CHAPTER 10 INDIAN LAW FUNDAMENTALS FOR NATURAL RESOURCES PROJECTS
| Jurisdiction | United States |
INDIAN LAW FUNDAMENTALS FOR NATURAL RESOURCES PROJECTS
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
former Senior Counselor to the Solicitor, U.S. Department of the Interior
Albuquerque, NM
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VANESSA L. RAY-HODGE is an enrolled member of the Pueblo of Acoma and Partner in the Albuquerque office of Sonosky, Chambers, Sachse, Endreson & Perry, LLP. Ms. Ray-Hodge works in all areas of the firm's practice with a special focus in water rights and energy and economic development issues. Ms. Ray-Hodge also regularly advises and represents tribal clients on matters involving land into trust, reservation boundary issues, treaty rights, tribal jurisdiction and regulation, gaming, natural resources development, and infrastructure development. She regularly assists tribes in navigating issues related to federal environmental and regulatory compliance statutes and in working with federal agencies at the local and national level. Prior to rejoining Sonosky, Ms. Ray-Hodge served as the Senior Counselor to Solicitor Hilary Tompkins at the Department of the Interior. At Interior, Ms. Ray-Hodge advised the Solicitor on Indian Affairs issues and was integral in a multitude of decisions. Some of her key efforts included addressing the Supreme Court's decision in Carcieri v. United States, to continue to take land into trust for tribes, culminating in the Solicitor's M-Opinion 37029 (March 12, 2014); participating in settling tribal trust lawsuits, including working with the Secretary's Trust Reform Commission; advising senior Departmental officials on tribal consultation requirements, economic and natural resources development issues in Indian country, including oil and gas operations, and Indian gaming and water rights litigation and settlement issues. Ms. Ray-Hodge attended Wellesley College graduating in 2000 with a major in Anthropology. She went on to Columbia Law School graduating in 2003 with honors as a Harlan Fiske Stone Scholar. Ms. Ray-Hodge is licensed in Oregon, New Mexico and Washington D.C.
I. Background on Indian law principles.
The United States has a unique trust responsibility to Indian tribes that is grounded in treaties, executive orders and federal laws. Federal case law confirms that the trust responsibility includes fiduciary obligations for the management of trust lands and natural resources, including the duties to act with good faith and loyalty. See e.g., United States v. Mitchell, 463 U.S. 206, 225 (1983) (the "undisputed existence of a general trust relationship between the United States and the Indian people" is well established).
As a matter of federal law, Indian treaties are the "supreme law of the land" and have the same legal force and effect as federal statutes. Worcester v. Georgia, 31 U.S. 515 (1832); Skokomish Indian Tribe v. U.S., 410 F.3d 506, 512 (9th Cir. 2005) (en banc). Through treaties with the United States, Indian tribes ceded vast amounts of land in exchange for certain benefits and the reservation of rights and privileges. Indeed, in United States v. Winans, the Supreme Court observed that treaties "are not a grant of rights to the Indians, but a grant of rights from them, a reservation of those not granted." 198 U.S. 371, 381 (1905). In other words, tribes retain aboriginal rights that they did not expressly give up in treaties or agreements with the United States.
Federal responsibilities under treaties are significant because, as explained by the Supreme Court, "[i]n carrying out its treaty obligations with the Indian tribes the Government is something more than a mere contracting party . . . it has charged itself with moral obligations of the highest responsibility and trust." Seminole Nation v. United States, 316 U.S. 286, 296 (1942). And treaties can only be abrogated by Congress when it shows an express intent to do so. See, e.g., United
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States v. Dion, 476 U.S. 734, 738 (1986) ("We have required that Congress' intention to abrogate Indian treaty rights be clear and plain."); Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968) (refusing to imply that a federal statute terminated a tribe's hunting and fishing rights); United States v. Santa Fe Pac., R.R., 314 U.S. 339, 346 (1941) (congressional intent to abrogate tribal property rights must be "plain and unambiguous"). As such, federal agencies have no authority to take unilateral action that would abrogate treaty rights. See, e.g., Confederated Tribes of Umatilla Indian Reservation v. Alexander, 440 F. Supp. 553, 556 (D. Or. 1977) (declaring that the Army Corps of Engineers had no authority to construct a dam when it "would take treaty rights without proper authorization"). To the contrary, federal agencies have a duty to consider and protect treaty rights when making agency decisions. E.g., Northwest Sea Farms, Inc. v. U.S. Army Corps of Eng'rs, 931 F. Supp. 1515, 1519-20 (W.D. Wash. 1996).
Treaties have been construed by federal courts to reserve and protect a number of rights, both on- and off-reservation, such as water rights to support on-reservation activities, e.g., U.S. v. Adair, 723 F.2d 1394, 1410 (9th Cir. 1983), off-reservation hunting and fishing rights, e.g., Menominee Tribe of Indians v. United States, 391 U.S. 404, 406 (1968); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999); see also Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253 (8th Cir. 1995), and off-reservation rights to travel on public highways, Cree v. Flores, 157 F.3d 762, 769 (9th Cir. 1998) (treaty right to travel not subject to state licensing and fees); U.S. v. Smiskin, 487 F.3d 1260 (treaty right to travel precluded prosecution under Contraband Cigarette Trafficking Act, 18 U.S.C. § 2342). Off-reservation treaty rights can include commercial uses, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 678-79 (1979); Grand Traverse Band of Ottawa & Chippewa Indians v. Michigan, 141 F.3d 635, 637 (6th Cir. 1998), and their exercise is not limited to methods used at the time
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these rights were reserved. See, e.g., Grand Traverse Band of Ottawa & Chippewa Indians v. Dir. Mich. Dep't of Natural Resources, 141 F.3d 635, 639 (6th Cir. 1998) ("[T]reaties did not in any way, limit the means by which fish were to be taken from the lakes or restrict the treaty fishers to using technology that was in existence at the time of the treaty."); United States v. Michigan, 471 F. Supp. 192, 260 (W.D. Mich. 1979) ("The right may be exercised utilizing improvement in fishing techniques, methods and gear."). Given the vast array of projects occurring outside of Indian reservations or trust lands, proponents of projects with a federal nexus (as well as federal agencies) must understand and recognize that treaty rights can extend off-reservation and it is not always necessary that "the tribe have title to the land." Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F.2d 341, 352 (7th Cir. 1983).
Despite the legal foundation on which treaty rights are based, far too often federal agencies fail to recognize treaty rights when approving and permitting infrastructure projects, and courts must step in to protect these rights. See, e.g., Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988) (proposed marina enjoined because it would destroy tribe's treaty fishing rights).1 In Muckleshoot Indian Tribe, for example, a federal district court had to enjoin the Army Corps of Engineers from permitting a marina project, because the marina was to be built on a part of the Tribe's treaty fishing area. Id. at 1517. The Army Corps took the position that the Tribe could go collect "their share of fish elsewhere," but the court found this view would effect an unauthorized taking without compensation. Id.at 1515.2 Similarly, in No Oilport! v. Carter, 520 F. Supp. 334 (W.D. Wash. 1981), the federal district court found the "most troublesome of all the
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issues raised" in a siting and permitting decision for an oil pipeline to be a potential interference with the off-reservation treaty fishing rights of multiple tribes. Id. at 371. And in Northwest Sea Farms, Inc. v. U.S. Army Corps of Eng'rs, 931 F. Supp. 1515, 1519-20 (W.D. Wash. 1996), the federal district court found the Army Corps of Engineers had a duty consider treaty rights, even when these considerations were not in...
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