Native American Natu ral Resources Law
Native American Natu ral Resources Law Cases and Materials fourth edition Judith V. Royster Professor of Law Co- Director, Native American Law Center University of Tulsa College of Law Michael C. Blumm Jeffrey Bain Faculty Scholar & Professor of Law Lewis & Clark Law School Elizabeth Ann Kronk Warner Professor of Law Director, Tribal Law & Government Center University of Kansas School of Law Carolina Academic Press Durham, North Carolina
Copyright 2018 Carolina Academic Press, LLC All Rights Reserved ISBN 978-1-5310-0701-0 eisbn 978-1-53100-702-7 LCCN 2018944087 Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America
We dedicate this book to Indian Law students everywhere who are concerned about the wise use of the environment of Indian country.
Contents Table of Cases Preface to the Fourth Edition Introduction Themes of Native American Natu ral Resources Law xv xxv xxvii xxvii Chapter 1 Land, Religion, and Culture 3 A. Indians and the Land 3 Frank Pommersheim, The Reservation as Place: A South Dakota Essay 3 Michael C. Blumm, Sacrificing the Salmon: A Legal and Policy History of the Decline of Columbia Basin Salmon 6 Navajo Nation Code, Tit. I, 205 8 Rebecca Tsosie, Tribal Environmental Policy in an Era of Self- Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge 8 Ezra Rosser, Ahistorical Indians and Reservation Resources 10 B. Legal Protection of Sacred and Cultural Sites 11 Lyng v. Northwest Indian Cemetery Protective Association 11 Notes 21 Navajo Nation v. United States Forest Ser vice 22 Notes 34 Bear Lodge Multiple Use Association v. Babbitt [Bear Lodge II] 35 Executive Order 13007 Indian Sacred Sites 41 Notes 42 Note on Federal Protection of Cultural Property Under the Antiquities Act: Bears Ears National Monument 43 Note on Cultural Protection Under Other Statutes 44 USDA Forest Ser vice Lake Tahoe Basin Management Unit Rec ord of Decision for Cave Rock Management Direction Final Environmental Impact Statement 48 Notes 54 Note on the Native American Graves Protection and Repatriation Act 55 Bonnichsen v. United States 58 Notes 64 vii
viii CONTENTS Chapter 2 Some Basics of Federal Indian Law 71 A. History of Federal Indian Policy 71 B. The Cherokee Cases 78 Cherokee Nation v. Georgia 80 Worcester v. Georgia 83 Notes 88 C. Tribal Sovereignty 90 Felix S. Cohen, Handbook of Federal Indian Law 90 Notes 92 D. The Federal Role in Indian Country 94 Lone Wolf v. Hitchcock 95 Notes 99 Note on Federal Power over Indians 99 Notes on the Trust Doctrine 100 E. Indian Country 103 1. Scope and Extent of Indian Country 103 Note on Indian Country 103 Oklahoma Tax Comm n v. Sac and Fox Nation 104 Note on the Definition of Reservation 107 Alaska v. Native Village of Venetie Tribal Government 108 Notes 113 Note on Alaskan Subsistence 115 Mustang Production Co. v. Harrison 117 Note on Tribal Courts and Tribal Court Exhaustion 120 Note on Indian Country in Oklahoma 121 2. Expanding Indian Country 122 Buzzard v. Oklahoma Tax Commission 122 Notes 124 3. Contracting Indian Country: Reservation Diminishment 129 Solem v. Bartlett 130 Note on the Canons of Construction 138 South Dakota v. Yankton Sioux Tribe 138 Notes 146 Nebraska v. Parker 146 Notes 151 Chapter 3 Land: The Fundamental Resource 155 A. Aboriginal Title 155 Johnson and Graham s Lessee v. M Intosh 155 Notes 159 City of Sherrill v. Oneida Indian Nation 163 Notes 167 United States ex rel. Hualpai Indians v. Santa Fe Pacific Railroad Co. 170
CONTENTS ix Notes 175 Tee- Hit- Ton Indians v. United States 180 Notes 184 Note on the Federal Claims Process 186 B. Recognized Title 188 United States v. Shoshone Tribe of Indians 188 Notes 191 United States v. Sioux Nation of Indians 192 Notes 205 C. Executive Order Reservations 209 Sioux Tribe of Indians v. United States 209 Notes 213 D. Submerged Lands 215 Montana v. United States 215 Notes 219 United States v. Cherokee Nation of Oklahoma 223 Note on Cherokee Claims to the Arkansas River 226 E. Allotted Lands 229 Northern Cheyenne Tribe v. Hollowbreast 231 Note on Fractionation 235 Babbitt v. Youpee 237 Notes 242 Chapter 4 Land Use and Environmental Protection 247 A. Authority to Control Land Use 247 Worcester v. Georgia 248 Notes 248 Montana v. United States 249 Notes 253 New Mexico v. Mescalero Apache Tribe 257 Notes 263 Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation 264 Notes 272 South Dakota v. Bourland 273 Notes 274 Strate v. A-1 Contractors 275 Notes 276 Nevada v. Hicks 276 Notes 279 B. Environmental Protection 282 1. Environmental Authority in Indian Country 282 Phillips Petroleum Co. v. U.S. Environmental Protection Agency 282 Notes 283
x CONTENTS EPA Policy for the Administration of Environmental Programs on Indian Reservations 284 Notes 285 State of Washington, Department of Ecol ogy v. United States Environmental Protection Agency 286 Notes 291 City of Albuquerque v. Browner 295 Notes 300 Arizona Public Ser vice Co. v. Environmental Protection Agency 304 Notes 311 Backcountry against Dumps v. Environmental Protection Agency 313 Notes 316 Note on Tribal Environmental Law 319 2. Application of Environmental Laws to Tribes 320 Notes 320 Blue Legs v. United States Bureau of Indian Affairs 322 Notes 325 3. Environmental Impacts of Development 327 Davis v. Morton 327 Notes 331 Sangre De Cristo Development Co., Inc. v. United States 332 Metcalf v. Daley 335 Notes 342 Note on Environmental Justice 344 An Environmental Justice Case Study: Dakota Access Pipeline 346 Chapter 5 Natu ral Resource Development 349 A. The Federal- Tribal Relationship in Resource Management 349 1. The Role of the Department of the Interior 350 Reid Peyton Chambers & Monroe E. Price, Regulating Sovereignty: Discretion and the Leasing of Indian Lands 350 Mary Christina Wood, Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources 352 Notes 353 2. Tribal Resource Development Statutes 356 Note on Resource Development Statutes 356 Note on Renewable Energy Resources 362 3. Energy Rights-of-Way 363 Blackfeet Indian Tribe v. Montana Power Com pany 363 Notes 366 Nebraska Public Power Dist. v. 100.95 Acres of Land 367 Notes 369 Note on Tribal Regulatory Authority over Rights- of- Way 370
CONTENTS xi B. The Breach of Trust Action for Federal Resource Mismanagement 372 Nell Jessup Newton, Enforcing the Federal- Indian Trust Relationship after Mitchell 372 United States v. Navajo Nation 374 United States v. White Mountain Apache Tribe 386 Notes 392 Jicarilla Apache Tribe v. Supron Energy Corp. 396 Notes 397 C. The Tribal Role in Resource Management 401 Jicarilla Apache Tribe v. Andrus 401 Note on the Environmental Effects of Mining 406 United Nuclear Corp. v. United States 407 Notes 412 Quantum Exploration, Inc. v. Clark 414 Notes 418 Chapter 6 Taxation of Natu ral Resources 419 A. Federal Taxation 419 Squire v. Capoeman 419 Notes 421 B. Tribal Taxation 424 Merrion v. Jicarilla Apache Tribe 425 Notes 432 Kerr- McGee Corp. v. Navajo Tribe of Indians 432 Notes 435 Atkinson Trading Co., Inc. v. Shirley 435 Notes 438 C. State Taxation 440 Note on State Taxation of Tribal Interests 440 County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation 441 Cass County v. Leech Lake Band of Chippewa Indians 445 Notes 448 Montana v. Blackfeet Tribe of Indians 449 Notes 452 White Mountain Apache Tribe v. Bracker 453 Cotton Petroleum Corp. v. New Mexico 458 Notes 463 Chapter 7 Water Rights 471 A. Introduction to Reserved Rights 471 United States v. Winans 471 Winters v. United States 474 Notes 477 Note on State Water Law Systems 479
xii CONTENTS B. Extending the Winters Doctrine 481 Arizona v. California 481 Notes 484 C. Scope and Extent of Water Rights 485 1. Reservation Purposes, Priority Dates, and Quantification 485 Note on Reservation Purposes 485 Note on Methods of Quantification 486 United States v. Adair [Adair I] 487 Notes 493 In re General Adjudication of All Rights to Use Water in the Big Horn River System [Big Horn I] 499 In re General Adjudication of All Rights to Use Water in the Gila River System and Source 504 Notes 511 2. Rights to Groundwater 513 In re General Adjudication of All Rights to Use Water in the Big Horn River System [Big Horn I] 513 Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist. 514 Notes 519 3. Use of Water Rights 521 In re General Adjudication of All Rights to Use Water in the Big Horn River System [Big Horn III] 521 Notes 528 Note on Water Marketing 529 4. Rights of Allottees and Subsequent Purchasers 530 Colville Confederated Tribes v. Walton 530 Notes 536 5. Right to Water Quality 538 United States v. Gila Valley Irrigation District 538 D. Determination of Water Rights 545 Notes 545 Pyramid Lake Paiute Tribe of Indians v. Morton 547 Nevada v. United States 551 Notes 561 Note on the McCarran Amendment and State Water Adjudications 566 Arizona v. San Carlos Apache Tribe of Arizona 567 Notes 576 Note on Water Settlements 577 Chapter 8 Usufructuary Rights: Hunting, Fishing, and Gathering 585 A. Off- Reservation Rights 586 1. Modern Survival of the Rights 586
CONTENTS xiii Minnesota v. Mille Lacs Band of Chippewa Indians 586 Notes 601 Note on the Non- Indian Backlash 603 Public Access Shoreline Hawaii (PASH) v. Hawai i County Planning Commission 606 Notes 610 2. Defeasible Usufructuary Rights 612 State of Washington v. Buchanan 612 Notes 619 3. Regulation of Treaty Rights 620 Puyallup Tribe v. Department of Game of Washington [Puyallup I] 620 Notes 624 Department of Game of the State of Washington v. Puyallup Tribe [Puyallup II] 625 Note on Limiting Treaty Rights on Public Safety Grounds 626 Note on Tribal Hunting and Fishing Regulations 627 Note on On- Reservation versus Off- Reservation Rights 628 4. Scope and Extent of the Right of Taking Fish 629 United States v. Winans 629 Notes 630 Washington v. Washington State Commercial Passenger Fishing Vessel Association 633 Notes 642 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin [LCO- Timber] 647 5. Habitat Protection for the Treaty Fishing Right 649 Notes 650 United States v. Washington 654 Notes 656 United States v. Washington 657 Notes 661 B. Loss and Diminishment of the Rights 665 Menominee Tribe of Indians v. United States 665 Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe 670 Note on the Restoration of Menominee and Klamath Tribes 677 United States v. Dion 678 Notes 683 Anderson v. Evans 687 Note on Abrogation versus Regulation 693 Chapter 9 International Approaches to Indigenous Lands and Resources 695 A. International Instruments for the Protection of Indigenous Rights 695 Note: U.N. Declaration on the Rights of Indigenous Peoples 695
xiv CONTENTS U.N. Declaration on the Rights of Indigenous Peoples 696 Note: ILO Convention No. 169 700 The Convention Concerning Indigenous and Tribal Peoples in Independent Countries, 1989 700 Note: American Declaration on the Rights of Indigenous Peoples 702 American Declaration on the Rights of Indigenous Peoples 703 B. Indian Claims before International Forums 711 Inter- American Commission on Human Rights, Report No. 75/02, Case 11.140, Mary and Carrie Dann 712 Note: The Inter- American Human Rights System 717 Committee on the Elimination of Racial Discrimination: Early Warning and Urgent Action Procedure, Decision 1 (68): United States of Amer i ca 718 Notes 719 Index 721
Table of Cases The principal cases are in bold type. Cases cited in principal cases and within other quoted materials are not included. Access Fund v. United States Department of Agriculture, 54 Agua Caliente Band of Cahuilla Indians v. Coachella Water Dist., 514 Alabama-Coushatta Tribe v. United States, 161 Alaska v. Babbitt, 116 Alaska v. Native Village of Venetie Tribal Gov t, 104, 108, 185 Alaska ex rel. Yukon Flats School District v. Native Village of Venetie Tribal Government, 115 Alaska Wilderness League v. Kempthorne, 343 Alcea Band of Tillamooks v. United States, 214 Amoco Production Co. v. Southern Ute Tribe, 191 Amoco Production Co. v. Village of Gambell, 117 Anderson v. Evans, 343, 687, 694 Arizona v. California, 214, 479, 481, 484 486, 492, 503, 512, 528, 562, 639, 640 Arizona v. California II, 528 Arizona v. California III, 562 Arizona v. California (Quechan Tribe), 484 485 Arizona v. San Carlos Apache Tribe, 567 Arizona Department of Revenue v. Blaze Construction Co., Inc., 469 Arizona Public Service Co. v. Environmental Protection Agency, 304 Arrow Midstream Holdings v. 3 Bears Construction, 371 Arviso v. Commissioner of Internal Revenue, 422 Ashley v. United States Department of the Interior, 394 Atiak Native Community v. Environmental Protection Agency, 117 Atkinson Trading Co. v. Shirley, 272, 279, 435, 438, 440 Atlantic States Legal Foundation v. Salt River Pima-Maricopa Indian Community, 326 Attorney General v. Ngati Apa, 179 Babbitt v. Youpee, 237, 244 Backcountry Against Dumps v. Environmental Protection Agency, 291, 313, 316, 319 Baley v. United States, 496 Bangor Hydro-Electric Co. v. United States Department of the Interior, 43 Bear Lodge Multiple Use Association v. Babbitt (Bear Lodge I), 40 Bear Lodge Multiple Use Association v. Babbitt (Bear Lodge II), 35, 42, 55 Big Eagle v. United States, 422 Big Horn County Electric Cooperative v. Adams, 276, 438 xv
xvi TABLE OF CASES Black Hills Institute of Geological Research v. South Dakota School of Mines & Technology, 192 Blackfeet Indian Tribe v. Montana Power Company, 363 Blatchford v. Native Village of Noatak, 220 Blaze Construction Co. v. Taxation and Revenue Department, 466, 469 Blue Legs v. United States Bureau of Indian Affairs, 322, 325, 326 Boarhead Corp. v. Erickson, 47 Bobby v. Alaska, 116 Bonnichsen v. United States, 57, 58, 64 Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 264, 306 Brewer-Elliott Oil & Gas Co. v. United States, 222 Burlington Northern Railroad Co. v. Blackfeet Tribe, 438 439 Burlington Northern Railroad Co. v. Red Wolf, 371 Burlington Northern Santa Fe Railroad Co. v. Assiniboine and Sioux Tribes of the Fort Peck Reservation, 439 Buzzard v. Oklahoma Tax Commission, 122 Cabazon Band of Mission Indians v. Wilson, 466 Calder v. Attorney General for British Columbia, 176 Cappaert v. United States, 519 Carcieri v. Norton, 126 Carcieri v. Salazar, 128 Cardin v. De La Cruz, 264 Cass County v. Leech Lake Band of Chippewa Indians, 445, 448, 449 Cayuga Indian Nation of New York v. Pataki, 168 Cayuga Indian Nation v. Seneca County, 169 Center for Biological Diversity v. Salazar, 332 Central New York Fair Business Ass n v. Jewel, 127 Cherokee Nation v. Georgia, 73, 80, 101, 159, 255 Cherokee Nation v. State of Oklahoma, 227 Cherokee Nation of Oklahoma v. United States (Claims Court), 227, 228 Cherokee Nation of Oklahoma v. United States (Federal Circuit), 228 Cherokee Nation of Oklahoma v. United States (10th Circuit), 227 Cherokee Tobacco, The, 421, 422 Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 291 293 Cheyenne-Arapaho Tribes of Oklahoma v. Oklahoma, 122 Chippewa Cree Tribe of the Rocky Boy s Reservation v. United States, 394 Choctaw Nation v Oklahoma, 219, 222, 223, 226 Cholla Ready Mix, Inc. v. Civish, 46 Churchill County v. Norton, 547, 564 Citizens for a Better Way v. U.S. Dept. of the Interior, 331 City of Albuquerque v. Browner, 295, 301 City of Boerne v. Flores, 686 City of Sherrill v. Oneida Indian Nation, 163, 167, 168 City of Roseville v. Norton, 128 Cobell v. Babbitt, 400 Cobell v. Kempthorne, 400 Cobell v. Norton, 400 Cobell v. Salazar, 400 Colorado River Water Conservation District v. United States, 566 567, 577 Colville Confederated Tribes v. Cavenham Forest Industries, 264 Colville Confederated Tribes v. Condon, 320
TABLE OF CASES xvii Colville Confederated Tribes v. Everybodytalksabout, 627 Colville Confederated Tribes v. Walton, 478, 494, 528, 530, 536, 537, 651 Comanche Nation v. United States, 34 Confederated Salish and Kootenai Tribes v. Clinch, 512 Confederated Salish and Kootenai Tribes v. Namen, 264 Confederated Salish and Kootenai Tribes of the Flathead Reservation v. Stultz, 520 Confederated Tribes v. Bonneville Power Administration, 653 Confederated Tribes of Siletz Indians of Oregon v. United States, 129 Confederated Tribes of the Colville Reservation v. Anderson, 627 Confederated Tribes of the Colville Reservation v. Hoover, 280 Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell, 129 Cotton Petroleum Corp. v. New Mexico, 382, 458 Cougar Den, Inc. v. Washington State Department of Licensing, 468 County of Oneida v. Oneida Indian Nation, 163 County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 441, 448, 452 Critzer v. United States, 422 Crow Creek Sioux Tribe v. Brownlee, 45 Crow Tribe of Indians v. Repsis, 620 Cutter v. Wilkerson, 34 Cypress v. United States, 424 Davilla v. Enable Midstream Partners L.P., 370 Davis v. Morton, 327, 332, 333, 404, 405 Delgamuukw v. British Columbia, 176 Department of Game of the State of Washington v. Puyallup Tribe (Puyallup II), 625, 629, 631, 642, 643, 645 Department of the Interior v. Klamath Water Users Protective Association, 42, 565, 566 Department of the Interior v. South Dakota, 125 Dillon v. United States, 422 Dollar General v. Mississippi Band of Choctaw Indians, 280 Duro v. Reina, 255, 256 Earl v. Commissioner, 423 Ellis v. Page, 121 Ellis v. State, 121 Ex Parte Crow Dog, 74 Ex Parte Young, 220, 221 Flathead Joint Board of Control v. United States Department of the Interior, 565 Fort Mojave Indian Tribe v. United States, 562 Gila River Indian Community v. Waddell, 466 Gila River Pima-Maricopa Indian Community v. United States, 519 Gobin v. Snohomish County, 273 Governing Council of Pinoleville Indian Community v. Mendocino County, 264 Gros Ventre Tribe v. United States, 396 Guerin v. The Queen, 176 Hagen v. Utah, 141, 152, 165 Hodel v. Irving, 235, 237, 238, 241 Holt v. Commissioner, 422 Hoopa Valley Tribe v. Nevins, 465 Hopi Tribe v. United States, 393, 561 Hopi Tribe v. Trump, 44 Housing Authority v. Harjo, 121 Hydro Resources, Inc. v. United States Environmental Protection Agency, 113 Idaho v. Coeur d Alene Tribe, 220 Idaho v. United States, 222, 498
xviii TABLE OF CASES In re General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn I), 486, 499, 512, 513, 536 In re General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn III), 521 In re General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn IV), 537 In re General Adjudication of All Rights to Use Water in the Gila River System, 504, 519, 563 In re General Adjudication of All Rights to Use Water in the Gila River System (Gila River-Groundwater), 519 In re SRBA, 498 In the Matter of Water Use Permit Applications, 611 In the Matter of the Application of Beneficial Water Use Permit Nos. 66459-76L, Ciotti, 512 In re Ninety Mile Beach, 179 In re Yakima River Drainage Basin, 563 Iowa Mutual Insurance Co. v. LaPlante, 120, 321 Jackson v. United States, 399 Jamul Action Comm. v. Chaudhuri, 331 Jango v. Northern Territory, 178 Jicarilla Apache Tribe v. Andrus, 401 Jicarilla Apache Tribe v. Supron Energy Corp., 394, 396 Johnson and Graham s Lessee v. M Intosh, 71, 72, 73, 79, 155, 159 161, 169, 171, 176, 184 185 Joint Board of Control of the Flathead, Mission, and Jocko Irrigation Districts v. United States, 494, 565 Ka Pa Akai O Ka Aina v. Land Use Comm n, 611 Kansas Indians, The, 440 Karuk Tribe of California v. Ammon, 214 Kenaitze Indian Tribe v. Alaska, 116 Kerr-McGee Corp. v. Navajo Tribe of Indians, 432 Keweenaw Bay Indian Community v. Naftaly, 448 King Mountain Tobacco Comp. Inc. v. McKenna, 467 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 321 Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 494, 577, 652 Klamath Tribes v. United States Forest Service, 662 Knight v. Shoshone & Arapaho Indian Tribes, 264 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 603, 612 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO II), 620 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO III), 644 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO IV), 626, 628 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO-Timber), 647 Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, 605 Lone Wolf v. Hitchcock, 76, 95, 99, 132, 198, 200, 204, 242, 669, 679 Lucas v. South Carolina Coastal Council, 611 Lummi Indian Tribe v. Hallauer, 264 Lyng v. Northwest Indian Cemetery Protective Ass n, 11, 21 22, 42, 46 Mabo v. Queensland, 178 Mackinac Tribe v. Jewell, 94 Madison v. Alaska Department of Fish and Game, 116
TABLE OF CASES xix Match-E-Be-Nash-She-Wish Band v. Patchak, 127 McClanahan v. State Tax Commission of Arizona, 106, 440 McDonald v. Means, 276 McDowell v. Alaska, 116 Menominee Tribe of Indians v. United States, 664, 665 Merrion v. Jicarilla Apache Tribe, 425, 432,, 439, 463 Mervyn v. Western Australia, 179 Mescalero Apache Tribe v. Jones, 103, 125, 468, 620 Metcalf v. Daley, 335, 694 Michigan v. Bay Mills Indian Community, 103, 321 Michigan v. Environmental Protection Agency, 311 Mid States Coalition for Progress v. Surface Transportation Board, 207 Milirrpum v. Nabalco, 178 Minnesota v. Mille Lacs Band of Chippewa Indians, 586, 602 603, 610, 612, 620, 684 Mitchel v. United States, 171, 616 Montana v. Blackfeet Tribe of Indians, 449, 452, 463 Montana v. Crow Tribe of Indians, 464 Montana v. United States, 215, 219, 247, 249, 256, 424, 538, 628, 629 Montana v. United States Environmental Protection Agency, 308 Muckleshoot v. Hall, 652 Muckleshoot Indian Tribe v. Lummi Indian Nation, 646 Murphy v. Royal, 121 Murphy v. Sirmons, 121 Mustang Production Co. v. Harrison, 117, 435 Nance v. Environmental Protection Agency, 291, 315 Narragansett Indian Tribe v. Warwick Sewer Authority, 48 National Farmers Union Insurance Cos. v. Crow Tribe, 321 National Mining Association v. Slater, 48 Nat l Wildlife Fed n v. Nat l Marine Fisheries Service, 653 Navajo Nation v. Peabody Holding Co., 394 Navajo Nation v. United States Forest Service, 22 Nebraska v. Parker, 146, 151 Nebraska Public Power Dist. v. 100.95 Acres of Land, 367 Nevada v. Hicks, 78, 276, 279, 321, 438, 439 Nevada v. United States, 551, 662 New Mexico v. Mescalero Apache Tribe, 257, 628, 629 New Mexico ex rel. Reynolds v. Aamodt, 519 New York Indians, The, 167, 440 Nez Perce Tribe v. Idaho Power Company, 662, 663 Ninilchik Traditional Council v. United States, 117 No Oilport! v. Carter, 652 Northern Cheyenne Tribe v. Hollowbreast, 231 Northern Cheyenne Tribe v. United States Bureau of Land Management, 48 Northwest Indian Cemetery Protective Association v. Peterson, 22 Northwest Sea Farms v. United States Army Corps of Engineers, 652 Oglala Sioux Tribe v. United States, 207 Oglala Sioux Tribe of Pine Ridge Indian Reservation v. United States Army Corps of Engineers, 46 Oklahoma v. Environmental Protection Agency, 311 Oklahoma Tax Commission v. Chickasaw Nation, 441
xx TABLE OF CASES Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 305 Oklahoma Tax Commission v. Sac and Fox Nation, 104, 113, 440 441 Oliphant v. Suquamish Indian Tribe, 78, 209, 255 256 Oneida Indian Nation v. County of Oneida, 162, 163 Oneida Indian Nation v. State of New York, 169 Oneida Nation v. Madison County, 168 Oregon Department of Fish and Wildlife v. Klamath Indian Tribe, 670 Osage Nation v. Irby, 121, 151 Osage Tribal Council v. Department of Labor, 326, 327 Osage Tribe of Indians of Oklahoma v. United States, 394 Otoe-Missouria Tribe of Indians v. United States, 399 Ottawa Tribe of Oklahoma v. Logan, 160, 602 Pakootas v. Teck Cominco Metals Ltd., 327 Parravano v. Babbitt, 214 Phillips Petroleum Co. v. United States Environmental Protection Agency, 282, 283 Pittsburg & Midway Coal Mining Co. v. Watchman, 435 Plains Commerce Bank v. Long Family Land and Cattle Co., 280 Public Access Shoreline Hawaii (PASH) v. Hawai i County Planning Commission, 606, 612, 662 Public Service Co. v. Shoshone-Bannock Tribes, 327 Public Service Co. of New Mexico v. Approximately 15.49 Acres of Land, 369, 370 Public Service Co. of New Mexico v. Barboan, 370 Pueblo of Sandia v. United States, 43, 47 Puget Sound Gillnetters v. United States District Court, 632 Puget Sound Gillnetters Association v. Moos, 632 Purse Seine Vessel Owners Association v. Tollefson, 632 Puyallup Indian Tribe v. Port of Tacoma, 220 Puyallup Tribe v. Department of Game of Washington (Puyallup I), 620, 624, 629, 631, 642 Puyallup Tribe v. Department of Game of State of Washington (Puyallup III), 628, 629, 631 Pyramid Lake Paiute Tribe of Indians v. Morton, 547, 611, 662 Quantum Exploration, Inc. v. Clark, 414 Quapaw Tribe of Oklahoma v. Blue Tee Corp., 318 Quechan Tribe of the Fort Yuma Reservation v. United States Department of the Interior, 48 Quinault Indian Nation v. Grays Harbor County, 448 R. v. Marshall, 177 Red Lake Band of Chippewa Indians v. United States, 422 Reppun v. Board of Water Supply, 608, 611 Rice v. Rehner, 256 Robinson v. Jewell, 185 San Carlos Apache Tribe v. United States, 47 Sangre de Cristo Development Co., Inc. v. United States, 332 Santa Clara Pueblo v. Martinez, 321, 416 Santa Rosa Band of Indians v. Kings County, 124 Satiacum, 422, 639 Seminole Tribe of Florida v. Stranburg, 468
TABLE OF CASES xxi Seufert Bros. v. United States, 619, 630 Settler v. Lameer, 628 Shivwits Band of Paiute Indians v. Utah, 263 Shoshone Indian Tribe of the Wind River Reservation v. United States, 394 Simon v. The Queen, 176 Sioux Tribe of Indians v. United States, 209, 214 Skeem v. United States, 530 Skokomish Indian Tribe v. Mosbarger, 281 Skokomish Indian Tribe v. United States, 494, 664 Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission, 48 Sohappy v. Smith, 632 Solem v. Bartlett, 121, 129, 130, 138, 146, 151 South Dakota v. Bourland, 273, 274, 432, 628 South Dakota v. United States Department of the Interior, 124, 125, 128 South Dakota v. Yankton Sioux Tribe, 138, 146, 151, 152, 153, 602 Sparrow v. R., 176 Squire v. Capoeman, 419, 421, 422, 423 Standing Rock Sioux Tribe v. U.S. Army Corps of Eng rs, 347, 348 State v. Elliott, 169 State v. Hanapi, 610 State v. Jim, 644 State v. Klindt, 122 State v. Littlechief, 122 State Department of Ecology v. Acquavella, 497 State Engineer v. South Fork Bank of the Te Moak Tribe, 577 State ex. rel Greely v. Confederated Salish & Kootenai Tribes, 536 State ex rel. Martinez v. Kerr-McGee, 497 State ex. rel Martinez v. Lewis, 486 State ex rel. May v. Seneca-Cayuga Tribe, 122 State of Washington v. Buchanan, 612, 619 Strate v. A-1 Contractors, 275, 276, 281, 321, 370 371, 438 439 Strom v. Commissioner of Internal Revenue, 423 Superintendent of Five Civilized Tribes v. Commissioner of Internal Revenue, 422 Tee-Hit-Ton Indians v. United States, 180, 185, 188 Temoak Band of Western Shoshone Indians v. United States, 711 Thompson v. County of Franklin, 448 Tooisgah v. United States, 121 Tsilhot in Nation v. British Columbia, 177 Tulee v. Washington, 631, 642 Tweedy v. Texas Co., 519 Union Pacific Railroad Co. v. Runyon, 665 Union Pacific Railroad v. Wasco County, 665 United Nuclear Corp. v. United States, 407 United States v. 43 Gallons of Whiskey, 422 United States v. Abousleman, 478 United States v. Adair (Adair I), 486, 487, 494 495, 497, 529, 611 United States v. Adair (Adair II), 495, 496 United States v. Ahtanum Irrigation Dist., 563 United States v. Alaska, 222 United States v. Anderson (taxation), 423 United States v. Anderson (water rights district court), 494, 651 United States v. Anderson (water rights 9th Cir.), 537, 538 United States v. Antoine, 687
xxii TABLE OF CASES United States v. Billie, 683 United States v. Braren, 496 United States v. Bresette, 684 United States v. Brown, 685 United States v. Cherokee Nation of Oklahoma, 223 United States v. Clapox, 74 United States v. Confederated Tribes of the Colville Indian Reservation, 646 United States v. Daney, 422 United States v. Dann, 170, 711 United States v. Dion, 103, 214, 497, 678, 683 684, 685, 693 694 United States v. District Court in and for Eagle County, 566 United States v. Friday, 686 United States v. Gerber, 46 United States v. Gila Valley Irrigation District, 538 United States v. Hardman, 686 United States v. Hicks, 618, 620 United States v. Holt State Bank, 216 United States v. Hugs, 686 United States v. Idaho, 222, 498 United States v. Jicarilla Apache Nation, 395 United States v. John, 108 United States v. Kagama, 74, 75, 101 102 United States v. Lara, 255 United States v. Lummi Nation, 647 United States v. Lummi Tribe, 646 United States v. Mazurie, 428 United States v. McBratney, 248 United States v. Midwest Oil Co., 211 213 United States v. Mitchell (Mitchell II), 394 United States v. Muckleshoot Tribe, 646 United States v. Navajo Nation, 374, 392 United States v. Navajo Nation (Navajo II), 392, 393 United States v. New Mexico, 485 United States v. Newmont USA Ltd., 326 United States v. Oklahoma Gas & Electric Co., 121 United States v. Oliver, 686 United States v. Oregon, 129, 576 United States v. Orr Water Ditch Company, 520, 529, 564, 565 United States v. Osage Wind, LLC, 362 United States v. Ramsey, 122 United States v. Roberts, 126 United States v. Sandoval, 109, 111 113 United States v. Shoshone Tribe of Indians, 188, 191, 192 United States v. Sioux Nation of Indians, 102, 192, 207, 208 209, 214 United States v. Tawahongva, 686 United States v. Tohono O Odham Nation, 398 United States v. Truckee-Carson Irrigation Dist., 565 United States v. Vasquez-Ramos, 687 United States v. Washington (Boldt Decision) (district court), 495, 632, 645, 646, 647 United States v. Washington (Boldt Decision) (9th Circuit), 632 United States v. Washington (Chehalis Tribe), 646 United States v. Washington (disestablishment of Puyallup reservation), 628 United States v. Washington (habitat protection cases), 643, 650 651, 654, 657, 661 United States v. Washington (hatchery fish), 642, 644, 645 United States v. Washington (Lummi water rights), 511, 520 United States v. Washington (shellfish), 664 United States v. Washington Department of Ecology, 286 United States v. Webb, 153
TABLE OF CASES xxiii United States v. White Mountain Apache Tribe, 386, 393, 394 United States v. Wilgus, 686 United States v. Winans, 76, 219, 471, 477, 478, 494, 498, 612, 629, 630, 642, 643, 663 United States ex rel. Hualpai Indians v. Santa Fe Pacific Railroad Co., 170, 175, 176, 602 Upper Skagit Indian Tribe v. Washington, 646 Ute Indian Tribe v. Utah, 152 Ute Mountain Ute Tribe v. Rodriguez, 464 Ute Tribe of the Uintah and Outray Reservation v. Myton, 152 Vieux Carre Prop. Owners, Residents & Assoc., Inc. v. Brown, 47 Wagnon v. Prairie Band of Potawatomi Nation, 467 Ward v. Race Horse, 601 602 Washington v. Confederated Tribes of the Colville Indian Reservation, 209, 263, 424 Washington v. Washington State Commercial Passenger Fishing Vessel Ass n, 495, 626, 633, 642, 643, 644, 647, 650 651 Washington Department of Ecology v. United States Environmental Protection Agency, 286 Washington Department of Ecology v. Yakima Reservation Irrigation District, 497 Western Energy Alliance v. U.S. Dep t of the Interior, 372 Wheeler v. United States, 252, 255 White Mountain Apache Tribe v. Bracker, 256, 453, 463, 466 467, 469 Wik Peoples v. Queensland, 178 Williams v. City of Chicago, 602 Williams v. Lee, 120, 248, 249, 255, 256 Winters v. United States, 76, 471, 474, 477, 478, 479, 480, 485, 496, 546, 611 Wisconsin v. Environmental Protection Agency, 301 Wisconsin v. Yoder, 21 Worcester v. Georgia, 73, 83, 88, 101, 138, 248, 255 Wyoming v. U.S. Dep t of the Interior, 354, 355 Wyoming v. U.S. Envtl. Protection Agency, 312 Wyoming v. United States, 486, 499, 511 513, 577 Wyoming v. Zinke, 354 Yankton Sioux Tribe v. Gaffey, 153 Yankton Sioux Tribe v. Podhradsky, 113, 124, 153 Youngbull v. United States, 188
Preface to the Fourth Edition We have been quite pleased with the reception of the first three editions of Native American Natu ral Resources Law. It has been especially gratifying to see our efforts encourage the establishment of a new course in the law school curriculum, one which bridges Indian law and natu ral resources and environmental law. Some of our colleagues have been uncommonly enthusiastic about both the casebook and the subject matter. See, e.g., Debra Donahue, A Call for Native American Natu ral Resources in the Law School Curriculum, 24 Journal of Land, Resources, and Environmental Law 211 (2004). In the five years since the third edition, the field of Native American natu ral resources law has continued to expand, and this edition reflects those developments: in legislatures, in the courts, and in the legal commentary. Recent legislation has been particularly impor tant in the energy field. On the federal judicial level, the tension between Congress and the Supreme Court continues: while the Supreme Court has continued its apparent hostility toward tribal sovereignty, tribal governments continue to gain impor tant regulatory roles under federal statutes. And although some state courts have read tribal water rights extremely narrowly, for the most part, tribal property rights continue to gain judicial recognition and protection. We continue to believe that this book is adaptable to either an advanced course in Indian law for students whose principal interest is Indian law, or an advanced natural resources law course for students whose principal interest is in natu ral resources law, or for students whose interest lies in the intersection between the two fields. We have tried to design this book so that students need not have taken either the basic Indian law course or the basic natu ral resources law course to take this course. A word about editing in this edition: in order to increase the book s readability, we have generally eliminated ellipses in our edits of cases and commentary, retaining ellipses only to indicate material that has been edited out within a paragraph. We look forward to continuing to follow developments in this dynamic field for years to come. JRV MCB EKW xxv
Introduction Native American Natu ral Resources Law is a growing, dynamic, exciting area of the law, involving impor tant environmental and economic resources. Yet it has deep historical roots which are inextricably linked to the nation s ethical and legal obligations to the continent s first peoples. The field includes transcendent issues, such as compensation for or restoration of lost resources, as well as pragmatic concerns, such as the ability to site or maintain major facilities, the allocation of water supplies, and pollution control. In a larger sense, the study of Native American Natu ral Resource Law is a worthy endeavor because, as Felix Cohen noted, it serves as a reflection of the dominant society s tolerance for diversity. Moreover, by providing new laboratories to test novel management approaches, the dominant society may learn valuable natu ral resources lessons for the future. Themes of Native American Natu ral Resources Law There are several enduring themes in this text. We believe the material is better understood if the following points are introduced at the outset: 1) Most of the core conflicts in this field are jurisdictional: conflicts over which government has sovereign control over which resources. 2) What you learned in high school civics class that the United States has a federal system of government with dual sovereigns, the states and the federal government is not true. Tribal governments are an impor tant third source of sovereignty that play an increasingly impor tant role in natu ral resources allocation. 3) A critical distinction, one not always recognized in the case law, concerns the difference between questions of sovereignty which government has authority to control natu ral resource allocation and questions of property, that is, owner ship of resources. 4) Large variations in the history of Native American policy continue to influence natu ral resources allocation today. In par tic u lar, the legacy of the allotment era (1887 1934), when tribes lost more than sixty percent of their land base in a purported effort to assimilate the tribes into the mainstream of American life, looms large. xxvii
xxviii Introduction 5) The historical rec ord reveals that, although the federal Congress and Executive have trust responsibilities to protect tribal lands and resources, they have not always been able to fulfill those responsibilities without assistance from the federal courts. 6) Ironically, however, some of the most innovative aspects of Native American Natu ral Resources Law in recent years have come from the U.S. Environmental Protection Agency, when Congress has authorized treatment of tribes as states for pollution control purposes. These initiatives come at a time when the United States Supreme Court has frequently treated tribal claims of inherent sovereignty with hostility. 7) Perhaps the chief characteristic of this field of law is its relative lack of universal princi ples that apply to all situations. The great diversity in Indian Country in terms of distinct treaties, statutes, executive orders, and histories what Charles Wilkinson has called the scattering forces in Indian Country makes case- by- case adjudication the norm and generic statements hazardous.