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Native American Natural Resources Law
University of Oklahoma College of Law
Helton, Taiawagi

 
Native American Natural Resources
Helton
Fall 2013
 
 
 
Three types of law apply to all people.
 
-Tribal Law
-International Law
-Federal Indian Law
 
As a matter of law, “Indian” is the word used by the Federal government.
 
We often hear two descriptors of Reservations
            -Islands of Poverty
            -Oases against the predations of 20th Century
 
There are almost 600 Federally Recognized Tribes.
Christian circles debate ‘dominion’ v. ‘stewardship’.
 
It’s almost a cultural compulsion to take resources and turn them to human use.
 
Indians
Colonists
-Resources
-Commodities
-Mobility
-Fixity
-Hunter/Gatherer
-Land is a means toward wealth
-Personal & kinship based.
-Accumulating wealth.
 
What happens when you replace your actual, physical wealth with currency?  Durable,
portable, fungible.
 
Tragedy of the commons!
The commons are a breadbasket and a cesspool.
As we shifted from a gift economy to a market economy, we got a lot whiter.
 
Prior owners are better off than owners that came later.  Adverse possessors are diiiiiicks.
You can adversely possess quicker if you have some sort of paper.  Even if that paper is in some way flawed.
 
Market economy: captured, sold for profit.
 
Blumm- salmon.  White settlers caught too many salmon and were doing it only 4 months out of the year.  Wreaking havoc on the salmon population.
 
Tsosie- 4 defining land features.
 
Rosser- crying Indian ad.  Pushes that the Indian agenda and the environmental agenda are the same.
 
Whaling case- high chance of loss of life.
Will tribes be empowered to make decisions for their own good?
Lyng v. NW Indian Cemetery Protective Association (1988)
 
Three-Part test
1.      Substantial burden on religion?  If the answer is no, than the government action is constitutional.  If the answer is yes, the government action is subject to strict scrutiny, which involves two questions.
2.      Is the action justified by a compelling government interest?
3.      If it is justified by a compelling interest, is the action narrowly tailored to achieve that interest?
 
In Lyng, the tribal members really have no legal remedies because they aren’t being
forced or coerced to NOT practice their religion.
The dissent thinks the effect on practice is what matters and the first amendment has been
turned on its head.
The American Indian Religious Freedom Act was passed as a response to federal policy. 
Like Indian religions being criminalized in the late 19th century.
In Lyng, congress stepped in and protected the environment there, so the road never
ended up being finished.
 
Religious Freedom Restoration Act of 1993
Navajo Nation (Snow Bowl case) 2008
 
Bear Lodge-  Devil’s Tower.  Cool as shit.
 
Initial case had a mandatory ban of climbing in June.  The second case proposed a
“voluntary” climbing ban, “in respect for reverence many American Indians hold
for Devil’s Tower as a sacred site.”
 
Lemon v. Kurtzman-  states that a government action accommodating religious practice is constitutional if
1.      It has a secular purpose.
2.      It does not have the principle purpose of advancing religion, and
3.      There is no excessive entanglement with religion.
 
A church is ONLY a religious entity
Tribes are religious, social, cultural and political entities.
 
Executive Order 13007- Clinton.  P. 35
 
Archeological Resources Protection Act  (1979)
            -Protects archeological resources on federal public lands and Indian lands.
            -Archeological activities require a permit.
            -Prohibits sale, purchase and transport of such resources taken in violation of any   
  state law.
            -Civil and criminal penalti

Hopi essentially have a theocracy.  They have a constitutionally protected religious
freedom.
 
Lone Wolf v. Hitchcock-  Scope of plenary power.
 
In Kagama, the court gives the guardian/ward relationship legal power for the first time.
 
The Kiowa and Comanche cede lands in 1867.  The treaty they made says they cannot
cede land without ¾ of the adult male population saying so.
 
Congress isn’t bound by the language.  Those bitches should be.  But, turns out it’s very
easy to abrogate a treaty.  They aren’t reeeeaallly bound by anything.  (p.75)
 
Plenary Power- extra-textured, extra-constitutional.  Plenary= “full”.
Full plenary power is exclusive, broad.
 
There is no judicial review, but congress still gets incredibly broad deference.
Very few (maybe 2) times, the judiciary has said congress acted outside its power.
 
To have a trust, you need a:
            Trustee- legal owner, limited rights.
            Beneficiary- People who live on the land.
            Asset- Often land.
 
Themes of the Trust Doctrine:
Tribal Sovereignty
Federal Power
Trust Duties
 
Eras
Marshall- Through Kagama
Plenary Power- 1883
Modern Era- 1975 – now.
 
Initially, the only federal law over tribes was don’t sell shit and blah blah blah.
Fairly weak federal power.
 
This changes in Kagama.  The court says tribal sovereignty is entirely subordinate to the
federal government.
The Seminole case of 1941 re-states the trust relationship and imports the common law
general trust law.