American Indian Natural Resources Law
Fall Semester 2015
10:30 a.m. – 12:00 noon, Mondays and Wednesdays, Room 215
I.
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.
A. Textbook: NATIVE AMERICAN NATURAL RESOURCES LAW: CASES AND MATERIALS
(Judith V. Royster, Michael C. Blumm & Elizabeth Ann Kronk eds., 2013). One copy is
on reserve in the library.
B. 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
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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.
C. 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%
D. Attendance: Just as attorneys 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%)
E. 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%)
F. 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
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laptop activities of other classmates distracting during class time, please notify me so
appropriate steps can be taken to handle the situation
G. 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%)
H. 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.
I. 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
monte.mills@umontana.edu
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.
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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
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American Indian Natural Resources Course Schedule
Topics
Week 1
Aug. 31
&
Sept. 2
Week 2
Sept. 9
Week 3
Sept. 14
& 16
Week 4
Sept. 21
& 23
Textbook
(Royster,
et al.)
Themes of the Course 8/31:
and Background
Intro and
Natural Resources first part
law and the
of Chapter
“Tragedy of the
1, pgs.
Commons”
xxv-xxvi;
3-10
Additional Readings
Legal Protection
9/2: 11-51
of Native
Religious and
Cultural
Resources
Follow-up in-class
exercise re: Solonex
v. Jewell
NPS Proposed Gathering Rule
Indian law basics
(trust, plenary
power) and eras
of federal Indian
policy
51-78
Secretarial Order 3335
Indian Country &
Recent
Developments
78-99
Carcieri v. Salazar, 555 U.S. 379 (2009);
Akiachak Native 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.
Diminishment &
Land/Types of Title
Aboriginal and
Recognized Title
99-127;
135-159
Land/Types of Title, 159-187
continued
EO Reservations,
Submerged and
allotted lands and
the legacy of
allotment
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).
Solonex v. Jewell Order, Proposed Schedule, ACHP letter
and exercise (to be distributed after 9/2 class)
Website for the Department of the Interior’s land
Buyback Program
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Topics
Week 5
Sept. 28
& 30
Jurisdiction ~
Regulatory Authority
over Land Use
Limits on tribal
jurisdictional
authority
Textbook
(Royster,
et al.)
189-218
Salish Kootenai
Dam
Oct. 1 & 36th Bi-Annual
2
Public Land Law
Optional Conference –
Transcending
Boundaries:
Achieving Success
in Cooperative
Management of
Natural Resources
Week 6
Jurisdiction ~
Oct. 5 & Regulatory Authority
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under federal
environmental
statutes
NEPA
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-cv01440, 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.
See Conference Schedule, available at the Public Land
& Resources Law Review Website:
http://scholarship.law.umt.edu/pllsymposium/2015PL
LC/
2015_schedule.pdf
SDWA,
CWA:
218-239
(stop at
Note 2)
CAA,
RCRA,
CERCLA
239-260
Week 7
Oct. 12
& 14
Additional Readings
260-275
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.
Proposed Rule: Revised Interpretation of Clean Water
Act Tribal Provision, available at
http://water.epa.gov/scitech/swguidance/standards/w
qslibrary/tribal.cfm
Oklahoma Dept. of Envt’l. Quality v. EPA, 740 F.3d 185
(7th Cir. 2014)
http://trib.com/news/state-and-regional/govt-andpolitics/tribe-claims-state-of-wyoming-changed-itstune-on-epa/article_83480027-42b8-5ad9-bb906806f9e5f6dd.html
Executive Order 13175
Secretarial Order 3206
Opinion in Cascadia Wildlands, et al. v. BIA and Coquille
Indian Tribe (on Moodle)
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Topics
Week 8
Oct. 19
& 21
Week 9
Oct. 26
&
28
Tribal Natural
Resources
Development
Statutory
background
Balancing selfdetermination and
the trust
responsibility
Renewables and
Rights-of-Way
Textbook
(Royster,
et al.)
277-286
Additional Readings
Judith V. Royster, Practical Sovereignty, Political Sovereignty,
and the Indian Tribal Energy Development and SelfDetermination 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).
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,
https://www.doi.gov/news/pressreleases/salazarfinalizes-reforms-to-streamline-leasing-spur-economicdevelopment-on-56-million-acres-of-american-indiantrust-land.
25 C.F.R. Part 162 and supporting information (FAQ,
Comparison Chart), available at
http://www.indianaffairs.gov/WhoWeAre/ASIA/Consultation/index.htm (scroll down).
Proposed Rule Regarding Rights-of-Way, Information
at http://bia.gov/WhoWeAre/ASIA/ORM/RightsofWay/index.htm (scroll down)
Enforcing (?) the
Trust Responsibility
Water I
Reserved rights
286-309
U.S. v. Jicarilla Nation, 131 S.Ct. 2313 (2011).
367-381
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).
Quantification &
groundwater
382-405
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 Water II
Nov. 2 & Uses, Rights of
4
allottees and
subsequent
405-426
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Topics
Textbook
(Royster,
et al.)
Additional Readings
426-452
State ex rel. Greely v. CSKT, 712 P.2d. 754, 219 Mont. 76
(1985).
purchasers, and
water quality
Determination of
water rights and
water rights
settlements
Week 11 Water Rights
Nov. 9 & Settlements in
10
Montana
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:
http://dnrc.mt.gov/divisions/reserved-water-rightscompact-commission/approved-compacts
Guest Speaker –
John Carter
Week 12
Nov. 16
& 18
Week 13
Nov. 23
Treaty Rights
Off Reservation
Rights
Treaty basis
Defeasibility
Regulation
459-477
482-496
Treaty Rights Cont.
Scope of rights
495-525
Treaty rights
Case Study and
oral argument
535-543
(Dion and
notes)
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.
EPA Policy on Consultation and Coordination with
Indian Tribes: Draft Guidance for Discussing Tribal
Treaty Rights:
http://www.epa.gov/tribal/consultation/commentsttr.htm
Please review the existing and proposed draft Native
American Policy for the U.S. Fish and Wildlife Service.
Both are available here:
https://www.federalregister.gov/articles/2015/08/03/
2015-18918/native-american-policy-for-the-us-fishand-wildlife-service
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).
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Topics
Week 14
Nov. 30
& Dec. 2
Textbook
(Royster,
et al.)
Additional Readings
Student
Presentations and
Wrap-up
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