Journals
Spring 2006, Vol. 46, No. 2
Essay—New Paradigm: Indian Tribes in the Land of Unintended Consequences
Sam Deloria
In the nearly 50 years since the end of the Termination Policy, Indian tribes have aggressively pursued their legal rights and powers to the point where they have reached bedrock. Federal Indian law in 1960 consisted of doctrines concerning tribal sovereignty and federal and state power, some of them dating back to John Marshall, and most of them untested in the political and legal arena. The explosion of tribal activity in the last 46 years has led to the resolution of many questions, and there are few marginal issues left; virtually every major issue remaining on the table goes to the very nature of an Indian tribe. The next few years may well see the resolution of these major questions, and it is up to the tribes to see that they are addressed in the most favorable context.
An Indian Trust for the Twenty-First Century
Kevin Gover
The statutory and policy bases of the federal trust responsibility for Indian lands arose at the end of the nineteenth century and the beginning of the twentieth century. Policy at that time was based on two related propositions: (1) Indians are incompetent and (2) Indian tribes were soon to be dismantled as political institutions separate from the United States. These notions were basic to the judicial development of the doctrine of federal plenary power over Indians and their property. With these ideas as the foundation of the trust, it grew into a stifling, paternalistic, and ultimately ineffective system of managing Indian property. While virtually all other areas of federal Indian policy have undergone dramatic change, with a radical shifting of authority from the Bureau of Indian Affairs to tribal governments, the trust remains largely ineffective, unenforceable, and immune from fundamental change.
Congress must change the trust to reflect the capabilities of the tribes and to implement the federal policy of empowering tribal governments to meet their responsibilities as permanent components of the American federalist system. Tribes should be offered the opportunity to manage their lands without federal supervision while at the same time sustaining their immunities and authorities regarding trust lands. Congress should create both financial and policy incentives for tribal governments to assume these responsibilities. Rather than insisting that the Department of the Interior improve its execution of a system that is flawed at its foundation, Congress should clear a path for tribes that wish to use their primary capital asset—land—to create the financial resources needed to build viable reservation economies. By doing so, Congress will bring the trust into the twenty-first century.
Indian Water and the Federal Trust: Some Proposals for Federal Action
Judith V. Royster
Indian tribal reserved rights to water constitute trust assets under the protection of the federal government. Nonetheless, the federal government’s duty of protection, and remedies against the government if it fails in that duty, are seldom recognized by law. Congress could protect tribal water rights through enactment of comprehensive regulatory legislation, but such legislation would run counter to the modern trend of recognizing increasing tribal control over natural resources and would interfere with tribes’ authority to manage their water. There are, however, a number of steps that Congress and the Department of the Interior could take in fulfillment of the federal trust responsibility for Indian water rights. These proposals, briefly outlined here, would assist tribes with the development and management of their water resources and remove obstacles to tribal authority over water that presently exist in federal law.
Indian Water Rights and the Federal Trust Responsibility
Robert T. Anderson
Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modern litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non-Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history of Indian water rights and concludes that the traditional practicably irrigable acreage quantification standard should be adhered to by the courts—supplemented by the homeland theory that awards water to fulfill all purposes behind creation of a reservation. The author also argues that the Executive Branch should adopt firm budgetary policies that promote settlements as an Administration priority in order to ameliorate historic inequities in western water development.
Moving Toward Exclusive Tribal Autonomy over Lands and Natural Resources
Stacy L. Leeds
Tribal governments and individual American Indians lack autonomy over their lands and natural resources. Rather than owning their lands outright and enjoying the autonomy that property ownership ensures, tribes are relegated to a beneficiary status beholden to the federal government as the trustee over tribal lands. This article, by advocating a return to tribal control, provides new alternatives to the out-dated federal policies controlling the tribal land tenure system.
A Paradigmatic, Comparative, Private-Law Perspective on the Federal Trusteeship
Robert Laurence
The trust responsibility that is the topic of the present Symposium was established early on to be a status-based matter of public law governing the relationship between the United States and the various tribes and their members. The benefits of this trusteeship, as well as its detriments are manifest and are discussed with insight and expertise by the other papers in the Symposium. In this article, Professor Laurence takes a look from the unusual perspective of private, not public, law. In an even greater departure from traditional dogma, Professor Laurence uses not private trust law, but private contracts law to serve as the basis of his perspective, in particular, finding that there is—or ought to be—a standard of enhanced good faith in all transactions between the government (and private parties) and the tribes and their members. Using a comparison from Australian Aboriginal law, the article concludes not with a replacement model for the present trust responsibility, but with what insights, if any, that can be gained from looking at an old problem from a markedly new perspective.
"Not Much Less Necessary…Than the Atmosphere They Breathed": Salmon, Indian Treaties, and the Supreme Court—A Centennial Remembrance of United States v. Winans and Its Enduring Significance
Michael C. Blumm & James Brunberg
A century ago, the Supreme Court decided United States v. Winans, which upheld the Indian treaty right to cross private property to access traditional fishing grounds in the Columbia River. The Winans decision protected critically important cultural and economic practices from white encroachment. The landmark case came as a surprise in an era committed to Indian assimilation and allotment. This article examines the case, its context, its participants, and its contributions to Indian natural resources law.
The dispute took place at Celilo Falls, the most important Indian fishing site in the Columbia Basin, although the government agents and attorneys viewed it as a test case emblematic of the clash of cultures taking place throughout the Northwest at the end of the nineteenth century. In fact, the article considers in some depth two predecessor cases involving the same tract of land at issue in Winans and suggests that the Indian agents who pursued the case did so because they saw treaty fishing as an economic lifeline for Indians who had failed at agrarianism on-reservation.
The district court issued a confusing array of injunctions and opinions that ultimately culminated in dismissal of the case some eight years after it was filed. A direct appeal to the Supreme Court produced an opinion memorable almost as much for its poetic language as for its result. Justice Joseph McKenna, not otherwise known for his lyricism, wrote that fishing at Celilo Falls was "not much less necessary to the Indians than the atmosphere they breathed” and proceeded to rule that their treaty rights included the imposition of a “servitude, a right in land" over lands necessary to access their traditional fishing sites. In response to the lower court’s conclusion that the treaty language recognizing a tribal "right of taking fish in common with settlers" meant only equality of treatment, McKenna averred that such a result was "certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more."
The decision’s lodestar status is not merely due to its language, however. It established the reserved rights doctrine, which holds that Indian treaties are "not a grant of rights to the Indians but a grant of rights from them—a reservation of rights not granted." Over the last century, the reserved rights doctrine has been immensely important in recognizing tribal proprietary rights to natural resources and in protecting tribal sovereignty. Winans also reaffirmed the rule that Indian treaties should be interpreted as the Indians, the weaker party, would have understood and rejected claims that state ownership of the riverbed foreclosed federally created treaty rights. Both of these principles endure. Finally, the case recognized treaty fishing rights as property rights that would run against not only the federal government but also burden the state and private parties, a precedent that some recent lower court decisions seem to have overlooked.
