Saving the world’s terrestrial megafauna

From the late Pleistocene to the Holocene, and now the so called Anthropocene, humans have been driving an ongoing series of species declines and extinctions (Dirzo et al. 2014). Large-bodied mammals are typically at a higher risk of extinction than smaller ones (Cardillo et al. 2005). However, in some circumstances terrestrial megafauna populations have been able to recover some of their lost numbers due to strong conservation and political commitment, and human cultural changes (Chapron et al. 2014). Indeed many would be in considerably worse predicaments in the absence of conservation action (Hoffmann et al. 2015). Nevertheless, most mammalian megafauna face dramatic range contractions and population declines. In fact, 59% of the world’s largest carnivores (≥ 15 kg, n = 27) and 60% of the world’s largest herbivores (≥ 100 kg, n = 74) are classified as threatened with extinction on the International Union for the Conservation of Nature (IUCN) Red List (supplemental table S1 and S2). This situation is particularly dire in sub-Saharan Africa and Southeast Asia, home to the greatest diversity of extant megafauna (figure 1). Species at risk of extinction include some of the world’s most iconic animals—such as gorillas, rhinos, and big cats (figure 2 top row)—and, unfortunately, they are vanishing just as science is discovering their essential ecological roles (Estes et al. 2011). Here, our objectives are to raise awareness of how these megafauna are imperiled (species in supplemental table S1 and S2) and to stimulate broad interest in developing specific recommendations and concerted action to conserve them

A Changing of the Cattle Guard: The Bureau of Land Management’s New Approach to Grazing Qualifications

42 p.This Article examines the traditional permit qualifications analysis, explains the role played by the regulations that created it, and argues that the BLM’s new approach to the qualifications issue has finally opened the door for nontraditional permittees to a degree not seen before in over seventy years of federal government regulation of livestock grazing on public lands. In Part I, this Article introduces the concept of federal lands ranches and discusses the exclusive club of federal lands ranchers, who, until recently, controlled the vast majority of grazing permits. Part II examines the history of livestock grazing on public domain lands prior to Congress’s passage of the Taylor Grazing Act in 19345 and the origins of the terminology contained in the past and present qualifications rules. Part III discusses the provisions of the Taylor Grazing Act under which the Secretary of the Interior asserts the authority to create qualifications regulations. Part IV traces the historical evolution of the qualifications regulations and discusses the BLM’s current requirements and approach. Part V analyzes one example of a modern, nontraditional permittee that became qualified and obtained grazing permits on environmentally sensitive allotments in Utah and Arizona under the new model and concludes that this model will allow the BLM to more easily implement its statutory obligations and will greatly benefit the federal range

Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism

44 pagesThis Article will discuss the history and rise of the Plenary Power Doctrine in federal Indian law and the sources of congressional plenary power and illustrate its questionable foundation in Article III of the Constitution

The Constitutionality of Federal Regulation in Indian Country

The landmark 2020 U.S. Supreme Court decision in McGirt v. Oklahoma has seen no shortage of scholarly commentary and editorial reflection, due to the Court’s reaffirmation of some of the earliest principles of federal Indian law. As it renewed the longstanding rules of treaty interpretation and clarified the legal test for reservation diminishment, the majority opinion also made an intriguing reference to the relationship between the U.S. Congress and Tribes. The case involved a challenge by Jimcy McGirt, a citizen of the Seminole Nation of Oklahoma, who argued in post-conviction proceedings that the state of Oklahoma lacked jurisdiction to prosecute him for crimes he allegedly committed within the Muscogee Creek Nation. The general rule regarding jurisdiction over crimes committed in Indian Country is that states lack prosecutorial authority unless authorized by an act of Congress. To determine whether McGirt’s crimes were committed in Indian Country, on Muscogee Creek lands, the Court had to answer a threshold question of whether these lands were still Creek lands, or whether the Creek Reservation had been lawfully diminished over time. That, in turn, required the Court to examine the history of the federal government’s relationship with the Creek Nation, including Congress’s passage of the Major Crimes Act in 1885, establishing federal jurisdiction over certain crimes committed on tribal lands. After examining this Act, the majority made an intriguing statement: “By subjecting Indians to federal trials for crimes committed on tribal lands, Congress may have breached its promises to Tribes like the Creek that they would be free to govern themselves.” This statement is interesting when read in isolation, but when examined against the Court’s 150-year history of constitutional analysis of congressional delegations regarding Tribes, it becomes quite intriguing. In very plain text, the U.S. Constitution contains two references to Indigenous peoples and Tribes. The first is in Article 1, Section 2, which excludes “Indians not taxed” from the enumeration of state residents for the purposes of apportionment of representatives in Congress. The second is the so-called Indian Commerce Clause, found in Article 1, Section 8, Clause 3, which confers authority on Congress to regulate interstate commerce and commerce “with the Indian Tribes.” Those are the sole constitutional references regarding Indigenous peoples, and, although they are brief, they offer some hints about the Framers’ intent in drafting the Constitution. As previous scholars have noted, these provisions can be interpreted as a reflection of the Framers’ understanding that Indigenous peoples were not citizens of states for purposes of apportionment and that Tribes were separate sovereign entities with which the federal government would be engaging in regulated commerce. Yet, from these limited references, Congress has claimed general legislative authority over Indigenous peoples and Tribes dating back nearly 200 years. When Tribes have challenged these unilateral assumptions of regulatory authority, courts have nearly always deferred to Congress, citing the Indian Commerce Clause, alone or in combination with any number of circumstances that appear to justify federal regulation. Congress has chosen to extend its legislative authority far beyond what the Constitution originally contemplated, into areas such as criminal jurisdiction, child welfare, and on-reservation gaming. Congress has also directly regulated tribal governmental structure and other internal affairs, tribal environmental quality, and the use, consumption, and conservation of natural resources by and affecting Indigenous peoples. Congress undertook all of this regulation without a solid explanation—or examination—by the Supreme Court of its legal foundations, including the core question of whether it is constitutional for Congress to legislate regarding Indigenous peoples, the internal affairs of Tribes, and other matters affecting Indian Country and Indigenous lands. The Supreme Court has sanctioned Congress’s ever encroaching legislative fervor under the dubiously established doctrine of federal plenary power. But whether this authority is constitutional is still hotly debated, more than 200 years after Congress first employed it. And if the exercise of congressional plenary power is unconstitutional, that raises serious questions about the constitutionality of congressional delegations authorizing the regulation of Indigenous peoples and Tribes. The Supreme Court first examined the constitutionality of a delegation of authority from Congress to a Tribe in United States v. Mazurie, a 1974 case involving a federal liquor control statute. Under the framework the statute created, Tribes could seek approval from the Secretary of Interior and receive permission to enforce federal liquor control laws on tribal lands. In the face of a constitutional challenge to this framework, the Supreme Court held that it was within Congress’s Indian Commerce Clause authority. Congressional delegations of authority to the executive branch over Indigenous peoples, Tribes, and Indian Country are more elusive, but they are also routinely upheld by the Supreme Court under the Indian Commerce Clause. This history is what makes the Court’s recent statement in McGirt about Congress’s enactment of the Major Crimes Act—and its application within Creek Nation lands—so intriguing. If a majority of the Justices on the Supreme Court are finally willing to consider the constitutionality of a statute such as the Major Crimes Act—which has been federal law for 136 years—such review would raise a series of questions about the constitutionality of all congressional acts based on the Indian Commerce Clause. Among these questions are whether the Court’s willingness to review such acts is conditioned upon treaty promises, including promises made to the Creek Nation, which were of great importance to the majority in McGirt. It also may now be an open question whether it is inherently unconstitutional for Congress to pass legislation on matters unrelated to commerce with Tribes, regardless of prior treaties and the Supremacy Clause. An affirmative answer would render some legislation unconstitutional regardless of the form of the sovereign guarantee an individual Tribe had received in any prior treaty. In addition, many of Congress’s delegation structures, such as the one at issue in Mazurie, contemplate a tribal assumption of regulatory authority only upon receiving permission from the U.S. Department of the Interior or another federal agency official—even as these delegation structures purport to recognize the inherent sovereign authority of Tribes to govern themselves. Allowing this level of federal oversight does not seem consistent with the role that the Framers envisioned for Congress or the executive branch in the Constitution, nor is it consistent with federal promises made to so many Tribes, including the Creek Nation, that they would be forever “free to govern themselves.

The Constitutionality of Federal Regulation in Indian Country

The landmark 2020 U.S. Supreme Court decision in McGirt v. Oklahoma has seen no shortage of scholarly commentary and editorial reflection, due to the Court’s reaffirmation of some of the earliest principles of federal Indian law. As it renewed the longstanding rules of treaty interpretation and clarified the legal test for reservation diminishment, the majority opinion also made an intriguing reference to the relationship between the U.S. Congress and Tribes. The case involved a challenge by Jimcy McGirt, a citizen of the Seminole Nation of Oklahoma, who argued in post-conviction proceedings that the state of Oklahoma lacked jurisdiction to prosecute him for crimes he allegedly committed within the Muscogee Creek Nation. The general rule regarding jurisdiction over crimes committed in Indian Country is that states lack prosecutorial authority unless authorized by an act of Congress. To determine whether McGirt’s crimes were committed in Indian Country, on Muscogee Creek lands, the Court had to answer a threshold question of whether these lands were still Creek lands, or whether the Creek Reservation had been lawfully diminished over time. That, in turn, required the Court to examine the history of the federal government’s relationship with the Creek Nation, including Congress’s passage of the Major Crimes Act in 1885, establishing federal jurisdiction over certain crimes committed on tribal lands. After examining this Act, the majority made an intriguing statement: “By subjecting Indians to federal trials for crimes committed on tribal lands, Congress may have breached its promises to Tribes like the Creek that they would be free to govern themselves.” This statement is interesting when read in isolation, but when examined against the Court’s 150-year history of constitutional analysis of congressional delegations regarding Tribes, it becomes quite intriguing. In very plain text, the U.S. Constitution contains two references to Indigenous peoples and Tribes. The first is in Article 1, Section 2, which excludes “Indians not taxed” from the enumeration of state residents for the purposes of apportionment of representatives in Congress. The second is the so-called Indian Commerce Clause, found in Article 1, Section 8, Clause 3, which confers authority on Congress to regulate interstate commerce and commerce “with the Indian Tribes.” Those are the sole constitutional references regarding Indigenous peoples, and, although they are brief, they offer some hints about the Framers’ intent in drafting the Constitution. As previous scholars have noted, these provisions can be interpreted as a reflection of the Framers’ understanding that Indigenous peoples were not citizens of states for purposes of apportionment and that Tribes were separate sovereign entities with which the federal government would be engaging in regulated commerce. Yet, from these limited references, Congress has claimed general legislative authority over Indigenous peoples and Tribes dating back nearly 200 years. When Tribes have challenged these unilateral assumptions of regulatory authority, courts have nearly always deferred to Congress, citing the Indian Commerce Clause, alone or in combination with any number of circumstances that appear to justify federal regulation. Congress has chosen to extend its legislative authority far beyond what the Constitution originally contemplated, into areas such as criminal jurisdiction, child welfare, and on-reservation gaming. Congress has also directly regulated tribal governmental structure and other internal affairs, tribal environmental quality, and the use, consumption, and conservation of natural resources by and affecting Indigenous peoples. Congress undertook all of this regulation without a solid explanation—or examination—by the Supreme Court of its legal foundations, including the core question of whether it is constitutional for Congress to legislate regarding Indigenous peoples, the internal affairs of Tribes, and other matters affecting Indian Country and Indigenous lands. The Supreme Court has sanctioned Congress’s ever encroaching legislative fervor under the dubiously established doctrine of federal plenary power. But whether this authority is constitutional is still hotly debated, more than 200 years after Congress first employed it. And if the exercise of congressional plenary power is unconstitutional, that raises serious questions about the constitutionality of congressional delegations authorizing the regulation of Indigenous peoples and Tribes. The Supreme Court first examined the constitutionality of a delegation of authority from Congress to a Tribe in United States v. Mazurie, a 1974 case involving a federal liquor control statute. Under the framework the statute created, Tribes could seek approval from the Secretary of Interior and receive permission to enforce federal liquor control laws on tribal lands. In the face of a constitutional challenge to this framework, the Supreme Court held that it was within Congress’s Indian Commerce Clause authority. Congressional delegations of authority to the executive branch over Indigenous peoples, Tribes, and Indian Country are more elusive, but they are also routinely upheld by the Supreme Court under the Indian Commerce Clause. This history is what makes the Court’s recent statement in McGirt about Congress’s enactment of the Major Crimes Act—and its application within Creek Nation lands—so intriguing. If a majority of the Justices on the Supreme Court are finally willing to consider the constitutionality of a statute such as the Major Crimes Act—which has been federal law for 136 years—such review would raise a series of questions about the constitutionality of all congressional acts based on the Indian Commerce Clause. Among these questions are whether the Court’s willingness to review such acts is conditioned upon treaty promises, including promises made to the Creek Nation, which were of great importance to the majority in McGirt. It also may now be an open question whether it is inherently unconstitutional for Congress to pass legislation on matters unrelated to commerce with Tribes, regardless of prior treaties and the Supremacy Clause. An affirmative answer would render some legislation unconstitutional regardless of the form of the sovereign guarantee an individual Tribe had received in any prior treaty. In addition, many of Congress’s delegation structures, such as the one at issue in Mazurie, contemplate a tribal assumption of regulatory authority only upon receiving permission from the U.S. Department of the Interior or another federal agency official—even as these delegation structures purport to recognize the inherent sovereign authority of Tribes to govern themselves. Allowing this level of federal oversight does not seem consistent with the role that the Framers envisioned for Congress or the executive branch in the Constitution, nor is it consistent with federal promises made to so many Tribes, including the Creek Nation, that they would be forever “free to govern themselves.

A Third Way: Decolonizing the Laws of Indigenous Cultural Protection

In A Third Way, Hillary Hoffmann and Monte Mills detail the history, context, and future of the ongoing legal fight to protect indigenous cultures. At the federal level, this fight is shaped by the assumptions that led to current federal cultural protection laws, which many tribes and their allies are now reframing to better meet their cultural and sovereign priorities. At the state level, centuries of antipathy toward tribes are beginning to give way to collaborative and cooperative efforts that better reflect indigenous interests. Most critically, tribes themselves are building laws and legal structures that reflect and invigorate their own cultural values. Taken together, and evidenced by the recent worldwide support for indigenous cultural movements, events of the last decade signal a new era for indigenous cultural protection. This important work should be read by anyone interested in the legal reforms that will guide progress toward that future. Makes federal, state, and tribal cultural resource protection laws easy to understand by separating them into individual chapters and illustrating how they affect specific tribes Examines the major tribal cultural protection efforts of the 2000s, such as Dakota Access Pipeline protests and the creation of the Bears Ears National Monument Allows readers to gain a foundation in federal Indian lawhttps://scholarship.law.umt.edu/faculty_books/1010/thumbnail.jp