Beyond the Belloni Decision: Sohappy v. Smith and the Modern Era of Tribal Treaty Rights

Indian tribes and their members are leading a revived political, legal, and social movement to protect the nation’s natural resources. In doing so, tribes and their allies employ many effective strategies but core to the movement are the historic promises made to tribes by the United States through treaties. Tribes are asserting treaty-protected rights, which the United States Constitution upholds as the supreme law of the land, to defend the resources on which they and their ancestors have relied for generations. Those claims have resulted in significant legal victories, igniting a broader movement in favor of tribal sovereignty and securing a prominent and perpetual tribal presence in the movement and on the ground. Given the strength of this modern movement and the centrality of treaty rights to its success, it is hard to believe that, just two generations ago, those rights faced seemingly existential threats. Notwithstanding bedrock Supreme Court precedent from the first half of the 1900s recognizing the supremacy of Indian treaties, tribal members exercising the rights those treaties guaranteed were under attack in the Pacific Northwest and the Great Lakes, with armies of state wildlife rangers and law enforcement arresting tribal members for not following state laws and regulations. Then, in 1968, the Supreme Court cut against its earlier solicitude for tribal treaty rights by opening the door for broad state power to establish laws, rules, and regulations that could govern tribal members engaged in treaty-reserved activities. Facing escalating harassment from state authorities, the Court’s endorsement of state priorities seemed to leave little room for the meaningful exercise of treaty rights as the tribes and tribal members themselves saw fit. But, with his 1969 decision in Sohappy v. Smith, Judge Robert Belloni began to reverse the course of that time and, in doing so, opened the modern era of tribal sovereignty over natural resources. Judge Belloni’s approach to reaching that momentous decision recognized the permanence and supremacy of tribal treaties while also accounting for the ongoing exercise of state sovereignty. Rather than approach the balance of those two interests as a zero-sum proposition, however, Judge Belloni sought and provided practical guidance pursuant to which states and tribes could work together to ensure their continued coexistence. While that coexistence would demand higher burdens and more limitations on the state’s exercise of authority, Judge Belloni also had the foresight to provide a judicial forum for resolving conflicts over those burdens and limitations and urged the parties to reach cooperative agreements beyond the courtroom doors. Judge Belloni’s approach and the Sohappy decision laid the foundation for state and federal courts struggling to balance state authority and tribal treaty rights. This article traces the legacy of the Sohappy decision across litigation in the Great Lakes region, where members of the Chippewa Tribes fought to continue their time-honored and treaty-reserved practices, various states sought to regulate those activities, and judges relied on Judge Belloni’s wisdom and insight to reach sustainable solutions

Report from the Royalty Policy Committee: The Past, Present, and Future of the Royalty Policy Committee

This report was Prepared for the Rocky Mountain Mineral Law Foundation Special Institute on Federal and Indian Oil & Gas Royalty Valuation and Management: Panel: Report from the Royalty Policy Committee October 24, 2018 ~ Houston, Texashttps://scholarship.law.umt.edu/faculty_books/1008/thumbnail.jp

Current Developments in Indian Water Law and Treaty Rights: Old Promises, Recent Challenges, and the Potential for a New Future

Chapter nine of 64 Rocky Mt. Min. L. Inst. 9-1 (2018).https://scholarship.law.umt.edu/faculty_books/1009/thumbnail.jp

What Should Tribes Expect from Federal Regulations? The Bureau of Land Management\u27s Fracking Rule and the Problems with Treating Indian and Federal Lands Identically

On March 26, 2015, the Bureau of Land management (BLM) published its Final Rule regarding Hydraulic Fracturing on Federal and Indian Lands (Final Rule). Work on the Rule had begun nearly four and a half years earlier as a way to update the agency’s outdated regulatory scheme to account for new fracking technology and growing public concern over the practice and potential safety concerns related to fracking. The Final Rule amassed a number of procedural and substantive requirements for fracking operations and proposed to apply these standards uniformly to both public lands and lands held in trust by the Federal government for the benefit of Indian tribes. According to the Final Rule, such uniformity was necessary to ensure tribal lands and communities “all receive the same level of protection as provided on public lands.” In response to concerns raised during the rule-making process that such a uniform rule ignored tribal sovereignty, tribal self-determination and the Federal government’s trust responsibility to Indian tribes, the BLM expressed its view that providing Indian lands with the same substantive protections as Federal public lands was consistent with the trust responsibility and that the rule promoted tribal sovereignty by “facilitating coordination.” Furthermore, the agency noted that the rule included a provision allowing a tribe to request variance but made clear that any such variance, if approved in the BLM’s discretion, would not “adopt tribal regulations as the Federal rule.” That approach was sufficient because, according to the BLM, “[b]y recognizing tribal regulations, [the Final Rule] accords with tribal self-determination to the extent that could be expected from a rule governing hydraulic fracturing operations.” Although the merits of the Final Rule remain to be litigated, the BLM’s rule-making process and the numerous challenges to the Final Rule highlight the myriad complexities of regulating fracking on a national basis. This article provides a much-needed complement to literature analyzing regulatory responses to fracking by providing a scholarly analysis of the Final Rule within the broader context of tribal sovereignty and federal Indian law. Analyzing the BLM’s actions in light of the federal government’s tribal consultation obligations, the agency’s statutory authority, and the broader federal trust responsibility, especially as that responsibility has evolved to promote tribal self-determination, demonstrates the need to re-visit this controversial regulatory action as it applies to Indian Country

New Approaches to Energy Development in Indian Country: The Trust Relationship and Tribal Self-Determination at (Yet Another) Crossroads

Energy development in Indian country exists at the crossroads of tribal self-determination and the federal government\u27s trust responsibility. This article reviews the foundations of this crossroads, describes recent developments, and analyzes pending proposals that may enhance both tribal sovereignty and energy development in Indian country

McGirt Policy Briefs: Regulation of the Environment and Natural Resources

On July 9, 2020, the United States Supreme Court issued its decision in McGirt v. Oklahoma. Although the only actual effect of that decision was on Mr. McGirt’s state court criminal conviction, rendering it invalid in light of the continuing existence of the Muscogee (Creek) Nation’s reservation, the implications of McGirt reverberated throughout Oklahoma and the nation. By rejecting Oklahoma’s arguments that the march to statehood had resulted in the implicit disestablishment of the Creek’s reservation (and, by analogy, those of the neighboring and similarly situated Cherokee, Chickasaw, Choctaw, and Seminole Nations), Justice Gorsuch’s opinion on behalf of the Court’s majority reaffirmed that nearly all of eastern Oklahoma remains Indian Country. The governments of those Five Tribes now face the practical challenges posed by reclaiming territorial sovereignty mostly denied to them for over a century

Beyond Constitutional Frontiers: Tribal Rights, Resources, and Reform

The current era arguably poses the most complex and challenging environmental dilemmas in human history. With climate change, increasingly scarce resources, and exponentially expanding demand, traditional legal notions of standing, harm, and liability are being stretched and reshaped to accommodate a shifting set of values regarding natural resources and potentially respond to the moment. While these novel and innovative approaches are modestly reshaping the fields of natural resources and environmental law, however, the historical and time-honored claims of Indian tribes are also presenting avenues for rethinking the foundations of those areas of law. Arising both within and outside of the constitutional framework, these claims also pose the potential to usher in a new era of more responsible and sustainable environmental stewardship that innovates beyond the limiting legal regimes operating today. This paper profiles an ongoing matter that highlights this potential, Baley v. United States, currently pending before the United States Court of Appeals for the Federal Circuit. Though not yet resolved, Baley illustrates how tribal claims, based on long-standing legal principles but antithetical to the historical push to commodify and develop natural resources, may present the opportunity to rethink and reshape the how natural resources are managed going forward

Beyond a Zero-Sum Federal Trust Responsibility: Lessons from Federal Indian Energy Policy

The federal government’s trust relationship with federally- recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes and regulations devoted to the management of the development of tribal energy resources. This article provides a detailed review of Federal Indian energy policy and proposes a new path for reform that would allow for broader tribal authority and, potentially, a new conception of the federal trust responsibility