiving the case the Montana Supreme Court reversed, determining that the statutes were inapplicable and the Joint Control Board had authority to enter the agreement.

Best V. Tribe, 2013-Ap-10 (Blkft Tr. Ct. App., June 5, 2013), Blackfeet Appellate Court

Court Decisions

• In the Blackfeet Tribal Court of Appeals, the Court ordered a Writ of Habeas Corpus, for a defendant arrested and held under tribal public intoxication ordinances, because:

1. Bond for public intoxication is “Own Recognizance” therefore the defendant is released on OR;

1. The Blackfeet tribal Business council has the legal authority to promulgate Public Intoxication Ordinance 107;

1. The Blackfeet tribal Complaint and Summons were sufficient as the officer certified under oath that the defendant committed the offense; and

1. The Blackfeet Tribal Court of Appeals has no jurisdiction over BIA Facilities.