American Indian Natural Resources Law

American Indian Natural Resources Law

Fall Semester 2015

10:30 a.m. – 12:00noon, Mondays and Wednesdays, Room 215

1. Course Overview and Objectives.

Welcome to American Indian Natural Resources Law! This course covers the intersection of two of the most interesting and critical areas of the law, particularly for those of us west of the 100th meridian. Regardless of your ultimate area of practice, as attorneys working in the western United States, you are more than likely to encounter fascinating issues (if not decades-long conflicts) over the rights to use scarce natural resources such as water, the sharing of common resources such as the public lands, and the role of the region’s first populations in deciding those issues. In fact, you are entering the legal profession during a time of incredible opportunity to help define (or re-define) the standards and policies by which the next generations will view these issues as the traditional concepts of natural resources law fade and are replaced by new approaches, often centrally involving tribal views.

In this semester, we will begin with the roots of both natural resources and federal Indian law, which both grow from the nation’s complicated history with its environment and first peoples. Considering the philosophies behind each body of law will then help us analyze how Indian country came to be and the nature of tribal property rights. We will then learn how our nation’s three sovereigns (federal, state and tribal governments) exercise authority over tribal lands, particularly with regard to the regulation of natural resources (such as hunting and fishing) and environmental issues. The unique federal-tribal relationship creates its own set of issues, which we will tackle through discussion of the day-to-day challenges that tribes face in trying to use their lands. Beyond land, we will also discuss water and the complicated integration of tribal reserved rights into the existing (but doomed?) prior appropriation scheme. We will conclude with tribal usufructuary rights – rights exercised by tribes since time immemorial, guaranteed by century-old treaties, and now the source of vigorous debate, new legal approaches, and opportunities for cross-boundary collaboration. Throughout each of these topical areas, we will endeavor to establish the strong foundational concepts and then build upon our understanding through more modern day examples, case-studies, and, depending on our schedules, guest lecturers and a possible field trip.

I look forward to our shared journey through the course!

II.Course Requirements.

1. Textbook: Native American Natural Resources Law: Cases and Materials(Judith V. Royster, Michael C. Blumm & Elizabeth Ann Kronkeds., 2013). One copy is on reserve in the library.

1. Additional Readings: We will also read and discuss a few chapters from Charles Wilkinson’s Crossing the Next Meridian: Land, Water, and the Future of the West (1992), which is on reserve in the library or you can borrow from me but which I would also highly recommend purchasing and reading if you’re interested in these issues. I will also be posting additional readings on Moodle as we move through the semester.

1. Assessment: Your assessment in the class will be based on the following:

Attendance and participation. There are three components to this assessment, which are described in additional detail below:25%

In-class case study presentation. Each of you will be responsible for researching and presenting to the class a relevant case study that will help expand our understanding of the issues we will be discussing. Although you are free to choose your own topic for the case study, you will need to prepare and submit a brief written summary of your topic and proposed presentation for review by not later than October 5, 2015. Upon approval of your topic, you will be responsible for preparing a 10-15 minute detailed presentation to the class regarding the subject. Your presentation should focus on those aspects of the case study that are most relevant to the themes of our course and you should be prepared to answer questions from the class. Your grade will depend upon the thoroughness of your preparation, the depth and quality of the information you present and the clarity of your presentation to the class. 15%

Comprehensive Final Exam. The final exam will be a comprehensive exam, which will be graded anonymously. Although the precise format of the exam is subject to change and further refinement, the exam will likely be open book/open note and consist of a variety of formats (i.e., multiple choice, short answer and essay questions). We can have an exam review session if requested at or near the end of the semester.60%

1. Attendance: Just asattorneys are expected to show up for court dates, you are expected to come to class, unless prohibited from doing so by unforeseen or unavoidable circumstances. Your grade for attendance and participation will be affected after three unexcused absences. Also, please inform me as soon as possible if you will be unable to attend a class session. (5%)

1. In-Class Participation: As with attendance, you are also expected to arrive to class having read the materials for that class session and prepared to actively contribute to our discussion of them. You are expected to participate in the classroom to an appropriate extent and your participation is expected and encouraged even if you may not have the “right answer”. If called upon, you will be allowed one “pass” if you feel you are not able to participate but, after that, your participation grade will be affected if you fail to participate in class.To encourage maximum participation and open discussion, please do not record class sessions. (10%)

1. Laptop Usage: Class participation includes staying focused on the topic under discussion and being ready to participate in discussions. If you find non-class related laptop activities of other classmates distracting during class time, please notify me so appropriate steps can be taken to handle the situation

1. Out-of-Class Participation: In addition to in-class participation, you are expected to spend some out-of-class time reflecting on the topics we’ve discussed. Each of you will be responsible for posting a question, thought, concept, or idea to the course’s Moodle page for the rest of us to consider and provide brief (not more than 300 words) responses.Depending on the number of us, you will therefore be responsible for one question and up to seven responses over the course of the semester, and we will discuss the questions and responses in class. These questions and responses are not intended to be detailed or require research and will not be graded for specific content. Instead, they are intended to provide a more reflective avenue to assist with the themes or meaning of the course. (10%)

1. Academic Honesty/Conduct: All students must practice academic honesty. Academic misconduct is subject to an academic penalty by the course instructor and/or a disciplinary sanction by the University. All students need to be familiar with the Student Conduct Code. The Code is available for review online at Student Conduct Code. Law students should also be familiar with the Law School Honor Code, which can be found in Appendix A of the Law Student Handbook.

1. Equal Access Protections: The University of Montana assures equal access to instruction through collaboration between students with disabilities, instructors, and Disability Services for Students (DSS). If you think you may have a disability adversely affecting your academic performance, and you have not already registered with DSS, please contact DSS in Lommasson 154. The Law School will work with you and DSS to provide an appropriate accommodation.

III.Contact Information.

Monte Mills

Office 112 (1st floor – clinic wing)

406-243-2544

Office Hours: 2:30-4:00 pm Mondays and Wednesdays or by appointment

IV.Course Outline and Schedule.

Below is a rough outline of the topics to be covered during the entire course and the class schedule for the first part of the semester. Although we will do our best to maintain a regular schedule, prolonged class discussion, guest speaker availability or other more pressing events or interesting issues may require revisions to the schedule. In any event, I will endeavor to provide reading assignments at least a week in advance.

Topics Outline

ROOTS

Natural resources

Indian law

LAND

History of Indian title

Recognized title

Exec. Order Reservations

Submerged lands

Allotments

Fee-to-trust and modern complications

REGULATION

Land Use/Jurisdiction

Environmental regulation

Federal Role in Tribal Land Management

Tribal land as federal land and accordant challenges

The trust responsibility and self-determination

New approaches – HEARTH Act, TERAs, and new regulations

WATER

Reserved rights

Scope and extent

Determination

Settlements

Indian Irrigation Projects

USE (TREATY) RIGHTS

Survival

Regulation

Scope and extent

Loss/diminishment

American Indian Natural Resources Course Schedule

Topics / Textbook (Royster, et al.) / Additional Readings
Week 1
Aug. 31 &
Sept. 2 / Themes of the Course and Background
Natural Resources law and the “Tragedy of the Commons”
Legal Protection of Native Religious and Cultural Resources / 8/31: Intro and first part of Chapter 1, pgs. xxv-xxvi; 3-10
9/2: 11-51 / Chapter 1(The Lords of Yesterday), Charles F. Wilkinson, Crossing the Next Meridian (1992), pgs. 5-27.
Parts I and II of Sean M. Kammer, ‘No Trespassing’: Railroad Land Grants, the Right of Exclusion, and the Origins of Federal Forest Conservation, 90 N.D. L. Rev. 87, 87-99 (2014).
NPS Proposed Gathering Rule
Week 2
Sept. 9 / Follow-up in-class exercise re: Solonex v. Jewell / Solonex v. Jewell Order, Proposed Schedule, ACHP letter and exercise (to be distributed after 9/2 class)
Week 3
Sept. 14 & 16 / Indian law basics (trust, plenary power) and eras of federal Indian policy
Indian Country & Recent Developments / 51-78
78-99 / Secretarial Order 3335
Carcieri v. Salazar, 555 U.S. 379 (2009);
AkiachakNative Comm. v. Salazar, 935 F.Supp. 2d 195 (D.D.C. 2013).
SKIM: Proposed land into trust rule for Alaska, 79 Fed. Reg. 76889 (Dec. 23, 2014) & 25 C.F.R. pt. 151.
Week 4
Sept. 21 & 23 / Diminishment &
Land/Types of Title
Aboriginal and Recognized Title
Land/Types of Title, continued
EO Reservations, Submerged and allotted lands and the legacy of allotment / 99-127; 135-159
159-187 / Website for the Department of the Interior’s land Buyback Program
Week 5
Sept. 28 & 30 / Jurisdiction ~ Regulatory Authority over Land Use
Limits on tribal jurisdictional authority
Salish Kootenai Dam / 189-218 / Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011);
Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F. 3d 167 (5th Cir. 2014).
Order in Keenan, et al. v. Bay, et al., Civil Action 1:15-cv-01440, U.S. District Court for the District of Columbia (Sept. 4, 2015)
Chapter 6 (Harvesting the April Rivers) in Crossing, pgs. 219-292.
Guest Speaker:
Joe Hovenkotter, General Counsel, Energy Keepers Inc.
Oct. 1 & 2
Optional / 36th Bi-Annual Public Land Law Conference –Transcending Boundaries: Achieving Success in Cooperative Management of Natural Resources / See Conference Schedule, available at the Public Land & Resources Law Review Website:

2015_schedule.pdf
Conference attendance is optional but encouraged and students can also attend the field trip to Kerr Dam and the National Bison Range on Thursday, October 1.
Week 6 Oct. 5 & 7 / Jurisdiction ~ Regulatory Authority under federal environmental statutes / SDWA, CWA: 218-239 (stop at Note 2)
CAA, RCRA, CERCLA
239-260 / Proposed Rule: Revised Interpretation of Clean Water Act Tribal Provision, available at
Oklahoma Dept. of Envt’l. Quality v. EPA, 740 F.3d 185 (7th Cir. 2014)

Week 7
Oct. 12 & 14 / NEPA
Tribal Natural Resources Development
Statutory background
Balancing self-determination and the trust responsibility / 260-275
277-286 / Executive Order 13175
Secretarial Order 3206
Opinion in Cascadia Wildlands, et al. v. BIA and Coquille Indian Tribe (on Moodle)
Judith V. Royster, Practical Sovereignty, Political Sovereignty, and the Indian Tribal Energy Development and Self-Determination Act, 12 Lewis & Clark L. Rev. 1065 (2008).
Indian Energy Development: Poor Management by BIA has Hindered Energy Development on Indian Lands, U.S. General Accountability Office, Rept. GAO-15-502 (June 2015).
Week 8
Oct. 19 & 21 / Renewables and
Rights-of-Way
Enforcing (?) the Trust Responsibility / 286-309 / Elizabeth Ann Kronk Warner, Tribal Renewable Energy Development under the HEARTH Act; An Independently Rational but Collectively Deficient Option, 55 Ariz. L. Rev. 1031 (2013).
Salazar Finalizes Reforms to Streamline Leasing, Spur Economic Development on 56 Million Acres of American Indian Trust Land,
25 C.F.R. Part 162 and supporting information (FAQ, Comparison Chart), available at (scroll down).
Proposed Rule Regarding Rights-of-Way, Information at (scroll down)
U.S. v. Jicarilla Nation, 131 S.Ct. 2313 (2011).
Week 9
Oct. 26 &
28 / WaterI
Reserved rights
Quantification
groundwater / 367-381
382-405 / Sarah Krakoff, Settler Colonialism and Reclamation Where American Indian Law and Natural Resources Law Meet, 24 Colo. Nat. Res., Energy & Envtl. L. Rev. 261 (2013).
Order granting in part and denying in part Plaintiffs’ and Defendants’ motions for partial summary judgment, Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District et al., Case No. EDCV 13-883-JGB (March 20, 2015) [on Moodle]
Week 10
Nov. 2 & 4 / Water II
Uses, Rights of allottees and subsequent purchasers, and water quality
Determination of water rights and water rights settlements / 405-426
426-452 / State ex rel. Greely v. CSKT, 712 P.2d. 754, 219 Mont. 76 (1985).
Week 11
Nov. 9 & 10 / Water Rights Settlements in Montana
Guest Speaker – John Carter / Please select a particular water rights compact (except for CSKT) to review and be prepared to present it to the class. You should be able to tell us about the nature of the settlement, what the settlement provides for the relevant tribe, whether the tribe appeared to concede anything in the compact, and the current status of the compact. Approved compacts can be found here:
In lieu of class on Tuesday morning, please plan to attend a discussion with John Carter, CSKT attorney, will be a guest speaker during the Indian Law Clinic’s meeting from 1:10 to 2:40 on Tuesday afternoon and who will discuss the CSKT compact. Please review the CSKT compact, particularly in comparison to the other compacts we have reviewed. Please be prepared to ask good questions.
Week 12
Nov. 16 & 18 / Treaty Rights
Off Reservation Rights
Treaty basis
Defeasibility
Regulation
Treaty Rights Cont.
Scope of rights / 459-477
482-496
495-525 / EPA Policy on Consultation and Coordination with Indian Tribes: Draft Guidance for Discussing Tribal Treaty Rights:
Please review the existing and proposed draft Native American Policy for the U.S. Fish and Wildlife Service. Both are available here:
Week 13 Nov. 23 / Treaty rights
Case Study and oral argument / 535-543(Dion and notes) / For Oral Arguments:
Order in Wyoming v. Herrera (on Moodle). See also Crow Tribe v. Repsis, 73 F.3d 982 (10th Cir. 1995); Ward v. Race Horse, 163 U.S. 514 (1896) (both covered in our textbook as well).
Week 14 Nov. 30 & Dec. 2 / Student Presentations and Wrap-up

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