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Reconciliation and Social Justice Library
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Reconciliation and Social Justice Library |
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This is the first in a series of four discussion papers reviewing Indigenous
land rights jurisprudence in three common law countries: the United States;
Canada; and New Zealand. The fourth paper will address the applicability of
this jurisprudence to the development of Indigenous land rights law in
Australia.
These discussion papers arise from the work of an Australian Research Council
Collaborative Research Grant. The work of the Project is outlined in Discussion
Paper 1.[3]
This Paper reviews the powers of US Indian Tribes (outside of Alaska)[4] to manage the environment of their reservations
and control access to, protect and manage natural resources subject to tribal
control on and off those reservations. These powers generally arise from
judicial acknowledgment of the common law recognition of the Indians'
occupation of their lands as organised Tribes prior to white settlement.
The first section of the Paper provides a brief history of the development and
progress of US Indian Law. The second section gives an overview of the sources
of powers available to Tribes who seek to assert authority over natural
resources on and off reservations, focusing in particular on US Tribes'
inherent sovereignty and the federal trust responsibility owed to them. The
third section delineates Indian rights and powers in specific natural resource
areas: water, hunting and fishing, minerals, timber, and landuse planning. The
Paper concludes by summarising US law and briefly considering the potential of
US jurisprudence to inform the nature of native title law in Australia.
The `legal history' of Native Americans in the United States has been
extensively addressed elsewhere.[5] While an
in-depth review of this history is beyond the scope of this Paper, one must
have some knowledge and understanding of the history and treatment of Native
Americans by the US federal government to understand Indian law.
Most commentators identify six major periods of American Indian policy:
Discovery, Conquest, and Treaty-Making; Removal, Relocation, and Reservations;
Allotment and Assimilation; Reorganisation and Self-Government; Termination;
and Self-Determination.[6] It is this unique
history and associated ambivalence which is reflected in the laws dealing with
Indian sovereignty and jurisdiction in `Indian Country'.[7]
Long before the Europeans `discovered' America in the late fifteenth century,
Indians were living there, utilising the land and waters and their resources to
provide for all their needs. Some Indian Tribes had highly developed
communities and engaged in trade, while others were small, nomadic family
groups.[8] The discovery of Indian Tribes in
America posed a problem for the British Crown as it began to colonise North
America in the seventeenth century: how to secure the peace and coexistence of
the new settlers with those peoples who already occupied the `new world'.
Whether arising from a sense of judeo-christian morality, monarchal
benevolence, or fear of extended Indian wars, the Crown adopted the position of
protector and guardian of the Tribes from the excesses of the colonists.[9]
Upon independence in the late eighteenth century, the new United States
government faced similar problems of non-Indian aggression and threatened
Indian retaliation.[10] In order to maintain
some stability, the drafters of the Constitution placed Indian affairs in the
hands of the federal government. Congress was granted the power to `regulate
Commerce with the Indian Tribes' while the President was authorised to make
treaties with the Indians, on the consent of the Senate.[11] Congress also enacted a series of Trade and Intercourse
Acts with the clear intent to separate Indians and non-Indians and to subject
nearly all interaction between the two groups to federal control.[12] The government thus entered into a policy of
isolation which it believed would adequately protect Indians from settlers.
During the early years of nationhood, the government began negotiating treaties
with the Indian Tribes. The treaty terms usually involved the cession of large
tracts of land in exchange for less territory, federal protection from local
settlers, and the right to be left alone in their new homeland. Prior to the
British withdrawal from the United States' territory in 1815, the treaty
negotiations between the United States and the Tribes bore the semblance of
arms-length negotiations between sovereign governments seeking peace, trade,
and military alliances.[13] These early
treaties often obligated the United States to deliver certain goods (such as
farming tools, cattle and wagons) to the Tribe, to provide health and education
services to the Tribe, and to pay annuities.[14] The early treaties recognised Tribes as sovereign powers,
possessing the right to govern their own internal affairs and to be free from
state interference.[15]
After the British left US territory following the War of 1812, American
Indians, no longer able to ally themselves with either the British or the
Americans, lost most of their bargaining power and the treaties increasingly
reflected the settlers' pressures for land and the dependent status of the
Tribes in relation to the federal government.[16] Negotiators for the United States used highly effective
means, including fraud, coercion, bribery, and threats to persuade Tribes to
cede land or, better yet, leave their traditional homelands for reservations in
the far west.[17] As the Supreme Court
acknowledged in a 1970 decision, these treaties were generally imposed on
Indian Tribes, leaving them `no choice but to consent.'[18]
The federal government quickly realised that drawing lines around Indian
Country alone would not adequately isolate Indians and prevent friction between
Indians and settlers who wanted Indian land. The government therefore modified
its isolation policy to include removal to the western lands.[19] As history has shown, manifest destiny prevailed, and
white settlement did not stop at the Mississippi but continued to the Pacific.
Indian Tribes found themselves continually moved, relocated, and pushed
westward. Tribal resistance proved unsuccessful, as exemplified in the
`voluntary' removal of the `Five Civilised Tribes'[20] and the hundreds of treaties signed that relegated Tribes
to reservations far from their traditional homelands. Even so, Indians still
had too much land for white settlement purposes. Between 1871 and 1928,
Congress changed Indian policies from isolation to assimilation.
For various reasons, some more malicious than others, the federal government
determined that Indian welfare required assimilation. If Indians were given
individual plots to cultivate, they would prosper and become assimilated into
mainstream America as Jeffersonian yeoman farmers. The organised Tribe and its
extensive control of communal land stood as a barrier to assimilation, as well
as to land-grabbing speculators.
In 1887, Congress passed the General Allotment Act, commonly referred to
as the Dawes Act.[21] The Act
authorised the President to allot tribal lands in designated acreage to
individual Indians and to hold such allotments in trust for them for 25 years
(or less if the Indian was competent and capable of managing his or her
affairs) at which time the land could be conveyed to the Indian in fee simple,
free from all encumbrances.[22] The holding
period was to protect the Indian allottees from state taxation and to allow
them to learn farming.[23] Under the Act, the
allottees became US citizens and subject to state criminal and civil law.[24] The most detrimental part of the Act allowed
the government to purchase all surplus land remaining after allotments so as to
make it available for homesteading by non-Indians.[25]
During the 50 years allotment lasted, about 90 million acres left Indian
control.[26] Surplus land was sold; allottees
were forced to sell their land to pay state taxes; and Indians lost their land
at the hands of savvy settlers. The legacy of allotment has resulted in
checkerboard or patchwork ownership of reservation land, jurisdictional
nightmares, extensive leasing of tribal and allotted lands, and the loss of the
`measured separatism' promised in every treaty.[27]
Despite great efforts to dismantle Indian Tribes during the latter part of the
19th and early part of the 20th centuries, tribal
traditions and cultures were not completely destroyed by allotment era reforms.
Reservations were still `Indian Country', but the physical and spiritual life
of Indians lay in tatters. Indians lived in abject poverty, with abominable
health services and educational programs.[28]
Their land base was diminished and the remaining reservations were
checkerboarded with non-Indian land holdings interspersed throughout
reservations.
In 1934, Congress enacted the Indian Reorganisation Act (IRA) which
encouraged tribal self-government.[29] The
United States repudiated the previous policy of allotment and sale of surplus
reservation land. Tribes were encouraged to consolidate their land base and
control over it, to adopt federally approved constitutions and bylaws, and to
set up formal tribal governments While the IRA has been subject to criticism
for being `too little, too late',[30] some
Tribes took advantage of the opportunity to create governments more autonomous
from the federal government's oversight and to assert their sovereignty.
In the 1950s, still faced with the `Indian problem', Congress decided that
federal policy needed to change again. The goal, once again, was to integrate
Indians into mainstream life, to end federal supervision of Indians as wards of
the government, and to grant them all the rights and prerogatives pertaining to
American citizenship. The solution was to terminate the Tribes and free them
from the oppressive federal Indian bureaucracy controlling daily life on the
reservations.
Congress adopted a policy statement and passed individual termination acts and
other assimilationist legislation during the termination era, much of which
allowed unprecedented state intrusion into Indian Country and tribal
programs.[31] During this time, about 109
Tribes were terminated.[32] In exchange for a
cheque for the value of the land, those Tribes lost their land base, their
tribal authority over education, adoptions, alcohol consumption, landuse
planning, and other areas of social and economic concern, as well as their
identity as Indians. Tribes faced extreme discrimination in state courts which
now had jurisdiction over criminal, civil, and taxation matters.
Termination did little to promote freedom or to root out discrimination. It
ended the special federal-tribal relationship and transferred almost all
responsibilities for, and powers over, affected Indians from the federal
government to the states. The historic special status of Indians abruptly ended
for terminated individual Indians and Tribes, without their consent or
participation in the process.
In 1970, President Nixon repudiated the termination policy, enunciated a policy
of Indian self-determination, and stressed the continued importance of the
trust relationship between the federal government and the Tribes.[33] While this era may not have fundamentally
reformed federal-tribal relations, it has resulted in an unprecedented volume
of favourable Indian legislation.[34] In
reauthorisations of many environmental statutes, Congress has enacted
provisions that treat Tribes as states, giving them primary authority to
enforce regulatory statutes.[35] The vast
majority of this legislation was sponsored at the behest or with the
participation of the Tribes. The legislation generally involves the Tribes as
permanent players in the federal system. In the last few years, the president
and governmental agencies have issued policies that acknowledge the federal
trust responsibilities to Tribes, recognise Tribes as sovereigns, and encourage
government-to-government relations in matters involving a Tribe or its
resources.[36]
Even so, it remains to be seen if or how the self-determination era will
persist. The Supreme Court can no longer be seen as the protector of tribal
interests and sovereignty. As Tribes have successfully asserted and exercised
fishing and hunting rights, public opposition has been bitter and sometimes
violent.[37] Likewise the success of Indian
gaming for a few Tribes has raised the ire and attention of the states and
Congress. In a case pending before the Supreme Court, Alaska Natives may
discover that their land allocated pursuant to the Alaska Native Claims
Settlement Act is not `Indian Country' and that the tribal villages no
longer have the right to act as sovereign governments[38] In short, there is no reason to believe that American
policy towards Indians will not shift again as the political winds change.
Indian Tribes have two primary avenues that may be used to exercise control
over their lands and natural resources on and off-reservation: inherent
sovereignty and the federal trust responsibility. While a detailed discussion
of either power is beyond the scope of this essay, the basic outlines of each
are reviewed below.
To reservation Indians, sovereignty means independence -- an existence separate
and apart from the dominant white society. This `independence' includes the
capacity to act as a government, the power to make and enforce laws on matters
of importance to the Tribe, and the right to be treated as a sovereign
government.[39] To courts, tribal sovereignty
refers to those `inherent powers of a limited sovereignty which ha[ve] never
been extinguished' by treaty, statute, or implication as a result of the
Tribes' dependent status.[40]
While the outer contours of inherent tribal sovereignty remain unclear, courts
have always recognised that US Indian Tribes were independent, distinct
political entities who retained some, but not all, sovereign powers.[41] Inherent tribal sovereignty traditionally
includes the right to govern one's members and one's territory,[42] but generally does not extend to the activities of
non-members in Indian Country.[43] The Supreme
Court has recognised only two exceptions (the Montana test).[44] First, a Tribe may regulate, through
taxation, licensing, or other means, the activities of non-members who enter
consensual relationships with the Tribe or its members, through commercial
dealing, contracts, leases, or other arrangements[45] Second, a Tribe may retain inherent power to exercise
civil authority over the conduct of non-Indians on fee lands within its
reservation `when that conduct threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare of the
tribe.'[46]
Contemporary Supreme Court decisions have repeatedly rejected tribal efforts to
enact comprehensive land management schemes in heavily allotted parts of the
reservation,[47] to regulate hunting and
fishing on non-Indian fee lands[48] or on
condemned reservation land,[49] and to
regulate non-Indian water use within reservation boundaries.[50] A fundamental misunderstanding of tribal sovereignty
drives these decisions. The current Supreme Court views Tribes more as
proprietary voluntary organisations, a concept that was rejected in
Wheeler,[51] than as sovereign
governments[52]
-
If the Tribes were no more than fraternal associations then it would make
sense to limit their authority only to members and their activities, but Tribes
have to protect and manage tribal resources and reservation environments (which
do not respect the checkerboard nature of land ownership on most reservations).
While US Indian Tribes continue to hold considerable power to manage their
reservation lands, environment, and resources,[53] the `modern' Court's narrow perspective of sovereignty
ignores the long history of Tribes as governmental entities with rights,
responsibilities, and obligations to their members and territories. Tribes need
to be able to exercise the requisite control, that is, sovereignty over their
territory, to protect both their lands and their unique interests in those lands.
Only in the area of environmental protection does one not see a retrenchment
away from inherent sovereignty. In reauthorisations of environmental protection
statutes, Congress has enacted `Tribes as States' (TAS) provisions which
authorise Tribes to enforce pollution control statutes reservation-wide.[54] The US Environmental Protection Agency
(EPA), the primary federal agency in charge of enforcing the nation's pollution
control statutes, has issued Indian policies which reaffirm its commitment to
government-to-government relations with Tribes, recognise the Tribes as
`sovereign entities with primary authority and responsibility for the
reservation populace', and emphasise the agency's commitment to enabling Tribes
to assume regulatory and program management responsibilities for reservation
lands.[55]
For example, EPA's implementing regulations for the TAS provision for the
Clean Water Act authorise tribal development of water quality standards
for the management and protection of water resources within the borders of the
Indian reservation.[56] In a recent decision,
the Ninth Circuit upheld the regulations, finding that they properly followed
the Montana test for exercise of inherent tribal authority over
non-member activities.[57] In an earlier
decision, the Tenth Circuit upheld the adoption of tribal water quality
standards that required upstream dischargers to comply with the more stringent
downstream tribal standards because such standards were in accord and within
the inherent powers of tribal sovereignty.[58]
Finally, courts have affirmed EPA rulings which preclude the application of
state hazardous waste laws to all persons in Indian Country.[59]
The source of authority for the exercise of tribal power in the environmental
protection area can be justified in two ways: first, as a Congressional grant
of authority; and second, as a recognition of inherent sovereignty. Arguably,
the authority to manage tribal resources arises from a mix of both sources of
power, but clearly, the judicial recognition of tribal sovereignty provides the
foundation for congressional grants of authority. Without the one, the other
would not have occurred. In any event, Tribes have begun to develop programs to
protect tribal resources. Such efforts include not only the development of
water quality standards, but also solid waste management regimes,[60] joint ventures,[61] recycling and job development programs,[62] and public education.[63] New organisations, some supported with EPA funding, have
been formed to support such efforts.[64]
Unfortunately, many Tribes still lack the technical, financial, and
administrative resources to develop such programs, while the EPA lacks
sufficient personnel or funding to assist them.
A general trust relationship exists between the federal government and the
Indian peoples.[65] The concept first appeared
in Chief Justice Marshall's decision in Cherokee Nation v. Georgia where
he concluded that US Indian Tribes could best `be denominated domestic
dependent nations... in a state of pupilage' and that their relation to the
United States resembled that of `a ward to his guardian.'[66] One year later, in Worcester v. Georgia, Marshall
emphasised the federal government's duty to protect tribal lands, resources,
and government by holding that the laws of Georgia would have no effect in
Cherokee territory.[67]
These early cases provide two distinct models for viewing the federal trust
responsibility.[68] At one end is Cherokee
Nation's guardian-ward model and its line of cases (exemplified by the
Lone Wolf decision) which draw on tribal dependency and the federal duty
of protection to support nearly unchecked federal power over Tribes, including
power over their internal governments[69] At
the other end is the Worcester model and its line of cases which presume
native sovereignty and focus the government's trust duties not only on
protecting tribal lands and resources but also on protecting their `measured
separatism'.[70]
However, the trust relationship is viewed, courts agree that it imposes general
fiduciary obligations on the federal government to protect tribal interests.
Nevertheless, the trust doctrine has never effectively restrained Congress in
its dealings with Indians.[71] Courts have
regularly upheld a wide range of questionable congressional actions as part of
its plenary power to manage Indian affairs (eg. unilaterally abrogate treaties,
terminate the trust relationship, substitute tribal lands for money or property
of equivalent value). For a hundred years, courts presumed `perfect good faith'
by Congress in its dealings with Indians.[72]
This position changed in 1980. In United States v. Sioux Nation of
Indians, the Supreme Court affirmed Congress's power when acting as trustee
for the Tribes to transfer land out of Indian ownership as long as Congress
could show objective good faith efforts to provide Tribes with cash or property
of equivalent value.[73] However, in assessing
fair equivalent value, the Court finally rejected Lone Wolf's good faith
presumption in favour of a `thoroughgoing and impartial examination of the
historical record'.[74] Nevertheless, the
Sioux Nation decision did not impose any real fiduciary standards on
Congress. Instead it merely requires that any tribal property taken by Congress
meet the constitutionally required `fair compensation' constraints imposed by
the Fifth Amendment.[75]
The only other constraints on congressional action are judicially-created
canons of treaty interpretation and abrogation.[76] Since Congress is exercising a trust responsibility when
dealing with Indians, courts presume that Congress's intent is benevolent. When
construing Indian treaties, the Supreme Court has required that treaties be
interpreted as the Indians would have understood them,[77] that ambiguous words and phrases be resolved in favour of
the Indians,[78] and that treaties be
liberally construed in favour of Indians.[79]
Similarly, courts have been extremely reluctant to find congressional
modification or abrogation of treaty rights.[80] These rulings require a showing of `clear and plain'
congressional intent to extinguish or modify treaty rights.[81] As one commentator notes, however, even with the canons,
in the congressional context, the trust doctrine is little more than a moral
obligation without strict, justiciable standards for its enforcement.[82]
In contrast, courts have used the trust doctrine to impose strict fiduciary
duties on executive agencies in the administration of Indian affairs.[83] In United States v. Sioux Nation, the
Supreme Court explained that in carrying out its treaty obligations with the
Indian Tribes, the federal government had charged itself with `moral
obligations of the highest responsibility and trust' and that its conduct
should therefore be judged by `the most exacting standards.'[84] Courts have applied the ordinary standards of a private
fiduciary to executive administration of Indian property or federal programs.[85] One court has argued that the trust
responsibility includes both procedural and substantive duties.[86] Under the procedural duty, the federal government must
consult with Tribes in the decision making process to avoid adverse effects on
treaty resources.[87] Substantively, the
government must protect `to the fullest extent possible' the Tribe's treaty
rights and the resources on which these rights depend.[88]
While the source of the Indian Trust doctrine is the original assumption of
supervisory power (ultimate sovereignty) over Indian Tribes, enforceable
fiduciary duties commonly arise in two circumstances.[89] First, treaties, agreements, statutes, executive orders,
and administrative regulations which plainly give the federal government full
responsibility to manage tribal lands and resources held in trust for the
benefit of Indians establish a fiduciary relationship.[90] In addition, a fiduciary relationship necessarily arises
when the government assumes such elaborate control or supervision over tribal
money or properties even though the authorising or underlying statute says
nothing about a trust or fiduciary connection.[91]
Indians have invoked the trust responsibility not only to require compensation
for federal mismanagement of tribal resources but also to seek additional power
in decisions affecting such resources. For example, the Nez Perce Tribe has
primary responsibility for monitoring a reintroduced wolves project in Central
Idaho. The Department of Interior has involved the Nez Perce primarily because
of its commitment to implement the trust obligations. Other examples include
the participation of the Pacific Northwest Tribes in addressing the diminishing
salmon and steelhead runs and the EPA's adoption of programs involving Tribes
in regulating and protecting land from pollution. It is often unclear whether a
Tribe's participation arises from its inherent sovereignty, treaty rights, or
federal trust responsibilities, but the end result is that Tribes participate
in the management of resources much more than in previous years.
In the semi-arid western United States, economic and physical survival depends
on water. In the mid to late 1800s, without even a nod to Indian water rights,
western states adopted the miners' mantra of water law -- `first in time (to
divert and use, that is, `appropriate'), first in right.'[92] Not surprisingly, states were shocked to discover that
Indians had reserved water rights, with the Tribes usually having the most
senior water rights in the area.
As US Indian Tribes have sought to exercise their water rights, to establish
tribal agencies to administer tribal water codes, and to regulate water use
within reservation boundaries, they have faced anger from states and current
water users, a morass of cases that have left open numerous issues, and the
potential loss of this valuable resource. The following sections address the
nature, scope, and extent of Indian reserved water rights, the quantification
of such rights, and the regulation and administration of water in Indian Country.
The Winters doctrine provides that upon the creation of an Indian
reservation by treaty, statute, or executive order, the federal government
impliedly reserved that amount of unappropriated water necessary to fulfil the
purposes for which the reservation was created.[93] These water rights have a priority date of either the
date the reservation was established[94] or
time immemorial.[95] As opposed to water
rights held under state law, Indian water rights cannot be lost due to
non-use.[96] These rights extend to streams,
lakes, and springs which arise upon, border, or traverse a reservation. It
remains an open issue whether Winters rights extend to groundwater that
underlies the reservation.[97] It also remains
an open issue whether Winters rights entitle a Tribe to insist upon a
certain water quality as well as quantity.[98]
Since the tribal reservation's purpose (enunciated in the treaty, executive
order, or other treaty substitute) defines the nature, scope, and extent of the
Indian water right, the judicial interpretation of specific treaty language can
significantly affect a Tribe's rights. Indian treaties usually have general
language evincing a homeland purpose for the reservation and specific language
identifying the primary purpose of the reservation to be the transformation of
nomadic Indians into `pastoral and civilised people', that is yeoman farmers.[99]
Many Tribes, especially those in the mid-West and Great Plains, have
significant quantities of `paper' water.[100]
However, in many instances, the water resource remains untapped because those
Tribes cannot afford or do not want to develop the large-scale irrigation
projects necessary for profitable farming in these areas and the courts have
been unwilling to interpret the treaty language to allow the Tribes to use
their reserved water rights for purposes other than those related to farming
(despite the fact that `civilised' people may use water for a variety of
purposes). For example, Tribes could immediately benefit from their water
rights if they could use them for increased stream flows to improve fisheries
and wildlife, which could eventually support a tribal hunting and fishing
industry. These and other non-consumptive uses would cost the Tribe nothing but
could impose significant impacts on other appropriators to the extent that a
Tribe's non-consumptive reservation of water prevents non-tribal appropriators
from depleting streams below a certain level. But states and local users who
have been using Indian water for free have successfully opposed tribal efforts
to use the water non-consumptively.[101]
Tribes have faced difficulties when trying to change the water use to anything
other than the original agricultural purpose. While this area of the law
remains in flux, states have successfully argued that Tribes must resort to
state law to change their use.[102] Such a
ruling essentially maintains the status quo, with Tribes not using their water,
because most prior appropriation states do not allow changes in use that will
adversely affect junior users. Moreover, any contemporary application for a
water right would be virtually useless in these over-appropriated stream
systems because of the late priority date. As long as Tribes are limited to
water for irrigation purposes and provided no funding, they are deprived of one
very real, and potentially significant means of subsistence. Indians have once
again been frozen in an instant of time, unable to evolve and use their limited
reservation resources as their societies develop.[103]
For fifty years after Winters, Indian water rights were relegated to the
`legal attic.'[104] In 1963, the US Supreme
Court reaffirmed the Winters doctrine, reiterating that the government
must have intended to reserve water for the Indians because otherwise their
lands would have been useless.[105] The
Court quantified the Tribe's rights, finding that enough water was reserved `to
irrigate all the practicably irrigable acreage [PIA] on the reservations.'[106] In the Court's opinion, the PIA standard
was a feasible and fair way to provide water necessary to satisfy the future
and present needs of the Indian reservations.[107] However, to the extent that reservations were created
for `homeland' or other purposes, the PIA standard does not apply. Courts use
different standards to quantify these other water rights.[108]
Tribal regulation and administration of Indian reserved water rights, including
the authority to change uses, are essential if sovereignty and self-government
are to have any meaning. Unless the Tribes have the power to make decisions
about how their water is to be used on the reservation, they will never be able
to economically develop and provide for their members.
US Tribes do retain some power over water allocation. They may regulate the
water use of Indians on their reservations as part of their inherent
sovereignty.[109] While they may enact water
codes and regulations, the Tribes have been stymied by the federal moratorium
on the approval of tribal water codes.[110]
Many Tribes have water codes nonetheless.[111]
However, a serious debate rages when Tribes seek to regulate non-Indian water
use within reservation boundaries. Applying the Montana test, the Tribes
may only regulate non-Indians on fee lands where the water use has some
substantial and direct effect on tribal health or welfare, political integrity,
or economic security.[112] Although it would
seem that fragmented administration of stream systems would necessarily have a
substantial and direct effect on tribal health and welfare, the courts have not
seen it that way and instead have allowed the states to regulate non-Indian use
of excess waters.[113]
Fearful that the Tribes may yet figure out how to use their paper water rights
and in need of certainty, the states have sought to quantify Indian water
rights by joining the Tribes or the United States in general (state
administered) stream adjudications. The authority for doing so rests on shaky
ground but has been repeatedly upheld.
In 1952, Congress enacted the McCarren Amendment which waived federal
sovereign immunity to be joined in general stream adjudications.[114] The Supreme Court extended the
McCarren Amendment to the adjudication of tribal reserved water rights,
whether they are asserted by the Tribes[115]
or the United States on behalf of the Tribes.[116] In 1994, the Ninth Circuit required the Tribes to
adjudicate water rights claims in a state administrative general stream
adjudication.[117] Thus, the Tribes'
attempts to adjudicate water rights claims in federal court have been rebuffed,
while the courts have deferred to state expertise in water law matters.
From a tribal perspective, adjudicating Indian reserved water rights in state
court is not appropriate because of the states' traditional animosity to tribal
rights, their lack of jurisdiction over Indian affairs, the federal nature of
Indian water rights, and the early priority date, which as a practical matter,
obviates the need to adjudicate Indian rights with other water rights. Rather,
the Tribes would prefer to adjudicate their rights in federal court and
incorporate their right in the state decree at the conclusion of state
proceedings.[118] The extension of the
McCarren Amendment to state adjudications of tribal water rights in
administrative proceedings reflects the lessened recognition of Tribes as
sovereign governments
Because of the costs, uncertainties, and difficulties inherent in state general
stream adjudications and the limitations placed on tribal use of water, many
Tribes have begun negotiating water settlements[119] Such settlements may provide the Tribes with added
benefits. For example, settlements may enable Tribes to use water for a broader
array of purposes, such as instream flows for fisheries, recreation, wildlife,
and tourism, and allow some forms of off-reservation uses, such as water
marketing.[120] Tribes may obtain irrigation
projects, restoration of fisheries, development of minerals, establishment of
small businesses, promotion of tourism, recreation, or crafts, or other
revenue-generating projects in settlements in exchange for quantifying tribal
water rights, waiving tribal priority dates, or limiting water usage. Tribes
can also negotiate the right to market Indian water.
Negotiated water settlements take time, money, and usually, congressional
approval. In the last few years, the federal government's efforts have slowed
as Congress has been less willing to allocate funds to bolster the
settlements[121] Even so, many commentators
view settlements sceptically and wonder if this is not the modern way of
stripping Indians of any remaining assets.
Fishing and hunting have always been vitally important practical and spiritual
activities to American Indians. [122] As a result, many Tribes insisted upon specific
provisions in the treaties that expressly reserved their traditional rights to
fish and hunt. As the Supreme Court acknowledged in an early 20th
century case, these rights `were not much less necessary to the existence of
the Indians than the atmosphere they breathed'.[123]
Today, many Tribes depend on fishing and hunting to provide revenue and
livelihoods for tribal members. Some Tribes have expanded their traditional
commerce in fish by operating fishing fleets and packing companies. Other
Tribes sell recreational fishing and hunting licenses to non-members to raise
revenue for the reservation.
The tribal exercise of treaty protected hunting and fishing rights, free from
state regulation, has been fiercely litigated.[124] While tribal regulation rarely has any significant
impact on state revenues, the states vigorously fight tribal efforts to
exercise their sovereignty over non-Indians who fish and hunt on reservation.
Many of these states, particularly in the Pacific Northwest and the Great Lakes
area, depend on commercial fishing as a major part of their economies and fear
that Tribes may yet capture fish and wildlife revenues as they develop expert
agencies and related businesses.
Tribes have exclusive jurisdiction over on-reservation fishing and hunting by
tribal members.[125] This authority flows
from the accepted understanding of tribal sovereignty, that is, the right to
control one's internal affairs.[126] It does
not matter whether the actual land ownership is Indian or non-Indian, as long
as the tribal member's activity is on the reservation.
No clear rule applies to situations where Tribes assert control over non-Indian
fishing and hunting within reservation boundaries. Following the
Brendale notion of closed and open areas,[127] courts are more willing to allow Tribes to regulate
non-Indian fishing and hunting when they can show consolidated tribal land
bases and a coordinated effort to develop wildlife or fisheries resources
without state involvement. The decisions degenerate into a balancing of
interests: federal, tribal, and state -- the smaller the state's interests, the
better chance of tribal regulation.
In New Mexico v. Mescalero Apache Tribe,[128] the Court refused to allow the state to exercise
jurisdiction over non-Indian fishing and hunting on the reservation. The Tribe
and federal government had expended significant time and resources to develop
the reservation's hunting and fishing resources. Using federal funds, the
Mescalero Apaches had established eight artificial lakes, stocked by the US
Fish & Wildlife Service; the National Park Service had provided the initial
herd of 162 elk which the Tribe had increased to about 1,200; and the Tribe and
federal government jointly conducted a comprehensive management program,
including the adoption of hunting and fishing ordinances which conflicted with
state regulations. Other crucial factors included the fact that the Tribe owned
all but 193.85 of more than 460,000 acres (even then, 160 acres were unimproved
and unoccupied and 10 acres belonged to the Catholic Church) and the state had
minimal involvement and insubstantial loss of revenue. Concurrent jurisdiction
and the application of state laws on the reservation would have effectively
nullified tribal efforts to manage its resources.[129]
Without a doubt, the facts in New Mexico v. Mescalero were compelling.[130] In many other cases, the Tribes have not
fared as well. In South Dakota v. Bourland,[131] for example, the Supreme Court refused to allow tribal
regulation of non-Indian fishing and hunting in an area within the reservation
boundaries that had been condemned by the federal government for construction
of a dam and reservoir. The Court reasoned that Congress had opened such lands
for public recreational use and made hunting and fishing subject to federal
regulation.[132]
Wild animals and fish do not respect political boundaries, therefore wise
resource management often requires coordination of goals and regulatory
approaches. Even so, states and Tribes attempt to assert exclusive jurisdiction
over the natural resources and litigation ensues. Only after litigation stalls
or becomes prohibitively expensive have states and Tribes begun to work
together and enter cooperative wildlife management agreements.[133]
The nature of tribal off-reservation fishing or hunting rights varies widely
according to the language of the treaty.[134] Thus while fishing rights in the Pacific Northwest have
been viewed as `continuing or perpetual' property rights, hunting rights have
often been considered defeasible privileges giving way as the status of `open
and unclaimed land' changes.[134]
Nevertheless, the nature, scope, and extent of Indian fishing rights often
depends on whether a court applies the Indian canons of construction.[135] In a series of Pacific Northwest fishing
cases,[136] the Supreme Court has
interpreted the Indian treaty right `to take fish at all usual and accustomed
places in common with all citizens of the territory' to mean far more than just
an equal opportunity, shared with millions of other citizens, `to dip their
nets into the territorial waters.'[137] The
off-reservation fishing right includes a right of access on private property to
reach traditional fishing places.[138] It
precludes state assertion of licensing fees or other regulations on Indians
unless indispensable to the effectiveness of state conservation programs.[139] However, the courts have been unwilling
to allow states to expand the `interests of conservation' loophole too far.
States may only regulate the manner of fishing and the size of the take and
restrict commercial fishing provided that the regulation `meets appropriate
standards and does not discriminate against Indians.'[140]
Pacific Northwest Tribes have the right to take a fair share of the available
salmon and other anadromous fish runs that pass through tribal fishing areas.[141] The Court has created the `moderate
living' doctrine, which defines a fair share as a 50% allocation based on the
Indians' reliance on the fish for their livelihood and then adjusting slightly
downward due to other relevant factors.[142]
The Tribes are not confined to the methods of fishing, hunting, or gathering
that they used at treaty time.[143]
The issue of whether the Tribes have a right to protect fish runs and prevent
habitat degradation remains open. In Washington-Phase II, which was
subsequently vacated on procedural grounds, the US District Court held that the
state may not degrade fish habitat to the extent that it would deprive the
Tribes of moderate living needs.[144]
Finally, while the federal government has generally joined with Indian Tribes
in contesting state challenges to Indian fishing and hunting rights, national
conservation laws have brought Indians into conflict with the United States.[145] The basic principle seems to be that
enunciated by Justice Douglas in Puyallup II: We do not imply that these
fishing rights persist down to the very last steelhead in the river. Rights can
be controlled by the need to conserve a species; and the time may come when the
life of a steelhead is so precarious in a particular stream that all fishing
should be banned until the species regains assurance of survival. The police
power of the State is adequate to prevent the steelhead from following the fate
of the passenger pigeon; and the Treaty does not give the Indians a federal
right to pursue the last living steelhead until it enters their nets.[146]
While such a premise appears facially neutral and reasonable, benefiting both
the fisheries and Indians in the long run, the effects have often been borne
more by the Indian Tribes than others. For example, in efforts to protect
salmon in the Pacific Northwest, the federal government has often sought to
decrease the Indians' right to take fish before pursuing more difficult
avenues, such as forcing the federally-operated dams to operate in a more
`fish-friendly' manner. Indians have responded in different ways: litigation,
co-management, and settlement.[147]
Another example of Indian treaty rights conflicting with federal conservation
goals has involved the taking of endangered species for ceremonial purposes.
For example, various federal laws prohibit killing bald or golden eagles and,
in some cases, possessing even a single eagle feather;[148] yet many Tribes revere the eagle and use their feathers
and other parts in religious ceremonies, claiming that treaty provisions
authorise such activities. The courts, however, have (with one exception)
consistently refused to overturn convictions based on violations of federal
conservation laws where Indians asserted treaty rights[149] or constitutional claims of free exercise of religion[150] as a defence.
Indian Tribes are the third largest owners of mineral resources in the United
States.[151] Indian lands are estimated to
contain roughly three percent of the nation's known oil and gas reserves,
thirty percent of the coal west of the Mississippi, a third or more of the
nation's uranium, and smaller quantities of many other valuable minerals.[152] The development of these resources often
provides the only hope for economic development on many reservations, and over
time, the Tribes have played different roles in mineral development: that of
owner, lessor, developer, and regulator.[153]
Tribes own the minerals and other natural resources on reservations absent an
express provision in the relevant treaty or treaty substitute reserving a
federal interest in minerals. In United States v. Shoshone Tribe of
Indians,[154] the US Supreme Court notes
that subsurface minerals are `constituent elements of the land itself', and
holds that when land was set aside as a homeland for a Tribe, whether by
treaty, agreement, or executive order, the Tribe acquired all `beneficial
incidents' in the land, including beneficial ownership of the natural
resources.[155] Tribes thus own the mineral
estates on tribal trust lands. Yet continuing the legacy of allotment, Tribes
do not own the minerals on allotted or fee lands.[156]
Moreover, the rule that precludes Tribes from selling or conveying trust lands
to any person without the approval of the federal government[157] also applies to the sale of tribal resources, like
minerals.[158] Most Tribes lack the
resources to exploit the mineral estate themselves and thus depend on
non-Indian entities to pay bonuses, rents, and royalties to do so.
Until recently, tribal involvement in the exploitation of minerals on the
reservations was primarily that of a lessor. Congress quickly enacted
legislation that authorised leasing of tribal lands. Some of the early leasing
statutes did not even require tribal consent, but rather trusted the Interior
Secretary to exercise his discretion and responsibly protect the Indians'
interests.[159]
Today, two main statutes govern mineral leasing on tribal lands: the Indian
Mineral Leasing Act of 1938 (1938 Act) and the Indian Mineral
Development Act of 1982 (IMDA). In 1938, Congress enacted the Indian
Mineral Leasing Act to achieve uniformity in this substantive area and
repeal all `inconsistent' legislation.[160]
All mineral leases of tribal land require consent by the Tribal Council,
subject to the approval of the Secretary of the Interior. The leases were to
last for a period `not to exceed ten years and as long thereafter as minerals
are produced in paying quantities.'[161] All
leases were to be granted on the basis of competitive bidding and payment of a
bonus consideration, though the Secretary could authorise a mineral lease by
private negotiations if no satisfactory bid was received. Both the Tribes and
Department of Interior were given the right to access leased premises for
inspection.
The 1938 Act excluded certain Tribes and allowed for Tribes organised
under the Indian Reorganisation Act to lease lands for mining in accordance
with their constitutions and charters.[162]
In addition, the Act did not generally include leases of allotted lands, and
more importantly, did not require tribal consent or even consultation prior to
the issuance of a mineral lease for allotted lands.[163]
While the 1938 Act introduced uniformity into the leasing process, it
did not significantly increase tribal control or involvement. Tribes generally
signed a standard lease form developed by the Department of Interior and their
consent was only necessary for the initial decision to lease tribal lands for
mineral development.[164] The Secretary
could choose which specific tracts to offer as long as it was within an area
previously authorised. In addition, the Tribes could not unilaterally cancel a
lease for breach of the lease terms. Indian Tribes had to rely on the
benevolence of the Secretary or courts, who often found cancellation to be too
harsh a remedy and instead awarded damages, an adjustment of bonuses, rents, or
royalties or damages.[165]
Finally, the Act was supposed to ensure that Tribes received `the greatest
return from their property'. In reality, the federal government failed in its
obligations to the Indians. The Tribes received only minimal levels of income
due to: below-market bonus bids, rents, and royalties as a result of inadequate
advertising, minimal geological information, and poor selection of tracts
offered for bids; royalty mismanagement; inadequate accounting practices; and
mineral theft and fraud.[166]
Indian Tribes responded by bringing breach of trust actions against the
government. In Jicarilla Apache Tribe v. Supron Energy Corp., the Tenth
Circuit held that, like the timber statutes, the Indian Mineral Leasing
Act and its implementing regulations created enforceable trust
obligations.[167] The court observed that
the government owes a fiduciary duty to ensure that the Tribes receive the
maximum benefits from the mineral resources and must act at all times in the
best interests of the Tribes. The Secretary's duties to the Tribes extend to
approval of leases, monitoring of lessee's compliance with lease terms and
federal regulations, determination of the method of royalty calculations, and
approval of communitisation agreements for oil and gas.[168] Courts have not, however, readily found liability in
these breach of trust actions.
While the 1938 Act dramatically improved the scheme governing mineral
leasing on tribal lands, the Tribes still had little control, and the Act did
not offer much flexibility to change that. Thus in 1982, Congress enacted the
Indian Mineral Development Act (IMDA)to expand tribal control over
mineral resources.[169] The IMDA authorises
the Tribes, subject to secretarial approval, to `enter into any joint venture,
operating, production sharing, service, managerial, lease or other agreement'
for mining activities. The IMDA applies to all mineral resources in which the
Tribe `owns a beneficial or restricted interest,' reaching tribal mineral
estates reserved under allotted or off-reservation lands. Further, mineral
resources belonging to allottees may be included in tribal agreements, subject
to approval by the parties and a finding by the Secretary that it is in the
best interests of the Tribe.
These alternatives to leasing increase control but also the risk to the Tribes.
The fiduciary responsibilities established in cases arising under the 1938
Act apply to mineral agreements under the IMDA, though Congress
expressly stated that the Federal Government shall not be liable for losses
sustained by a Tribe or individual Indian under a mineral agreement. Congress
has no intent of guaranteeing the profitability of these agreements
Two additional statutes affect tribal mineral resources: the Federal Oil
& Gas Royalty Management Act (FOGRMA) and the Indian Energy
Resources Act of 1990. FOGRMA attempted to address the sorry state of
federal royalty management by redefining the duties of the Interior Department
and lessees, strengthening information gathering and dissemination, providing
for inspections, interest on late payments, and civil and criminal penalties,
but in the end little has changed.[170] The
Indian Energy Resources Act continued the IMDA's policies of tribal
economic self-sufficiency and increased control of mineral resources by
establishing demonstration programs, grants, and technical assistance for
development of energy resources and projects in Indian Country.[171] The Indian Energy Resources Act also establishes
a commission to develop recommendations on dual tribal-state taxation of
lessees and on oil and gas royalty management. The problem is that the
commission has only eight members chosen from tribal recommendations; the
remaining ten represent non-tribal interests.
US Indian Tribes have long exercised the inherent right as sovereigns to tax
both members and non-members engaged in activities in Indian Country. During
the 1970s, as Tribes needed increased revenue, they enacted laws to tax mineral
lessees. The rents and royalties were set at low rates, and the ability of
Tribes to renegotiate leases to increase tribal income was limited, thus
taxation schemes offered the only real means for those Tribes to increase their
mineral revenues.
In defiance of the trend to narrowly construe tribal self-government
initiatives, the courts have upheld tribal taxes as a valid exercise of the
Tribes' inherent sovereign power to govern. In Merrion v. Jicarilla Apache
Tribe,[172] the Supreme Court upheld a
tribal severance tax imposed on lessees after the lease terms were finalised.
The Court notes that the lessee confused the Tribe's dual roles as mineral
owner and sovereign government. While a lessor has no right unilaterally to
alter the terms of a lease, a sovereign retains the power to tax non-members to
the extent that the non-members enjoy the privileges of activities in Indian
Country. Since the lessees were doing business on Indian lands and benefited
from the provision of tribal services funded by governmental revenues, they
were subject to taxation.
Subsequently, in Kerr-McGee Corp. v. Navajo Tribe of Indians, the
Supreme Court again upheld the tribal power to tax. The lessees argued that the
crucial factor in Merrion was that the Jicarilla Apache Tribe was
organised under the Indian Reorganisation Act which required all tax
laws to be approved by the Secretary. In contrast, the Navajo Nation was not an
IRA government and its taxes were not approved. The Court rejected the
distinction and reiterated that the Tribe's right to tax flowed from its
inherent sovereignty, not the Secretary's approval of the tax.[173]
For a myriad of reasons, none particularly compelling, states impose taxes on
minerals obtained by non-Indian lessees on Indian lands. Thus, mineral lessees
often face double taxation which lessens the desirability of mineral
development on tribal lands. This double taxation clearly implicates tribal
sovereignty and control over mineral development but the courts have authorised
such taxation thus far.
Many US Tribes have timber resources in the form of forested or partially
forested lands, comprising approximately one percent of all commercial forest
land in the United States.[174] As with
minerals, the Tribes enjoy full equitable ownership of timber located on tribal
reservation lands.[175] It does not matter
that a treaty fails to mention timber. The Tribes still retain the right to use
and harvest timber located on their lands. By the same token, Indian Tribes and
allottees holding trust land may not sell or alienate the timber on the land
without express approval of the Secretary of the Interior.
As a result, the federal government has played a pervasive role in the sale of
timber from Indian lands and Congress has enacted a comprehensive statutory
scheme which permits timber sales on trust lands.[176] The Department of Interior is responsible not only for
selling timber and applying the proceeds for the benefit of the Indians but
also for `managing the Indian forests so as to obtain the greatest revenue for
the Indians consistent with a proper protection and improvement of the
forests.'[177] Detailed regulations address
virtually every aspect of forest management, including the size of sales,
contract procedures, advertisements and methods of billing, deposits, and
bonding requirements, allowable heights of stumps, tree marking and scaling
rules, and percentage of the trees to be left as a seed source. To address
forest mismanagement, Congress expressly directed that the Interior Department
manage Indian forests `on the principle of sustained-yield management'. In
United States v. Mitchell,[178] the
Supreme Court held that the Tribes could bring a breach of trust action against
the government for mismanagement of timber resources. Even so, the Department
has left many reservations with decimated forests and no money to show for
it.
The authority to zone is considered the most essential function performed by
local government. It enables governments to engage in a systematic effort to
manage their land base in a manner consistent with future growth and values. As
often stated, it enables governments to avoid putting `the pig in the parlour,
instead of the barnyard'. For Indians whose existence is often tied to the
checkerboard acreage throughout the reservation, the power to zone is vital to
managing their territory in a manner consistent with their unique historical
and cultural connection to the land.
Nevertheless, a divided Supreme Court has held that Indians retain the power to
zone only in `closed areas, that is, those defined areas in which only a small
percentage of the land is held in fee.[179]
The Court rejected any rationale for tribal zoning power based on inherent
sovereignty, instead resting its decision on the proprietary right to exclude
non-members from tribal land.[180] Along
with the power to exclude comes the power to define the essential character of
the territory. Thus, once a Tribe loses the majority of its land base through
allotment, cession, or other transfer, it likewise loses the power to zone. In
Justice Stevens' view (the apparent majority view), the Tribes have no inherent
authority over non-Indians on reservation lands. In dissent, Justice Blackman
attacks such reasoning precisely because it ignores the sovereignty of Indian
Tribes. Although acknowledging the difficulties raised by reservations that
include entire townships, he argues that Tribes should have zoning authority
over `Indian Country' with some exceptions made for extreme cases.
The current Supreme Court does not share his views. In sum, Indian Tribes may
enact zoning ordinances over non-Indians if the reservation is mostly trust
land. Likewise, the Tribes may not zone non-Indian fee land if the reservation
is at least 50% allotted or otherwise non-Indian owned. The exact line
demarking tribal zoning power, however, remains unclear.
5. CONCLUSION
At the most fundamental level, US Indian Tribes retain inherent sovereignty
arising from their prior occupation of the land,[181] that is, the ability to govern their members and their
territory (reservations).[182] This
sovereignty is, however, limited to those incidents of sovereignty which have
not been extinguished by treaty, federal statute, or by implication as a result
of the Tribe's dependent status.[183]
Generally, subject to the two Montana test exceptions,[184] the power to govern tribal territory does not extend to
non-member activities in Indian country.[185]
At a practical level, inherent tribal sovereignty provides the Tribes with
considerable power to manage reservation environments and resources. This essay
does not allow for consideration of the details of administration which may
differ from Tribe to Tribe. However, in general Tribes are like states in that
they manage their lands and other resources subject to tribal constitutions,
statutes, and administrative regimes which, like those employed by the various
state governments, may differ according to local practice. These powers and
rights may be summarised as follows.
First, the Tribes have powers similar to those of states to adopt and enforce
environmental protection regimes governing, for example, water quality,
hazardous waste disposal.[186] Second, the
Tribes exercise landuse planning/zoning power over Indian fee lands, and may,
in compelling circumstances, extend that authority to non-fee lands within the
reservation boundaries.[187] Third, the
Tribes `own' the resources within reservation boundaries. This resource
ownership is manifest in a variety of ways.
* In respect of land, timber, minerals and similar resources, the Tribes own
the resource, unless specifically excepted by treaty or treaty substitute,[188] but the selling or leasing of the land or
other resources is subject to federal government oversight and approval. Tribes
also retain the inherent right to tax resource extraction, in addition to the
right to receive royalty, rent, or other lease payments from those
activities.[189]
* In respect of water, the tribes own or hold a priority right to use water on
or bordering the reservation (generally limited to agricultural purposes) and
have full authority to allocate water rights to tribal members.[190] In some circumstances, Tribes may have the capacity to
protect water quality.
* With respect to wildlife and fisheries, the Tribes may regulate all
activities of tribal members on the reservation.[191] Tribes may also license non-member hunting or fishing
on tribal lands. Moreover, in many cases, the Tribes reserved rights to hunt
and fish off-reservation. These rights ensure access to traditional hunting and
fishing grounds free from state regulation, except for legitimate,
non-discriminatory conservation regimes.[192] Some courts have acknowledged that such rights may
impose a duty on the states to protect the resources subject to off-reservation
rights.[193] Rights to hunt and fish are,
however, generally subject to federal conservation laws,[194] though many of those laws provide permit exceptions for
Indian subsistence hunting and fishing.[195]
Whether the rights developed in the context of US-Indian relations are
applicable to or can inform the future understanding of `Native Title' law in
Australia is a question that will be addressed fully in a subsequent discussion
paper. Briefly however, in our view, the answer depends on identifying and
understanding the source of those rights. Arguably, that source is the same in
the US and all other common law jurisdictions (including Australia): the common
law's historical acknowledgment of the pre-existing rights of Indigenous
Peoples which arise from their prior occupation of the land in organised
societies.
The three seminal `Aboriginal Title' cases of the US Supreme Court, Johnson
v M'Intosh, Cherokee Nation v Georgia, and Worcester v
Georgia have consistently informed the jurisprudence of other common law
countries, including, Canada, New Zealand, and Australia.[196] In Johnson v M'Intosh, Chief Justice Marshall
notes that in the establishment of relations between US Indian Tribes and the
British Crown,
... the rights of the original inhabitants were, in no instance, entirely
disregarded; but were necessarily, to a considerable extent, impaired. They
were admitted to be the rightful occupants of the soil, with a legal as well as
just claim to retain possession of it, and to use it according to their own
discretion; but their rights to complete sovereignty as independent nations,
were necessarily diminished and their power to dispose of the soil at their
own will, to whomever they pleased, was denied by the original fundamental
principle, that discovery [of new territory] gave exclusive title to those who
made it.
While the different nations of Europe respected the rights of the natives as
occupants, they asserted the ultimate dominion to be in themselves; and claimed
and exercised, as a consequence of their ultimate dominion, a power to grant
the soil, while yet in the possession of the natives. These grants have been
understood by all, to convey a title to the grantees, subject only to the
Indian' right of occupancy. The history of America [citing the practices of
Spain, Portugal, France, Holland, and England], from its discovery to the
present day, proves, we think, the universal recognition of these principles.[197]
Marshall goes on to hold that
[t]he United States, then, have unequivocally acceded to that great and broad rule [of discovery] by which its civilised inhabitants now hold this country. They hold and assert in themselves, the title by which it was acquired. They maintain as all others [nations] have maintained, that discovery gives an exclusive right to extinguish the Indian title of occupancy, either by purchase of by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.[198]
In the two following cases, both involving the State of Georgia and the
Cherokee, the US Supreme Court further refined the doctrine of Native (Indian)
Title, setting out the limits of tribal sovereignty. In the first of these,
Cherokee Nation v Georgia, Chief Justice Marshall confirmed the Tribes'
special constitutional status and laid the foundation for the Indian Trust
Doctrine, requiring the federal government to protect Indian tribal
interests.[199] Marshall writes that
[t]hough the Indians are acknowledged to have an unquestionable and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.[200]
In the final case in the trilogy, Worcester v Georgia, Marshall first
revisits the principle that:
[t]he Indian nations had always been considered as distinct, independent communities, retaining their original natural rights, as the undisputed possessors of the soil ... [with the single exception that the Doctrine of Discovery provided a preeminent title to the discovering nation enabling it to extinguish aboriginal title.][201]
He goes on to reiterate that the US Constitution confirms the Tribes' status as
`powers who are capable of making treaties.'[202] Moreover, Marshall notes that the Tribes' status as
domestic dependent nations does not deprive those peoples of all their
sovereign powers. He writes, `[a] weak state, in order to provide for its
safety, may place itself under the protection of one more powerful, without
stripping itself of the right of government, and ceasing to be a state.'[203] Marshall concludes therefore that the
state law challenged in this case has no effect in Cherokee territory.[204]
Taken together, the Marshall trilogy establishes that native title rights to
land and resources, as well as the rights of Indigenous peoples to govern their
affairs and manage their lands, arise out of their prior occupancy of
European-settled lands and the English common law's historical recognition of
these rights. As Deloria and Lytle note, Cherokee Nation and
Worsester in particular define the two basic thrusts of the relationship
between the US and the Tribes (and arguably, of native title law in general):
first, under the rule of discovery (and Anglo-American common law), the Tribes
no longer enjoy ultimate sovereignty but retain certain aspects of sovereignty
not extinguished by the ultimate sovereign; and second, by assuming a paramount
sovereignty over lesser powers (domestic dependent nations), the new sovereign
accepts the responsibility to protect the Tribes in their rights to occupy
their lands, manage their natural resources, and exercise lesser rights of
self-government.[205]
In summation, the judicial treatment of Indigenous rights in the US illuminates
three fundamental principles of common law native title. First, the source of
Indigenous land rights in newly acquired territory is the pre-existing,
communal occupancy of the land by Indigenous people at the time of assertion of
sovereignty to that territory by the colonising state. Treaties and treaty
substitutes do not provide the source of those rights, instead, they typically
extinguish existing rights except where the Tribes were able to reserve those
rights (for example, to a diminished land base or to hunt and fish in
traditional hunting and fishing grounds).
Second, that prior occupation also gives rise to the powers to control
resources on retained lands, as well as diminished self-government rights for
Indigenous peoples. Like other indigenous rights, those too continue to exist
until specifically (intentionally) extinguished.
Third, the acknowledgment of Indigenous prior occupancy by the new sovereign
and the assumption of ultimate sovereignty gives rise to a fiduciary duty to
protect the remaining rights of the Indigenous occupants of the land, including
their lesser sovereign rights. Again, statutes, treaties, executive agreements,
and other similar legal instruments may inform the specific reach or content of
the fiduciary duty in particular circumstances, but that `information' ought
not to be confused with the `source' of the duty to protect Indigenous peoples'
rights to hold and manage their lands and other economic interests, or their
interests in safeguarding their cultural, social, and political integrity.
As will be evident in future Project discussion papers, these fundamental
principles of native title law which arise from the US experience are mirrored
by judicial treatment of native title rights in Canada and New Zealand. They
find support in Australian jurisprudence and, arguably, they form part of the
common law of Australia with respect to the recognition and treatment on
Indigenous rights in Australia.
[1] BA (cum laude), University of Southern
California (1970); JD, Lewis & Clark College, Northwestern School of Law
(1982); LLM, University of Pennsylvania Law School (1991); Associate Professor
of Law and Director, Indigenous Lands: Rights, Governance and Environmental
Management Project, Murdoch University School of Law, Perth, Western
Australia.
[2] BA, University of California at Berkeley
(1986); JD, New York University School of Law (1991); LLM, Lewis & Clark
College, Northwestern School of Law (1998).
[3] Discussion Paper 1 Introduction: Overview
of the Project UNSW 1998.
[4] While Alaskan Native lands may or may not
still be part of Indian Country (see nt 38 below), they are administered under
a different legal regime from Indian lands in the `lower 48 states'. The
Alaskan statutory regime is more like a regional agreements' regime, and will
be considered in a future discussion paper on regional agreements in Alaska and
Canada. For an overview of the Alaskan Natives' position in US law see: DS Case
`The Alaska Experience: In A Twinkling - The Alaska Native Claims Settlement
Act and Agreements Relating to the Use and Development of Land' in GD
Meyers (ed) The Way Forward: Collaboration and Cooperation `In Country'
Proceedings of the Indigenous Land Use Agreements Conference Darwin, Australia
26-29 September 1995, 2nd edn AGPS/NNTT 1996, 102-26.
[5] See, generally, RA Williams Jr The
American Indian in Western Legal Thought: The Discourses of Conquest Oxford
University Press 1990; FS Cohen Handbook of Federal Indian Law WS Hein
1982; V Deloria Jr & CM Lytle American Indians, American Justice
University of Texas Press 1983; DH Getches et al Cases and
Materials on Federal Indian Law 3rd edn West Publishing 1993;
CF Wilkinson American Indians, Time and the Law Yale University
Press 1987.
[6] See Cohen Handbook of Federal Indian
Law above nt 5 at 47-204; WC Canby Jr American Indian Law in a
Nutshell 2nd edn West Publishing 1988; Deloria & Lytle
American Indians, American Justice above nt 5 at, 2-24; Getches et al
Federal Indian Law above nt 5.
[7] The term Indian country refers specifically
to those geographical areas (primarily west of the Mississippi River) where
Indian Tribes exercise sovereignty. However, as Deloria and Lytle note, the
term has both a highly technical-legal meaning as well as a more general
meaning for Indian Tribes. Moreover, it is a `back drop' concept, understood
best in the context of its use by various interests (Tribes and federal and
state governments), and in its contemporary form is undergoing radical changes
in meaning. It no longer has solely a geographical meaning, but also
contemplates social, economic, and political constructs: American Indians,
American Justice above nt 5 at 58-79.
[8] See, generally, AM Gibson The American
Indian: Prehistory to the Present HM College Division 1980; P Farb Man's
Rise To Civilisation: The Cultural Ascent Of The Indians Of North America
Revised 2nd edn E P Dutton 1988; EH Spicer A Short History Of The
Indians Of The United States D Van Norstrand Co 1969.
[9] See Canby American Indian Law in a
Nutshell above nt 6 at 10. For a review of colonial policy in North America
prior to US independence from England see RN Clinton `The Proclamation of
1763: Colonial Prelude To Two centuries Of Federal-State Conflict Over The
Management Of Indian Affairs' (1989) 69 Boston U L Rev 329.
[10] The US policy of negotiating treaties was
`born of necessity and convenience': Getches et al Federal Indian Law
above nt 5 at 2.
[11] Congress repealed the President's power
to negotiate treaties with Indian Tribes in 1871. See Cohen Handbook of
Federal Indian Law above nt 5 at 62. Treaty substitutes (executive orders,
congressional statutes and agreements) created rights and liabilities virtually
identical to those established by treaties: id at 127. See also,
eg, Antoine v Washington 420 US 194, 204 (1975) (hunting rights
preserved in ratified agreement); Arizona v California 373 US 546, 598
(1963) (water rights reserved by executive order).
[12] Canby American Indian Law in a
Nutshell above nt 6 at 11-12.
[13] CF Wilkinson & JM Volkman `Judicial
Review of Indian Treaty Abrogation: "As Long As Water Flows, or Grass Grows
Upon the Earth"-- How Long a Time is That?' (1975)
63 Cal L Rev 601, 608-9.
[14] Cohen Handbook of Federal Indian
Law above nt 5 at 65-68.
[15] Id at 69.
[16] Wilkinson and Volkman Judicial Review
of Indian Treaty Abrogation above nt 13 at 609.
[17] Id at 610.
[18] Choctaw Nation v Oklahoma 397 US
620, 630-31 (1970).
[19] See Cohen Handbook of Federal
Indian Law above nt 5 at 78-98.
[20] Id at 78-92. The five Civilised Tribes
included the Cherokee, Choctaw, Creek, Chickasaw, and Seminole Nations in the
US South-East. They were called `civilised' because of their historically
extensive interaction with white settler communities (many tribal members
intermarried with Scottish and Irish traders). Additionally, many tribal
members were educated, some in white schools, and all but the Seminoles adopted
formal constitutions and governments modelled on Euro-American models: Deloria
and Lytle American Indians, American Justice above nt 6 at 90-91.
Unfortunately, all their efforts to be like the whites, failed to convince the
settlers that the Tribes were equals with whites and failed to prevent their
forced removal from their traditional lands in Florida, Georgia, Tennessee and
other parts of the South to `new homelands' in Kansas and Oklahoma: id at
64-65.
[21] Id at 130-43.
[22] Canby American Indian Law in a
Nutshell above nt 6 at 20.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Id at 138.
[27] See Wilkinson American Indians, Time,
and the Law above nt 5 at 4-5. As Wilkinson notes, the promise of `measured
separatism' made in treaties and treaty substitutes was that the Tribes would
enjoy a diminished independence on their reservations, `free to rule their
internal affairs outside state compulsion but subject to an overriding federal
power and duty of protection.'
[28] Cohen Handbook of Federal Indian
Law above nt 5 at 144.
[29] Id at 147.
[30] CF Wilkinson `To Feel the Summer in the
Spring: The Treaty Fishing Rights of the Wisconsin Chippewa' (1991) Wis L
Rev 375, 392.
[31] See CF Wilkinson and ER Biggs `The
Evolution of the Termination Policy' (1977) 5 Am Indian L Rev 139,
149-54, 158-62.
[32] Id at 151.
[33] Message from the President of the United
States Transmitting Recommendations for Indian Policy (1970) HR Doc No 363
91st Cong 2nd Sess.
[34] See, eg, American Indian Agricultural
Resource Management Act 25 USCA §§ 3701-3746 (West Supp
1984-1997); American Indian Religious Freedom Act 42 USCA
§ 1996 (West 1994 and Supp 1998); Indian Gaming Regulatory Act
25 USCA §§ 2701-2721 (West Supp 1984-1997); Indian Land
Consolidation Act 25 USCA §§ 2201-2211 (West Supp 1984-1997);
Indian Mineral Development Act 25 USCA §§ 2101-2108 (West
1983); National Indian Forest Resources Management Act 25 USCA
§§ 3101-3120 (West Supp 1984-1997); Native American Graves
Protection and Repatriation Act 25 USCA §§ 3001-3013 (West Supp
1984-1997).
[35] See, eg, Clean Air Act 42
USC § 7601 (West 1995); Clean Water Act 33 USC § 1377 (West
Supp 1998); Comprehensive Environmental Response, Compensation, and
Liability Act 42 USC § 9626 (West 1995); Safe Drinking Water
Act 42 USC § 300j-11 (West 1991); Oil Pollution Act of 1990 33
USC § 2706 (West Supp 1998)(natural resource damages); Surface Mining
Control and Reclamation Act of 1977 30 USC § 1300 (West 1986 and Supp
1998).
[36] Presidential Memorandum
`Government-to-Government Relations with Native American Tribal Governments' 29
April 1994, 59 FR 22,951 (May 4, 1994); US Dept Of Interior, `Order No. 3175:
Departmental Responsibilities for Indian Trust Resources' (Nov 8, 1993)
(on file with author); US Dept of Interior `Order No. 3206: American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act' (June 5, 1997) (on file with author); US Dept of Justice `Policy
on Indian Sovereignty and Government-to-Government Relations with Indian
Tribes' (June 1, 1995)(on file with author); US Environmental Protection
Agency, `Policy for the Administration of Environmental Programs on Indian
Reservations' (November 8, 1984); Federal Emergency Mgmt Agency `Draft American
Indian and Alaska Native Policy,' 63 FR 7793-01 (Feb. 17, 1998); Dept of Health
and Human Services, `Policy on Government-to-Government Relations With Native
American Tribal Governments' 61 FR 42255-01 (Aug. 14, 1996).
[37] Wilkinson To Feel the Summer in
the Spring above nt 30 at 375.
[38] State of Alaska v Native Village of
Venetie Tribal Government 101 F 3d 1286 (9th Cir 1996) cert
granted 117 S Ct 2478 (1997).
[39] See: Wilkinson American Indians, Time
and the Law above nt 5 at 54-55; MC Wood `Indian Land and the Promise of
Native Sovereignty: The Trust Doctrine Revisited' (1994) Utah L Rev
1471, 1474 who notes that sovereignty is composed of four attributes: secure
land base, functioning economy, self-government, and cultural vitality.
[40] United States v Wheeler 435 US
313, 322-23 (1978).
[41] Tribal sovereignty was first recognised
by Chief Justice Marshall in a trilogy of cases: Johnson v M'Intosh 21
US (8 Wheat) 543, 572-88 (1832); Cherokee Nation v Georgia 30 US (5 Pet)
1 (1831); Worcester v Georgia 31 US (6 Pet) 515 (1832). In these cases,
on which thousands of pages have been written, Marshall explained that long
before contact with Europeans, American Indian Tribes were sovereign nations
with broad inherent powers that, almost without exception, exist by virtue of
inherent right, not by delegation: Worcester 31 US (5 Pet) at 559-60.
This sovereignty was necessarily diminished on incorporation into the United
States and by tribal acceptance of protection: Johnson 21 US (8 Wheat)
at 591; Cherokee Nation 30 US (5 Pet) at 17 (function of Tribe's
status as `domestic dependent nation'). Tribal rights held to be diminished
included the ability to transfer land to anyone other than the discoverer,
first European nations and then the United States ( Johnson 21 US (8
Wheat) at 574), the right to enter into direct commercial or governmental
relations with foreign nations (Worcester 30 US (6 Pet) at 559) and the
power to determine their external relations (Wheeler 435 US at 326).
Subsequently, by treaty and by statute through the exercise of congressional
plenary control, the Tribes lost other sovereign powers. See, eg,
Wheeler 435 US at 323. Through it all, however, the right to govern
one's own internal affairs free from state laws has remained an essential
element of tribal sovereignty. See Worcester 31 US (6 Pet) at 561
(excluding state law from Indian country).
[42] Wheeler 435 US at 323.
[43] Ibid.
[44] Montana v United States 450 US 544
(1981).
[45] Id at 565.
[46] Ibid.
[47] Brendale v Confederated Tribes and
Bands of the Yakima Indian Nation 492 US 408 (1989). Tribes may zone in
`closed' areas, but not heavily allotted `open' areas.
[48] Montana 450 US at 566.
[49] South Dakota v Bourland 508 US
679, 697 (1993).
[50] United States v Anderson 736 F 2d
1358, 1366 (9th Cir 1984).
[51] Wheeler 435 US at 323.
[52] For example, in Brendale 492 US at
429, Justice White took exception to the notion that tribal retained
sovereignty could be equated with a local government's police power. Moreover,
Justice Stevens argued that the source of regulatory authority derives from the
tribal power to exclude non-members from reservation land and the lesser
included power to define the character of that land: at 433-37 See also
Merrion v Jicarilla Apache Tribe 455 US 130, 160 (1982) (Stevens
dissenting). This perspective resulted in Tribes having authority to regulate
land use only in `closed' areas, those lands which were restricted to tribal
members and retained their Indian character mostly trust lands:
Brendale 492 US at 444-47.
[53] For an overview of tribal powers to
govern, manage, and control access to reservation lands and resources see GC
Coggins & J Donley `Natural Resources Development on Native American
Indian Reservations in the United States' in The Way Forward above
nt 4 at 90-101.
[54] See above nt 34 (list of environmental
statutes with `Tribes as States' provisions).
[55] US Environmental Protection Agency EPA
Policy for the Administration of Environmental Programs on Indian
Reservations (1984); Memorandum from EPA Deputy Administrator to Assistant
and Regional Administrators and General Counsel re Indian Policy Implementation
Guidance (Nov 8, 1984) (on file with author).
[56] See State of Montana v United States
Environmental Protection Agency -- F 3d -- 1998 WL 86148 (9th
Cir March 3, 1998).
[57] Id. The Court rejected Montana's
challenge to the granting of TAS status to the Confederated Salish and Kootenai
Tribes which allowed the Tribes to promulgate water quality standards that
would apply to all sources of pollutant emissions within the reservation
boundaries: id at *1. The state argued that the EPA regulations authorising
tribal exercise of authority over non-members was improper because it exceeded
the recognised scope of a tribe's inherent powers. In response, the Court
affirmed the two exceptions set forth in United States v Montana (see
above nts 41-43 and accompanying text) and noted that the EPA regulations
created standards that properly delineated the scope of inherent authority and
applied the `direct effects' exception. The Tribes had to make case specific
showings that conduct involving tribal water rights could reasonably pose
serious and substantial threats to tribal health and welfare, making tribal
regulation essential.
[58] City of Albuquerque v Browner 97 F
3d 415 (10th Cir 1996).
[59] See State of Washington, Department of
Ecology v US Environmental Protection Agency 752 F 2d 1465 (9th
Cir 1985)(court affirms EPA's decision to refuse to allow state of Washington
to apply its hazardous waste regulations to the activities of all persons,
Indians and non-Indians, in Indian Country even though RCRA has no TAS
provision authorising Tribes to develop and implement their own hazardous waste
management programs).
[60] The White Mountain Apache Tribe developed
its own landfill, closed a 30-year-old dump, started a residential collection
program and expanded community education efforts. But see Backcountry
Against Dumps v Environmental Protection Agency 100 F 3d 147 (DC Cir 1996)
[EPA could not approve solid waste management plan of Campo Band of Mission
Indians because Congress has not enacted a TAS provision under RCRA; the Tribe
could, however, apply for a site-specific regulation which would allow it to
design and monitor landfill facility on reservation.]
[61] The Confederated Tribes of Silez Indians
of Oregon.
[62] The Confederated Tribes of the Warm
Springs Reservation of Oregon received an Oregon grant to build a recycling
program on the reservation. The Tribes now sell newspaper to a business which
manufactures fire-resistant doors, collect white paper with the help of school
children, and recover cardboard, glass and telephone books. A community-wide
recycling education plan is under development, and a new landfill and
associated recycling building are planned. Sitka Tribal Enterprises designed a
composting program to produce marketable products from organic wastes of
Alaskan industries.
[63] The Nez Perce Tribe of Idaho used a grant
to develop environmental programs such as the pickup of office recyclables,
education of school children about recycling, waste audits of local businesses
and public meetings; it is also developing a memorandum of understanding with
local and state officials to diminish dumping of waste from outside the
reservation. St Regis Mohawk Tribe's Solid Waste Education Project featured
free workshops on composting, used oil collection days and demonstrations
showing the negative impacts of backyard burning with the intent to develop a
comprehensive integrated solid waste management program.
[64] See, generally, Native Americans and the
Environment <http://conbio.rice.edu/nae/all.html> (last modified on June
2, 1998) an excellent online resource listing and summarising the mission and
efforts of tribal organisations involved in natural resources and providing
information about tribal activities); EPA, Municipal Solid Waste Management in
Indian Country <http.//www.epa.gov/ tribalmsw> (last updated January 13,
1998) which lists tribal programs supported by the EPA to address solid waste
problems on reservation. Some organisations involved in addressing
environmental problems on reservation include: Inter-Tribal Environmental
Council of Oklahoma, consisting of 31 member Tribes, which provides technical
support, environmental services and assistance in developing tribal
environmental programs; Tribal Association on Solid Waste and Emergency
Response, formed in July 1997 to involve Tribes more actively in EPA's policy
and regulatory decision-making process; National Tribal Environmental Council,
which consists of over 80 Tribes and Alaska Native Villages and provides Tribes
with volunteer mentors who assist with, eg, setting up solid waste plans,
environmental technical support, workshops on environmental issues,
intergovernmental cooperation, a resource clearinghouse, newsletters, updates
and federal regulatory and legislative summaries; Inter Tribal Council of
Arizona, which consists of 19 Tribes and has an Environmental and Natural
Resources Program to help Tribes with funding and technical assistance for
preparation of integrated solid waste management plans and other environmental
protection issues.
[65] US v Mitchell 463 US 206, 225
(1983). See, generally, R P Chambers `Judicial Enforcement of the
Federal Trust Responsibility to Indians' (1975) 27 Stan L Rev 1213,
1215-122 ) (discussing the origins and scope of the federal trust
responsibility).
[66] 30 US (5 Pet) 1, 17 (1831).
[67] 31 US (6 Pet) 515, 594-97 (1832).
[68] See Wood Trust Doctrine Revisited
above nt 39 at 1502 (sovereign trustee model and Kagama `guardian ward'
model are at opposite ends of the spectrum of federal-Indian relations).
[69] Id at 1504; Chambers Judicial
Enforcement of the Federal Trust above nt 65 at 1219-20. See United
States v Kagama 118 US 375, 383-84 (1886) (`From [Tribes'] very weakness
and helplessness, so largely due to the course of dealing of the Federal
Government with them and the treaties in which it has been promised, there
arises the duty of protection, and with it the power.... The power of the
General Government ... is necessary to their protection, as well as to the
safety of those among whom they dwell'); Lone Wolf v Hitchcock 187 US
553 (1903) (Congress has plenary authority over Indian lands, which includes,
eg, power to abrogate unilaterally treaties). These cases have been discredited
but never overruled. As a result, some tribal advocates are reluctant to use
the trust doctrine. And see also, Wood, above nt 36 at 1508 (stressing
importance of trust doctrine in protecting tribal land base and resources from
degradation and need to separate doctrine from plenary power).
[70] Wood Trust Doctrine Revisited
above nt 39 at 1504.
[71] Id at 1508.
[72] Lone Wolf 187 US at 568 (upholding
the validity of a federal statute providing for transfer of Indian land in
violation of treaty).
[73] 448 US 371 (1980) (government must
compensate Sioux for unlawful taking of Black Hills in 1877).
[74] Id at 414-16.
[75] Id at 423-24. See Wood Trust Doctrine
Revisited above nt 39 at 1510.
[76] See Cohen Handbook of Federal Indian
Law above nt 5 at 221-225.
[77] Eg, Choctaw Nation v Oklahoma 397
US 620, 631 (1970); United States v Shoshone Tribe 304 US 111, 116
(1938); United States v Winans 198 US 371 (1905).
[78] Eg, McClanahan v Arizona State Tax
Comm'n 411 US 164, 174 (1973); Winters v United States 207 US 564,
576-77 (1908).
[79] Eg Choctaw Nation v United States
318 US 423, 431-32 (1943).
[80] See generally Wilkinson and Volkman
Judicial Review of Indian Treaty Abrogation above nt 13. This same
reluctance applies to statutes, agreements, and executive orders dealing with
Indian affairs: Cohen Handbook of Federal Indian Law above nt 6 at
223-24.
[81] Se, eg, Menominee Tribe v United
States 391 US 404 (1968) (termination statute did not nullify on
reservation treaty fishing and hunting rights). But see Rosebud Sioux Tribe
v Kneip 430 US 584 (1977) (court found intent to disestablish Indian
Country).
[82] Chambers Judicial Enforcement of the
Federal Trust above nt 65 at 1227.
[83] Courts apply stricter duties on the
executive agencies in part because of their daily involvement with reservation
life. See Wood Trust Doctrine Revisited above nt 39 at 1478. The Bureau
of Indian Affairs exercises daily supervision and varying degrees of control
over tribal land and resources. It approves or disapproves tribal council
decisions on certain uses of reservation lands. This involvement and authority
flows from the nature of Indian title which requires the federal government to
hold nearly all tribal and allotted lands in trust with the beneficial interest
held by the Tribe or individual Indian allottees. In addition, the executive
branch does not have the same unfettered plenary power of Congress.
[84] Seminole Nation 316 US 286, 297
(1942) (government breached its fiduciary duties to Indians by disbursing
annuities to tribal council known to be corrupt).
[85] See Cohen Handbook of Federal Indian
Law above nt 5 at 226. See also Pyramid Lake Paiute Tribe of Indians v
Morton 354 F Supp 252, 256-57 (DDC 1972) modified in part on other grounds
360 F Supp 669 (1973) rev'd in part on other grounds 499 F 2d 1095 (DC Cir
1974) cert denied 420 US 962 (1975) (Secretary of Interior breached trust
responsibilities to Tribe when he made a `judgment call' approving regulations
which authorised diversion of water for federal reclamation project and harmed
downstream lake on reservation).
[86] Klamath Tribes v United States *14
(Civil No. 96-381-HA 10/2/96) (unpublished).
[87] Ibid.
[88] Ibid.
[89] See Wood Trust Doctrine Revisited
above nt 39 at 1513-22.
[90] See, eg, United States v Mitchell
II 463 US 206 (1983)(tribal breach of trust action exists against federal
government for mismanagement of timber resources because virtually every stage
of timber harvesting and management is under federal control and
supervision).
[91] Mitchell II, 463 US at 224. See
also Jicarilla Apache Tribe v Supron Energy Corp 782 F 2d 855, 857
(10th Cir 1986), adopting as modified the dissent in
Jicarilla Apache Tribe v Supron Energy Corp 728 F 2d 1555, 1563-69
(10th Cir 1984)(Seymour J dissenting)(federal government's role and
responsibilities in mineral leasing on reservation are pervasive and
comprehensive and create enforceable federal trust obligations to Tribes);
Brown v United States 86 F 3d 1554 (Fed Cir 1996)(commercial leasing
statute imposes fiduciary duties on government under `control' part of
Mitchell II test).
[92] Indian water rights cannot be understood
without a minimal understanding of the prior appropriation system, adopted in
one form or another in all of the western states. Under this system, one
acquires water rights by applying a given amount of unappropriated water at the
date of appropriation to beneficial use. Such rights may be abandoned or
forfeited by non-use. In times of shortage, junior appropriators, those with
later priority dates, must forego their water in favour of the senior water
right holders. See, generally, AD Tarlock Law of Water Rights and
Resources 1995 ch 5 . Traditionally, the beneficial use requirement allowed
only extractive, consumptive uses of water such as that necessary for domestic,
municipal, irrigation, stock watering, mining, and hydropower purposes: id
§ 5.16[1] at 5-86. Some states now include instream flow protection, fish
and wildlife maintenance, or aesthetic purposes as beneficial uses, thus
negating the physical diversion requirement. Finally, water uses may not
be unnecessarily wasteful, a doctrine that has never been vigorously enforced:
Id., § 5.16[3] at 5-89.
[93] Winters v United States 207 US
564, 577 (1908). See also United States v New Mexico 438 US 696 (1978)
(federal reserved water rights limited to primary purposes of the reservation;
secondary uses are subject to state law). Some commentators have argued that
the primary-secondary distinctions apply to federal reserved rights for
national forests, parks, and wildlife refuges but not to Indian water rights.
This view has yet to be adopted by courts.
[94] See, eg, Winters 207 US at 577.
[95] See United States v Adair 723 F 2d
1394, 1414 (9th Cir 1983) cert denied sub nom Oregon v United
States 467 US 1252 (1984) (non-consumptive aboriginal hunting and fishing
water rights that are reserved in treaty carry priority date of time
immemorial).
[96] See generally Cohen Handbook of
Federal Indian Law above nt 5 at 578; JV Royster `A Primer on Indian Water
Rights: More Questions than Answers' (1994) 30 Tulsa L J 61, 70-71.
[97] In United States v Cappaert 426 US
128 (1976) the Supreme Court held that the federal government had reserved
sufficient water to ensure the survival of a threatened pupfish and thus upheld
the government's right to enjoin groundwater pumping by a neighbouring cattle
ranch that was lowering the water table and threatening the existence of a rare
pupfish in Death Valley National Monument Cappaert has been limited to its
national monument facts and not been extended to Indian reserved water rights.
See In re General Adjudication of All Rights to Use Water in the Big
Horn River System (Big Horn I) 753 P.2d 76, 99-100 (Wyo 1988) aff'd
by an equally divided court; Wyoming v United States 488 US 1040
(1989)(rejecting reserved groundwater right for Indian reservation). Cf In
Re General Adjudication of All Rights to County Water in the Gila River System
and Source 15 Indian L Rep 5099 (Ariz Sup Ct, Maricopa County 1988)(federal
reserved water rights extend to groundwater on and off the reservation).
[98] In United States v Gila Valley
Irrigation District 920 F Supp 1444 (D Ariz 1996) the district court held
that the Tribe's water rights were being impaired by upstream farming practices
which were raising the salinity level to such an extent that traditional
salt-sensitive crops could no longer be grown.
[99] The Pacific Northwest and Great Lakes
Tribes often had specific treaty language that protected their rights to fish
and hunt in their aboriginal and reservation lands. See United States v
Winans 198 US 371 (1905) (language in Stevens' treaties allow Indians to
take fish `at all usual and accustomed places, in common with citizens of the
Territory'); United States v Adair 723 F 2d 1394, 1414 (9th
Cir 1983) cert denied sub nom; Oregon v United States 467 US 1252
(1984). These water rights in essence grant the Tribes a profit à
prendre, or an easement on private land to access local fishing holes and
have been used to limit issuance of state water permits. See, generally, MC
Blumm `Native Fishing Rights and Environmental Protection in North America and
New Zealand: A Comparative Analysis of Profits à Prendre and Habitat
Servitudes' (1989) 8 Wisc Int'l L J 1, 8-11 (1989).
[100] See material on quantification below.
[101] See Big Horn I 753 P.2d at
97-98 (court rejected tribal efforts to use water for instream purposes because
despite `permanent homeland' language, treaty's primary purpose was
agricultural). But see Colville Confederated Tribes v Walton 647 F 2d 42
(9th Cir) cert denied 454 US 1092 (1981)(court held that Tribe had
reserved water rights for two primary purposes: (i) water for irrigation based
on the practicably irrigable acreage standard to fulfil agrarian homeland
purpose; and (ii) water for development and maintenance of replacement fishing
grounds to fulfil preservation of tribal access to fishing grounds purpose).
Moreover, most states do not allow individuals, including Tribes, to hold
instream rights.
[102] See In re General Adjudication of
All Rights to Use Water in the Big Horn River System (Big Horn III)
835 P.2d 273, 279 (Wyo 1992)(Tribe must go through state process to change
future use from agricultural purposes to any other beneficial use. Cf United
States v Anderson 591 F Supp at 5 (since Tribe had vested property
right in reserved water for fisheries and agricultural purposes, it could
transfer water between the two without resorting to state law).
[103] Winters 207 US at 577 (`[I]t
would be extreme to believe that within a year Congress destroyed the
reservation and took from the Indians the consideration of their grant, leaving
them a barren waste, [taking] from them the means of continuing their old
habits, yet [not leaving] them the power to change to new ones').
[104] Royster Water Rights above nt
96 at 74. The United States encouraged settlement of the West and construction
of large irrigation projects and dams on water that flowed through or bordered
Indian reservations with little or no regard for Indian water rights.
American Indians, Time and the Law above nt 5 at 267-270. While
non-Indians got electricity, flood control, and irrigation water, Indians got
nothing. In some cases, valuable farmland was flooded, forcing tribes to move;
in others, tribes just watched water pass by as their fisheries dried up.
States likewise ignored, subverted, and circumvented Indian water rights by
adopting a business-as-usual approach to granting water rights and allowing
diversions that directly conflicted with Indian rights: ibid.
[105] Arizona v California 373 US
546, 600 (1963).
[106] Ibid.
[107] Id at 601.
[108] Very few courts have addressed this
issue. See above nt 98 Colville case; United States v Adair 723 F
2d at 1414 (non-consumptive fishing and hunting water rights prevent other
appropriators from depleting streams below protected level); United States v
Anderson 591 F Supp 1, 5 (ED Wash 1982) rev'd in part for other reasons,
736 F 2d 1358 (9th Cir 1984) (court required maintenance of 68
degrees F or less to protect native fish population).
[109] See above nts 36-49 and accompanying
text.
[110] See SJ Shupe `Water In Indian Country:
From Paper Rights to a Managed Resource' (1986) 57 U Colo. L Rev
561, 579-81. In 1975, the Secretary of Interior mandated automatic disapproval
of any tribal law that `purports to regulate the use of water on Indian
reservations.' This policy affects Tribes organised under the Indian
Reorganisation Act of 1934 because IRA constitutions generally
require that tribal laws and constitutional amendments be approved by the
Secretary of Interior. Tribes that have amended their IRA constitution
and deleted that requirement and other Tribes are free to have water
regulations. See Kerr-McGee Corp v Navajo Tribe of Indians 471 US 195
(1985).
[111] See TW Clayton `The Policy Choices
Tribes Face When Deciding Whether to Enact a Water Code' (1992) 17 Am Indian
L Rev 523, 558-87 (which discusses tribal water codes and related issues
regarding the Navajo, Rosebud Sioux, and Umatilla Tribes and Colville
Reservation).
[112] See above nts 44-46 and
accompanying text.
[113] In United States v Anderson 736
F 2d 1358 (9th Cir 1984), the Court held that state regulatory
authority over non-Indian water rights on fee land on the reservation would not
adversely impact tribal interests. The crucial factors were the extent of
non-Indian settlement in the area, the proposed state comprehensive water
management program, and the geography of the stream which flowed along the
boundary of the reservation. See also Big Horn III 835 P.2d at 283
(held, Wyoming state engineer could enforce and administer state water rights
on reservation). But see Colville Confederated Tribes v Walton 647 F 2d
at 51 (the Tribe has jurisdiction to regulate water use by non-Indian users on
reservation, mainly because of unique factors: stream system was small,
non-navigable, and entirely within the reservation's boundaries, and diversions
would seriously impact on tribal agricultural and fisheries). Cf Matter of
Beneficial Water Use Permit Numbers 66459-76L, Ciotti, 278 Mont 50, 923 P
2d 1073 (1996) (state may not issue permits for non-Indian water use on
reservation until tribal rights are quantified because otherwise state does not
know if any unappropriated water remains).
[114] 43 USC 666 (West 1986).
[115] Arizona v San Carlos Apache
Tribe 463 US 545 (1983)(McCarren Amendment removed any limitations
that state Enabling Acts or federal policy may have placed on state-court
jurisdiction over Indian water rights, including suits by Tribes).
[116] Colorado River Water Conservation
District v United States 424 US 800 (1976).
[117] United States v Oregon 44 F 3d
758 (9th Cir 1994).
[118] See San Carlos Apache 463 US at
578-79 (dissent).
[119] See Getches et al Federal Indian
Law above nt 5 at 831-839.
[120] Water marketing, which is extremely
controversial, involves selling water as a commodity to non-Indian users on or
off reservation or leasing or selling the water right outright. Tribes may
agree not to exercise the water right, thereby making it worthwhile for junior
users to negotiate a deal. See, generally DH Getches `Management and Marketing
of Indian Water: From Conflict to Pragmatism' (1988) 59 U Colo L
Rev 515, 541-48; SJ Shupe `Indian Tribes in the Water Marketing Arena'
(1989-90) 15 Am Indian L Rev 185. Some critics argue that water sales
are inconsistent with the nature of reserved rights, which depends on one's
interpretation of the reservation's purpose -- homeland v agricultural. See
Big Horn I 753 P 2d at 100 (no right to sale of reserved water to
non-Indians off the reservation). Others argue that water should be kept within
the water basin; otherwise, cities and water districts will destroy rural areas
by buying all the water. On the other hand, non-Indians may sell or lease their
water rights, so Indians should be able to also, to would provide needed
revenue for Tribes. See PW Sly `Urban and Interstate Perspectives on
Off-Reservation Tribal Water Leases' (1996) 10 WTR Nat Resources &
Env't 43.
[121] Between 1993 and 1996, no settlements
occurred. In the Fall of 1997, the Warm Springs Tribe finalised a water
settlement which provided certainty to the states and little to the tribes. The
Tribe waived its priority date, but obtained recognition of its treaty date
(which arguably was in contention). Confederated Tribes of the Warm Springs
Reservation Water Rights Settlement Agreement (1997).
[122] Getches et al Federal Indian
Law above nt 6 at 848-908.
[123] United States v Winans 198 US
371 (1905).
[124] See, generally, FG Cohen Treaties
on Trial: The Continuing Controversy over Northwest Indian Fishing Rights
University of Washington Press 1986.
[125] See Mattz v Arnett 412
US 481 (1973) (no state regulation over Indian fishing in areas of Klamath
River Reservation that had been opened for unrestricted homestead entry);
Lower Brule Sioux Tribe v South Dakota 711 F 2d 809 (8th Cir
1983) cert denied 464 US 1042 (1984)(tribe retains exclusive jurisdiction to
regulate members' hunting and fishing on reservation lands acquired by United
States for dam and reservoir projects); Leech Lake Band of Chippewa Indians
v Herbst 334 F Supp 1001 (D Minn 1971) (Nelson Act, which provided
for a complete extinguishment of Indian title to lands of Leech Lake
Reservation, did not abrogate treaty fishing and hunting rights).
[126] See above nts 39-46 and accompanying
text.
[127] Brendale 492 US at 433-49 (per
Stevens J).
[128] 462 US 324 (1983).
[129] State and tribal fishing and hunting
regulations differed in irreconcilable ways. For example, the Tribe allowed
hunting of does and bucks; the state permit only bucks to be killed. The Tribe
did not require state licences for anyone hunting or fishing on reservation. As
a result, non-Indian hunters faced arrest for illegal possession of game
because, even though the deer was killed on reservation, they failed to have a
state hunting licence. The Tribe's management efforts would be for naught if
non-Indians had to purchase both state and tribal licences and abide by state
laws.
[130] But see Montana v United States
450 US 544 (1981). Applying a set of particularly bad facts, the Supreme Court
held that the Tribe could not regulate fishing and hunting on fee lands held by
non-Indians. Since the early 1920s, the state had stocked reservation waters
with fish and provided some game as well. Despite a tribal resolution, the
Tribe had allowed the state `near exclusive regulation' of hunting and fishing
on fee lands on the reservation.
[131] 113 S Ct 2309 (1993).
[132] The Bourland decision reflects
the current beliefs of the Supreme Court more than any consistent logic. It was
entirely plausible that federal law could have used tribal law since the area
still maintained its tribal character. The current Supreme Court has issued few
opinions that could be construed as recognising or expanding tribal
sovereignty.
[133] See Getches et al Federal Indian
Law above nt 6 at 858-60. See also Me Rev Stat An, Title 30, 6207
(West 1993); Minn Stat 97.433 (1984).
[134] For example, Pacific Northwest
treaties generally reserved to the Tribes `the right of taking fish at all
usual and accustomed places, in common with citizens of the Territory.' See
Washington v Washington State Commercial Passenger Fishing Vessel
Association 443 US 658, 666 n 2 (1979) (lists treaties). Meanwhile,
these same treaties limited `the privilege of hunting, gathering roots and
berries, and pasturing their horses on all open and unclaimed lands.' See
J Royster Native American Natural Resources (Spring 1997 course
materials still in draft form) at 470-71. The treaties of the Great Lakes
Tribes generally do not have language limiting the territorial extent of the
reserved rights and thus extend to ceded lands as well: ibid. See Lac Courte
Oreilles Band of Lake Superior Chippewa Indians v Voight (LCO I) 700
F 2d 341, 350 n 14 (7th Cir) cert denied 464 US 805 (1983). For a
comprehensive review of off-reservation resource uses and management rights and
regimes see, generally: MC Wood `Tribal Management of Off-Reservation Living
Resources: Regaining the Sovereign Prerogative' in The Way Forward
above nt 4 at 34-66.
[134] United States v Hicks 587 F
Supp 1162, 1165 (WD Wash 1984) (Olympic National Park is no longer `open and
unclaimed' lands since use as an elk preserve and national park is inconsistent
with hunting). See also Crow Tribe of Indians v Repsis 73 F 3d 982
(10th Cir 1995), cert. denied 116 S Ct 1851 (1996) (an aberrational
opinion that held that off-reservation hunting rights were not permanent rights
and were repealed on statehood).
[135] See above nts 71-78 and accompanying
text. The Supreme Court developed canons of Indian treaty construction because
the Indians and government were not bargaining from positions of equal
strength, the treaties were drawn up by representatives of the United States in
a written language u