Review: \u27Oklahoma’s Indian New Deal\u27

Citation information for the book reviewed: Blackman, Jon S. 2013. Oklahoma\u27s Indian New Deal. Norman, OK: University of Oklahoma Press, 2013

The Doctrine of Discovery and the Elusive Definition of Indian Title

On April 15, 2011, the Lewis & Clark Law Review hosted its Spring Symposium, entitled “The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States.” While the Symposium participants agree that the doctrine of discovery should be rejected, they disagree on the impact of the discovery doctrine on native land rights in the United States. This Article examines the differing views of Indian title. Specifically, it contrasts the “limited owner” view of Indian title, under which Indian tribes retained nearly all of their proprietary rights, subject only to the government’s exclusive right of preemption, with the “limited possessor” view of Indian title, under which Indian tribes lost ownership of their lands by virtue of European discovery. The Article concludes that, although the “limited owner” view of Indian title is preferable to Indian nations, the Supreme Court has nonetheless adopted the “limited possessor” view. The Article further concludes that there is little downside to acknowledging that the Supreme Court has adopted the harsher “limited possessor” conception of Indian title, and that by doing so, opponents of the doctrine of discovery may be better positioned to secure its repudiation

Ohio Oil and Gas Litigation in the New Fracking Era

There is a new era of oil and gas exploration in Ohio: the horizontal “fracking” era. Although the hydraulic fracturing process has been utilized for decades, the recent development of horizontal drilling methods has enabled companies to extract oil and gas from the Marcellus and Utica deep shale formations. Horizontal hydraulic fracturing has substantially changed oil and gas drilling in eastern Ohio, as evident by the following statements taken from a complaint filed by landowners in Columbiana County: From 2008 through 2010, few Columbiana County landowners understood the significance of the Utica shale play. ... [M]any landowners enter[ed] into oil and gas leases in which they received less than 1% of the fair market value for the up-front Signing Bonus payments that are currently being paid in Columbiana County and without requiring appropriate lease provisions that would protect the landowners and their lands against the much greater risks and disruptions which accompany horizontal drilling. The advent of horizontal fracking also prompted Ohio to update its oil and gas statutes. On June 11, 2012, Governor John Kasich signed Senate Bill 315, which amended Revised Code (R.C.) Chapter 1509 and expanded state authority over horizontal drilling and hydraulic fracturing. Part II of this Essay summarizes recent decisions concerning the state’s regulation of oil and gas drilling and production. Part III looks at cases raising tort issues such as trespass, negligence, nuisance, and strict liability. Part IV describes a variety of actions seeking to invalidate, terminate, and interpret leases. Part V examines cases seeking to declare minerals abandoned and reunited with the surface estate

Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights

The backstory on the court decision that defined and limited American Indian property rights. The U.S. Supreme Court ruling in Johnson v. McIntosh established the basic principles that govern American Indian property rights to this day. In the case, more than one Anglo-American purchaser claimed title to the same land in what is now southern Illinois. The Piankeshaw Indians had deeded the land twice—once to speculators in 1775, and again, thirty years later, to the United States by treaty. The Court decided in favor of William McIntosh, who had bought the land from the U.S. government. Writing for the majority, Chief Justice John Marshall declared that the “discovery” of America had given “exclusive title to those who made it”— namely, the European colonizers. According to Johnson, the Piankeshaws did not own what they thought was their land. Indeed, no Indian tribe did. Blake A. Watson’s examination of Johnson v. McIntosh and its impact offers a comprehensive historical and legal overview of Native land rights since the European discovery of the New World. Watson sets the case in rich historical context. After tracing Anglo-American views of Native land rights to their European roots, Watson explains how speculative ventures in Native lands affected not only Indian peoples themselves but the causes and outcomes of the French and Indian War, the American Revolution, and ratification of the Articles of Confederation. He then focuses on the transactions at issue in Johnson between the Illinois and Piankeshaw Indians, who sold their homelands, and the future shareholders of the United Illinois and Wabash Land Companies. The final chapters highlight the historical legacy of Johnson v. McIntosh for federal policy with regard to Indian lands. Taught to first-year law students as the root of title for real property in the United States, the case has also been condemned by the United Nations and others as a Eurocentric justification for the subjugation of the Indians. Watson argues that the United States should formally repudiate the discovery doctrine set forth in Johnson v. McIntosh. The thorough backstory and analysis in this book will deepen our understanding of one of the most important cases in both federal Indian law and in American property law.https://ecommons.udayton.edu/books/1011/thumbnail.jp

Liberal Construction of CERCLA under the Remedial Purpose Canon: Have the Lower Courts Taken a Good Thing Too Far?

This article examines the use of the remedial purpose canon of statutory construction in connection with the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), otherwise known as the Superfund Act. The article also assesses scholarly criticisms of the remedial purpose canon

Is Fracking An Inflammatory Word?

Hydraulic fracturing is a method of oil and gas extraction. It involves the pumping of a mixture of proppants, chemicals, and large amounts of water into wells to exert pressure and fracture rock formations, thereby allowing otherwise “trapped” gas and oil to flow more freely. See Railroad Commission of Texas v. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 621 (Tex. 2011) (describing the “fracing” process). With the development of horizontal drilling and more effective lubricants, it is now possible to remove “unconventional” sources of oil and gas located in shale and other dense substrata. Positive effects include lower fuel costs and greater energy independence. Negative effects include air and water contamination, adverse impacts on water supplies and roads, noise concerns, and a possible connection to earthquakes

Indian Gambling in Ohio: What are the Odds?

This article describes the options available to Indian groups and recognized Indian tribes to establish off-reservation gaming operations pursuant to the Indian Gaming Regulatory Act

The Curious Case of Disappearing Federal Jurisdiction over Federal Enforcement of Federal Law: A Vehicle for Reassessment of the Tribal Exhaustion/Abstention Doctrine

This article describes the tribal exhaustion/abstention doctrine set forth in National Farmers Union Ins. Companies v. Crow Tribe, 471 U.S. 845 (1985) and Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987)

Ohio Oil and Gas Litigation in the New Fracking Era

There is a new era of oil and gas exploration in Ohio: the horizontal “fracking” era. Although the hydraulic fracturing process has been utilized for decades, the recent development of horizontal drilling methods has enabled companies to extract oil and gas from the Marcellus and Utica deep shale formations. Horizontal hydraulic fracturing has substantially changed oil and gas drilling in eastern Ohio, as evident by the following statements taken from a complaint filed by landowners in Columbiana County: From 2008 through 2010, few Columbiana County landowners understood the significance of the Utica shale play. ... [M]any landowners enter[ed] into oil and gas leases in which they received less than 1% of the fair market value for the up-front Signing Bonus payments that are currently being paid in Columbiana County and without requiring appropriate lease provisions that would protect the landowners and their lands against the much greater risks and disruptions which accompany horizontal drilling. The advent of horizontal fracking also prompted Ohio to update its oil and gas statutes. On June 11, 2012, Governor John Kasich signed Senate Bill 315, which amended Revised Code (R.C.) Chapter 1509 and expanded state authority over horizontal drilling and hydraulic fracturing. Part II of this Essay summarizes recent decisions concerning the state’s regulation of oil and gas drilling and production. Part III looks at cases raising tort issues such as trespass, negligence, nuisance, and strict liability. Part IV describes a variety of actions seeking to invalidate, terminate, and interpret leases. Part V examines cases seeking to declare minerals abandoned and reunited with the surface estate

Buying West Florida from the Indians: the Forbes Purchase and Mitchel v. United States (1835)

This article takes an in-depth look at Mitchel v. United States. In order to place the Forbes Purchase in historical context, Part I provides an overview of European and American control of Florida. Part II details the events that led to the sale by the Creek and Seminole Indians of nearly a million and a half acres in 1804-1806 and 1810-1811. Part III describes the efforts of the purchasers and subsequent grantees to obtain confirmation of the Forbes Purchase. Part IV details the decisions in the Mitchel litigation. The purchase is compared in Part V to other transfers of Indian lands to private individuals, including the sales by the Illinois and Piankeshaw Indians of their homelands in 1773 and 1775. What distinguishes Mitchel from Johnson is the fact that the Spanish government both approved and confirmed the Forbes Purchase. Finally, I explain in Part VI why I disagree with scholars who argue that Mitchel rejects the Johnson doctrine. Rather than embrace Marshall’s views of the discovery doctrine set forth in Worcester, the Supreme Court in Mitchel endorsed and applied the Johnson discovery rule