NESC 488: Native American Environmental Law
Syllabus
Fall, 2011
Instructor: Steve Pavlik
Office: Fac. Bld. 211
Telephone: 360-392-4307
Days: Tues/Thurs/Fri
Time: 9:30 – 10:50 am
Room: CAC
E-mail: spavlik@nwic.edu
“No real progress can be made in environmental law unless some of the insights into the sacredness of land
derived from traditional tribal religions become basic attitudes of the larger society.”
Vine Deloria, Jr.
Course description: This course examines the philosophical background and case law
pertaining to Native American management of land, water, and natural resources.
Emphasis will be placed on the nature of the federal-tribal trust relationship and the
doctrine of reserved rights as it applies to the land and water. Also included in this
course will be an analysis of federal environmental law as it is applied to the access, use,
and protection of sacred lands and sites (Five credits).
Prerequisites: POLS 118 and/or POLS 225. POLS 240 can sometimes be substituted,
but only upon instructor’s approval.
Textbook:
Native American Natural Resources Law: Cases and Materials
By Judith V. Royster
Carolina Academic Press (2007).
Other readings as provided.
In addition to the above textbook, I would also advice each student to
purchase a small (pocket edition) of a law dictionary. The standard two
are Black’s and Barron’s. Merriam-Webster also publishes one as well.
These can be ordered through Amazon.com or likely be picked up at most
used bookstores.
NWIC outcomes: As a result of this course students will be able to:
1. Demonstrate a sense of place.
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2. Demonstrate an understanding of what it is to be a people.
Course outcomes: As a result of this course students will:
1. Examine the nature of traditional tribal law and identify how it can be
incorporated into the foundation of modern day tribal land, water, and natural
resource management.
2. Analyze the major court decisions that have upheld the reserved rights doctrine as
it applies to hunting and fishing, and other natural resource uses; and explore its
application to broadening existing tribal management of land, water, and natural
resources.
3. Critique the federal trust doctrine as it applies to the management and use of tribal
land, water, and natural resources.
4. Interpret key pieces of federal legislation, such as the National Environmental
Protection Act (NEPA), Endangered Species Act (ESA) and Magnusson-Stevens
Act, and determine their impacts upon tribal land use and resource management.
5. Evaluate the historical origins and implications of the American Indian Religious
Freedoms Act (AIRFA), and other legislation, as these laws apply to the access,
use, and protection of sacred lands, and traditional and customary use areas.
Class preparation: Students are expected to come to class and be prepared to engage in
critical analysis discussion. Students are strongly encouraged to take notes of discussions,
lectures, and readings, which will be used for the preparation of developing research
paper topics.
The use of cell phones, computers, and other electronic devices is strictly prohibited in
class – write out your notes the “old fashioned” way – with pencil or pen and paper.
Class attendance: “Eighty percent of success is simply showing up.”
Woody Allen
One of the best indicators of academic success is good attendance. You are expected to
attend every class and be on time. You are also expected to remain in class for the
duration of the class period – this includes not getting up and simply walking out of the
classroom (which I will interpret as a lack of interest on your part). I will take role at the
beginning of class. If you are late, it is your responsibility to see me, during the break or
after class, to assure that you have been marked as being present. Students arriving more
than 15 minutes late will be considered absent.
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Assignments: This course is built around the daily readings, lectures and discussions. It
is absolutely critical that you keep up with the readings in this class, and that you take
notes during the lectures. Throughout the course I will be employing the “cold call”
method to ensure that you are keeping up on your readings - beginning every class by
asking each of you very specific (obvious) questions that require answers that will reveal
if you read or did not read the assigned reading for the day. Failure to answer these
questions appropriately will result in a loss of class participation points.
Students will be required to write a three page reflective paper on each assigned reading
(topic). These papers must be typed using double-space, twelve point font. Your name,
date, and the title of the reading or topic must appear in the upper left hand corner of your
paper using single-spaced type. A strict due date will exist for each paper (see list).
Papers that are received more than one week late will be worth 50% of their original
point value. Papers that are received two weeks late will be worth 25%. No papers will
be accepted more than two weeks late unless prior approval is granted by the instructor.
We will occasionally watch videos or invite a guest speaker into the classroom. Students
will be required to complete a one-page handwritten summary on these special events or
activities.
A final research paper is required of each student, which will be based on the case law
studied in this class. These research papers should reflect a combination of the student’s
Native Environmental Science interest area. There should also be a connection to
existing tribal management practices and/or current environmental issues, and supporting
evidence to increase and/or improve policy, management, and/or access to existing tribal
land, water, and natural resources.
Research papers must be standard APA format, no less than 10 pages – excluding a
reference list that will include a minimum of ten cited sources.
Please note: I do not lend out my lecture notes. If you are absent from class it is your
responsibility to find out what you missed by coming into my office to see me, or by
talking to a classmate. You are expected to get caught up by the next class and prepared
to move on.
A special note to ITV students: Taking a course over ITV requires a special
commitment and a sense of responsibility on the part of both the student and the
instructor. Difficulties with the technical aspects of the process, and limitations in direct
communication between the student and the instructor are just two of the problems that
might arise. Having said this, ITV is a wonderful learning vehicle, and potentially a great
experience for all involved in the process. Remember that your good attendance is even
more critical for success over ITV. Moreover, it is extremely important that you remain
engaged in the classroom experience. Ask questions! Join in the discussion! Be a part
of the classroom experience.
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Grading procedures and policy: Your final grade will consist of the cumulative total of
all points earned during the quarter. In general, the reflective papers will comprise 70%
of your final grade, final research paper – 20%, and class participation – 10%.
Course outline:
Please note: Students are expected and required to have the assigned readings read before
the first day of class of the week they are assigned. Do not fall behind in your readings!
Week One:
(Sept. 19-23)
Introduction/The Legal Universe: Concepts and Language of the Law
Reading: “The Natural World and the Law,” by David E. Wilkins (and
Vine Deloria, Jr.) in The Legal Universe: Observations on the
Foundations of American Law. (2011).
Week Two:
(Sept. 26-30)
Sacred Land, Sacred Law: The nature and application of traditional law
as it applies to the natural world.
Reading: Royster and Blumm, Chapter I
Students are responsible for:
Lyng v. Northwest Indian Cemetery Protective Association
Navajo Nation v. U.S. Forest Service
Essay exerts by Pommersheim, Blumm, and Tsosie.
Week Three:
(Oct. 3-7)
The Marshall Trilogy: Foundations of Federal Indian Law and Tribal
Resource Management.
Reading: Royster and Blumm, Chapter II
Students are responsible for:
Cherokee Nation v. Georgia
Worcester v. Georgia
Lone Wolf v. Hitchcock
Alaska v. Native Village of Venetie Tribal Government
Section “C” – Felix Cohen, Handbook of Federal Indian Law.
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Guest speaker (October 7th) – Dr. David E. Wilkins
Week Four:
(Oct. 10-14)
In The Light of Reverence: Native American Land, Religion, and Culture
Reading: TBA
Week Five:
(Oct. 17-21)
A Sense of Place: Native Land and Tribal Resources
Reading: Royster and Blumm, Chapter III
Students are responsible for:
Tee-Hit-Ton Indians v. United States
United States v. Sioux Nation of Indians
Week Six:
(Oct. 24-28)
Tribal Land Use and Environmental Protection
Reading: Royster and Blumm, Chapter IV
Students are responsible for:
Montana v. United States
New Mexico v. Mescalero Apache Tribe
State of Washington, Dept. of Ecology v. U.S. EPA, or
City of Albuquerque v. Browner, or
Metcalf v. Daley
Week Seven: Tribal Natural Resource Development
(Oct. 31-Nov. 4)
Reading: Royster and Blumm, Chapter V
Students are responsible for:
United States v. Mitchell
Week Eight:
(Nov. 7-11)
The Taxation of Tribal Natural Resources
Reading: Royster and Blumm, Chapter VI
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Students are responsible for:
Merrion v. Jicarilla Apache Tribe
Cotton Petroleum Corporation v. New Mexico
Week Nine:
(Nov. 14-18)
Tribal Water Rights: The Winters Doctrine and Other Case Law
Reading: Royster and Blumm, Chapter VII
Students are responsible for:
Winters v. United States
Arizona v. California
Arizona v. San Carlos Apache Tribe of Arizona
Week Ten:
(Nov. 21-25)
Tribal Usfructuary Rights: Hunting, Fishing, and Gathering
Reading: Royster and Blumm, Chapter VIII
Students are responsible for:
Minnesota v. Mille Lac Band of Chippewa Indians
U.S. v. Winans Note: First read the text and notes of Winans, pages 401407.
Washington v. Washington State Commercial Passenger Fishing Vessel
Association
United States v. Dion or
Anderson v. Evans
Week Eleven: Tribal Usfructuary Rights, Continued.
(Nov. 28-Dec. 2)
Week Twelve: Homeland Security: Native American environmental law and the
(Dec. 5-9)
development of energy resources in Indian Country.
Reading: Royster and Blumm, Chapter IX
Students are responsible for:
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“The Convention Concerning Indigenous and Tribal Peoples in
Independent Countries.”
“U.N. Declaration on the Rights of Indigenous Peoples.”
Research Paper Due.
The final word: This syllabus is meant to be only a general guide to the course and is
not carved in stone. The instructor reserves the right to add or delete from this syllabus
as the course progresses. I will make every effort to inform you of any changes in a
timely manner.
Other suggested readings and resources:
Brian Edward Brown. 1999. Religion, Law, and the Land: Native Americans and the
Judicial Interpretation of Sacred Land. Westport, CT: Greenwood Press.
William C. Canby, Jr. 1981/1998. American Indian Law in a Nutshell. St. Paul, MN:
Thomson/West Publications.
Felix S. Cohen. 1942. Handbook of Federal Indian Law. Albuquerque, NM: University
of New Mexico Press.
Raymond L. Chow and Imre Sutton. 2001. Trusteeship in Change: Toward Tribal
Autonomy in Resource Management. Boulder: University of Colorado Press.
Cormac Cullinan. 2002. Wild Law: A Manifesto for Earth Justice. UK: Green Books.
Vine Deloria, Jr. 1979. “Self-Determination and the Concept of Sovereignty,” In
Roxanne Dunbar Ortiz, editor, Economic Development in American Indian Reservations.
Albuquerque, NM: University of New Mexico Press.
Vine Deloria, Jr. 1989. “Laws Founded in Justice and Humanity: Reflections on the
Content and Character of Federal Indian Law,” Arizona Law Review. Vol. 31, No. 2,
pages 2013-223.
Vine Deloria, Jr. 199. “Reserving to Themselves: Treaties and Powers of Indian Tribes,”
Arizona Law Review, Vol. 38, No. 1, pages 1-18.
Vine Deloria, Jr. and David E. Wilkins. 1999. Treaties, Tribes, and Constitutional
Tribulations. Austin: University of Texas Press.
Vine Deloria, Jr. and David E. Wilkins. 2011. The Legal Universe: Observations on the
Foundations of American Law. Boulder, CO: Fulcrum Press.
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Daniel A. Farber and Roger W. Findley. 1908/2010. Environmental Law in a Nutshell.
St. Paul, MN: West Publishing.
James M. Grijalva. 2008. Closing the Circle: Environmental Justice in Indian Country.
Durham, NC: Carolina Academic Press.
Roderick Frazier Nash. 1989. The Rights of Nature: A History of Environmental Ethics.
Madison: University of Wisconsin Press.
Stephen L. Pevar. 2004. The Rights of Indian Tribes. New York: New York University
Press.
Christopher. D. Stone. 1996. Should Trees Have Legal Standing? And Other Essays on
Law, Morals, and the Environment. Dobbs Ferry, NY: Oceana Publications.
Rebecca Tsosie. 1996. “Tribal Environmental Policy in an Era of Self-Determination:
The Role of Ethics, Economics, and Traditional Ecological Knowledge,” Vermont Law
Review. Vol. 21, No. 1, pages 1-86.
Christopher Vecsey, editor. 1991. Handbook of American Indian Religious Freedom.
New York: Crossroads Press.
David E. Wilkins. 1997. American Indian Tribal Sovereignty and the U.S. Supreme
Court. Austin: University of Texas.
Due Dates
1. Wilkins and Deloria – September 23
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2. Royster and Blum, Chapter I – September 30
3. Royster and Blum, Chapter II – October 7
4. Reading TBA – October 14
4. Royster and Blum, Chapter III – October 21
5. Royster and Blum, Chapter IV – October 28
6. Royster and Blum, Chapter V - November 4
7. Royster and Blum, Chapter VI – November 11
8. Royster and Blum, Chapter VII - November 18
9. Royster and Blum, Chapter VIII – November 23*
10. Royster and Blum, Chapter IX – December 2
*Note short week.
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