CHAPTER 5 A RETROSPECTIVE VIEW OF INDIAN LAW DURING THE FIRST TERM OF THE BUSH-CHENEY ADMINISTRATION

• Jurisdiction: United States

Natural Resources Development in Indian Country
(Nov 2005)
CHAPTER 5
A RETROSPECTIVE VIEW OF INDIAN LAW DURING THE FIRST TERM OF THE BUSH-CHENEY ADMINISTRATION
Thomas L. Sansonetti
Holland & Hart LLP

I. LITIGATION DECISION MAKING ON INDIAN CASES IN THE BUSH-CHENEY ADMINISTRATION

1. Players at the Department of the Interior

A. Secretary Gale Norton

B. Solicitor Sue Ellen Wooldridge (Bill Myers)

C. Office of the Solicitor, Division of Indian Affairs

D. Assistant Secretary for Indian Affairs (Neal McCaleb, Dave Anderson, Jim Cason)

2. Players at the Department of Justice

A. Attorney General Alberto Gonzales

B. Associate Attorney General Robert McCallum

C. Assistant Attorney General for Environment and Natural Resources (ENRD)

D. ENRD Section Chief for Indian Resources Craig Alexander

E. ENRD Section Chief for Natural Resources Jack Haugrud

F. ENRD Section Chief for Appellate Jim Kilborne

G. Solicitor General Paul Clement

H. Deputy Solicitor General Ed Kneedler

I. Deputy Solicitor General Tom Hungar

J. Office of Tribal Justice headed by Tracy Toulou

II. IMPORTANT CASES WHERE THE UNITED STATES REPRESENTED INDIAN TRIBES AND THEIR INTERESTS

1. Defending Tribal and Federal Interests in Water Adjudications.

During the past year, the Department of Justice's Environment and Natural Resources Division (ENRD) settled three major water rights adjudications in which the United States had asserted significant water rights claims for the benefit of tribes. Water adjudications are complex, primarily defensive cases, typically involving the rights of thousands of parties. In the Snake River Basin Adjudication (Idaho), ENRD worked with the Interior Department, the State of Idaho, and the Nez Perce Tribe to craft an historic settlement of a water rights claim. Congress ratified this settlement in the Snake River Water Rights Act, Pub. L. No. 108-447.

Similarly, ENRD worked with the Interior Department, the State of Arizona, the Gila River Indian Community, and private water users to settle the Gila Community's water claims In Re Gila River System and Source (Ariz.), which Congress ratified in the Arizona Water Settlements Act, Pub. L. No.108-451.

A third major settlement was reached in Arizona v. California, concluding a 35-year-long original Supreme Court jurisdiction case involving rights to water from the Colorado River. The settlement - which was approved by the Special Master - resolved the water rights claims of the Quechan Indian Tribe and resolved any disagreement about the location of the Tribe's Reservation boundaries in Arizona.

2. Protecting Tribal Lands.

ENRD also defends and brings suits relating to over 50 million acres of land that the United States holds in trust for tribes. To this end, IRS settled Seneca Nation v. New York (Cuba Lake) (W.D. N.Y.), an action asserting an unlawful trespass on tribal lands. In June 2005, the district court approved a consent decree proposed by the United States, New York, and the Seneca Nation, that settled a 150-year-old dispute. This was the first New York land claim to be resolved through settlement.

ENRD was less successful in two other New York land claim cases. A $250 million district court tribal verdict on behalf of the Cayuga tribe against the State of New York for violating the 1794 Non-Intercourse Act requiring Congressional approval of land acquisitions...