Sovereignty and Subsistence: Native Self-Government and Rights to Hunt, Fish, and Gather After ANCSA

The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in the settlement was the failure to provide statutory protections for the aboriginal hunting, fishing, and gathering rights extinguished by ANCSA. Moreover, while ANCSA did not directly address Alaska Native tribal status or jurisdiction, the Supreme Court interpreted the Act to terminate the Indian country status of ANCSA land. Subsequently, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) was adopted in 1980 to provide a subsistence priority for rural Alaska residents, but the approach contemplated in Title VIII failed due to the State of Alaska’s unwillingness to participate. On the self-government front, state and federal courts have joined the federal Executive Branch and Congress in recognizing that Alaska Native tribes have the same legal status as other federally recognized tribes in the lower forty-eight states. The Obama Administration recently changed its regulations to allow land to be taken in trust for Alaska Native tribes, and thus be considered Indian country subject to tribal jurisdiction, and generally precluding most state authority. This article explains these developments and offers suggestions for a legal and policy path forward

Indian Water Rights: Litigation and Settlements

This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights Act

Indian Water Rights and the Federal Trust Responsibility

Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modem litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non- Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history of Indian water rights and concludes that the traditional practicably irrigable acreage quantification standard should be adhered to by the courts—supplemented by the homeland theory that awards water to fulfill all purposes behind creation of a reservation. The author also argues that the Executive Branch should adopt firm budgetary policies that promote settlements as an Administration priority in order to ameliorate historic inequities in western water development

Indian Water Rights: Litigation and Settlements

This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights Act

Indian Water Rights and the Federal Trust Responsibility

Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modem litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non- Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history of Indian water rights and concludes that the traditional practicably irrigable acreage quantification standard should be adhered to by the courts—supplemented by the homeland theory that awards water to fulfill all purposes behind creation of a reservation. The author also argues that the Executive Branch should adopt firm budgetary policies that promote settlements as an Administration priority in order to ameliorate historic inequities in western water development

Federal Treaty and Trust Obligations, and Ocean Acidification

Ocean acidification will have profound effects on the entire human population and natural resources that depend in any way upon Earth’s oceans and lakes. In turn, those effects will be even greater, and potentially catastrophic, for indigenous populations who rely on the seas for physical, cultural, and spiritual sustenance. While most research on carbon dioxide absorption from the atmosphere has focused on oceans and the resulting acidification, many believe that acidification levels also will also increase in the Great Lakes. Indian tribes in the Pacific Northwest and the Great Lakes regions share reliance on marine and freshwater resources, and many treaties contain provisions reserving off-reservation access to these resources. These treaties have consistently been interpreted as the Indians would have understood them, with any ambiguities interpreted in favor of the tribes. While many tribes have fought off incursions on their territories and treaty rights in particular cases, the threats from greenhouse gases and ocean acidification call for even greater efforts due to extensive tribal rights in affected waters and resources. This battle also requires a major effort on the part of the United States government. This essay describes the nature of Indian treaty rights and the federal-tribal relationship, shows how the United States has sometimes acted to protect Indian treaty rights, and argues that the United States must do more to protect and enhance environmental conditions that are causing ocean acidification. Tribal property rights secured by treaty, and the federal government’s trust responsibility require serious protective action by the United States to stop the increase in ocean and freshwater acidification. Part II describes the federal-tribal relationship and the parameters of the federal trust responsibility. Part III reviews legal authority supporting federal litigation and administrative actions to protect Indian treaty rights to hunt, fish, and gather and to the habitat upon which those rights depend. Part IV concludes the piece with a normative discussion of why the federal trust responsibility requires the robust use of protective, proactive, and ameliorative efforts outlined by others in this issue. In sum, it will take a broader view of the trust responsibility and more aggressive action by policy makers to force limitations on greenhouse gas emissions and stem the harm from increasing ocean acidification

Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country

In the seminal Indian water rights case, Winters v. United Slates (1908), the Court posed this question: The Indians had command of the lands and the waters-command of all their beneficial use, whether kept for hunting, \u27and grazing roving herds of stock,\u27 or turned to agriculture and the arts of civilization. Did they give up all this? The Court\u27s answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to protect their water resources from loss to non-Indian use, they also deploy their inherent governmental authority through tribal water codes and the federal Clean Water Act to protect water quality. As competition for water resources grows and development pressures adversely affect water quality, Indian Nations and their neighbors face new challenges in defining Indian water rights for instream habitat protection and traditional consumptive uses. This article reviews the nature of Indian water rights—both on and off reservations—and the use of tribal sovereignty to protect those rights in terms of quantity and quality. The case law in this arena is sparse, and the ability to predict an all-or-nothing litigated outcome is correspondingly limited. Under these circumstances, parties would be best off to default to the usual presumptions recognizing inherent tribal authority over on reservation water resources and state authority outside of Indian country. From this jurisdictional baseline, tribes, states and the United States should cooperate to ensure that a given regulatory regime protects water quality and access to water

Criminal Jurisdiction, Tribal Courts and Public Defenders

The impetus for this presentation is the establishment of the Tribal Court Criminal Defense Clinic by the University of Washington School of Law and its Native American Law Center. The Clinic is the public defender for the Tulalip Tribes of Washington. Eight students take the year long clinic and after ten weeks of preparation are appointed as counsel to defendants in tribal court prosecutions under the supervision of the clinic director. The joint effort of the Tribes and the School of Law is a direct product of the Indian self-determination era and reflects the Tribes\u27 decision to increase their law enforcement and tribal court capacity. The hope is to develop a defender system as part of a justice system that is not just focused solely on administering a criminal code and trying cases, but instead is part of the growing effort to deal with the underlying causes of criminal activity. This essay outlines: basic principles of federal Indian law and criminal jurisdiction within Indian country; the history of the right to counsel in criminal matters in general and within tribal courts; and, the defender program operated by the School of Law at the Tulalip Reservation