Chapter 6 The Basics of Tribal Sovereignty and the Implications for Natural Resources and Energy Development

• Jurisdiction: United States

Chapter 6 The Basics of Tribal Sovereignty and the Implications for Natural Resources and Energy Development
Monte Mills University of Montana Law School Missoula, MT

MONTE MILLS is a Professor and Co-Director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana. He teaches a variety of courses, including Federal Indian Law; Race, Racism, and American Law; and Employment Law, along with other classes focused on Indian and tribal law-related topics. He also works with clinical students on a range of legal matters in the Margery Hunter Brown Indian Law Clinic. Monte's research and writing focuses on the intersection of Federal Indian Law, Tribal sovereignty, and natural resources as well as race and racism in the law and legal education. Recently, along with Prof. Hillary Hoffmann (Vermont Law School), Monte authored A Third Way: Decolonizing the Laws of Indigenous Cultural Protection, which was published by Cambridge University Press in July 2020. Monte's written work has also appeared in Environmental Law, High Country News, the American Indian Law Journal, the Public Land and Resources Law Review, and The Conversation, among other forums. Prior to joining the faculty at the Alexander Blewett III School of Law at the University of Montana, Monte was the Director of the Legal Department for the Southern Ute Indian Tribe in Colorado, an in-house counsel department that he helped organize and implement in 2005 following completion of a unique two-year in-house attorney training program. As Director of the Tribe's Legal Department, Monte represented and counseled the Tribe on a broad array of issues, including litigation in tribal, state and federal courts, legislative matters before the Colorado General Assembly and the United States Congress, and internal tribal matters such as contracting, code-drafting, and gaming issues.

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This outline provides a basic overview of the fundamental concepts related to the sovereignty of federally-recognized Indian tribes and issues related to the management and development of natural resources. It is not intended to be legal advice and, given the inherently complex and often case-by-case specificity of these issues, is not intended to cover every scenario.

I. Boiling down the Basics.

The most basic and important concepts to remember are the following:

A. Tribes and tribal governments possess inherent sovereign rights and authorities, subject to limitation only upon a clear statement of such limits by Congress.
B. The government-to-government relationship between tribes and the federal government, a trust relationship, is exclusive of state authority and is a relationship in which the federal government exercises plenary power.
C. Although the general and historical rule is that state laws do not apply in Indian Country,¹ more recent Congressional acts and Supreme Court decisions have created exceptions.

These concepts have been recognized and developed in American law since some of the earliest decisions of the U.S. Supreme Court, including the Marshall Trilogy (after then Chief Justice John Marshall): Johnson v. M'Intosh;² Cherokee Nation v. Georgia;³ ; and Worcester v. Georgia!⁴ The subsequent centuries have resulted in many additional developments but the foundational nature of these concepts and the resulting eras of federal Indian law and policy are important to keep in mind when addressing any Indian law issue.

II. History.⁵

History plays an important role in understanding federal Indian law and issues relevant to tribal sovereignty and natural resources. First, as a general matter, the weight of history and the passage of time since many of the events that remain relevant to the development of modern Indian law necessarily affects the field itself. Second, at a more discrete level, specific historical events, policy

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eras, and tribal events can drastically affect the way in which Federal Indian Law applies in a particular instance. For example, the location of a particular Indian reservation or the placement of a specific tribe upon said reservation are often the product of historical events, coincidences, and developments that may be specific to that region or that tribe. Furthermore, the legal history associated with those specific events or developments may illuminate unique or particular issues, rights, or responsibilities relevant only within that particular reservation or for that specific tribe. Therefore, while federal Indian law is often viewed as an amorphous body of law applicable to all Native Nations, the specific histories of each such Nation requires careful attention from attorneys and advocates. In addition, for almost every tribe, the past and its lessons remain closely tied to the day-to-day decision-making and determinations that drive the development of Tribal Law.

Although it is impossible to organize over 250 years of interactions between the United States and Indigenous peoples into neat and discrete categories,⁶ the following presents a brief overview of the general eras of federal Indian law and policy, which can help organize an approach to understanding general historical trends in this field.

1. Euro-Colonial Roots and the Marshall Trilogy.

The incorporation of European legal traditions into American legal doctrine resulted in the rooting of federal Indian law in the law of the medieval crusades, Papal doctrines, Spanish conquest, and British Imperial policies up until the Revolutionary War and the founding of America. Those legal traditions relied upon the recognition of tribes as governments and the use of treaties to establish government-to government relationships. Contrarily, however, European colonists also imported the notion of conquest and its accordant legal rights, including the idea that conquest of inferior indigenous peoples grants the conqueror superior rights of title and ownership.⁷ This colonialist and racist notion underpinned and promoted the conception of Indians as savage or "Wild Beasts of the Forest" who would "retire" to the wilderness as European or American settlers advanced and purchased their territories from them.⁸

The resolution of the fundamental conflict between tribes as sovereigns and European legal doctrines of conquest and discovery and between the federal and state governments over the role and place of Indian tribes in the federal system, began in earnest with the Supreme Court's 1823 decision in Johnson v. M'Intosh.⁹ That decision, the first of the so-called Marshall Trilogy that form the basis of federal Indian law,¹⁰ defined the property rights of tribes in light of the colonial doctrines of discovery and conquest, ultimately determining that though the tribes retained the right of possession and use of the land, the United States, as successors in interest to Britain's colonial rule and by virtue of the European legal doctrines described above, acquired the "absolute ultimate title subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive

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right of acquiring."¹¹ The Johnson decision cemented the doctrine of discovery into the foundations of Indian law and hinted at the forthcoming decisions regarding the status of tribes vis-à-vis the constitution, federal, and state governments.

Those subsequent decisions, issued in 1831 and 1832, stemmed from the ongoing conflict between Georgia and the federal government over the presence of the Cherokee Nation within the boundaries of the State of Georgia. Unable to overcome the federal government's treaties with the Cherokee, Georgia simply ignored the rights and protections guaranteed therein and sought to take over Cherokee territory.¹² In answering the question of whether the Supreme Court could exercise jurisdiction over the original action brought by the Cherokee Nation to stop Georgia's efforts, Chief Justice Marshall defined the Cherokee Nation as a "domestic, dependent nation,"¹³ a description of tribal status that remains relevant to present.¹⁴ Marshall also noted that, by virtue of the language of treaties like the Treaty of Hopewell, the Cherokee were under the protection of the United States and were therefore "in a state pupilage" and like a "ward to [the United States as] guardian."¹⁵ While rooted in treaty language of protection, Marshall's conception of tribes also carried the specter of inferiority and savagery. Notwithstanding its colonial roots, however, the conception of tribes as wards to the federal guardian formed the basis of the federal governments trust relationship with and responsibility to Indian tribes ever since Marshall's opinion.¹⁶

In the term immediately following the Cherokee Nation decision, the Court again considered the Nation's conflict with the State of Georgia, this time getting to the merits of whether Georgia could apply its laws within Cherokee territory. In Worcester v. Georgia,¹⁷ Chief Justice Marshall again relied upon the treaties by and between the federal government and the Cherokee Nation to determine that the "whole intercourse between the United States and this nation, is by our constitution and laws, vested in the government of the United States."¹⁸ Thus, Georgia law could have no effect within the Cherokee's territory because it would interfere with the terms of those treaties, which were recognized by the constitution as the supreme law of the land.¹⁹

Marshall's insulation of the Cherokee Nation from the reach of Georgia's authority protected the tribe's "distinct community,"²⁰ preserved the sanctity of treaties between tribes and the federal government, and, along with his prior decisions in Johnson and Cherokee Nation, set the course for Federal Indian Law to develop. These decisions announced the fundamental tenets of the field — tribal sovereignty, the federal-tribal trust relationship, and the importance of treaties. But, while this first era of Federal Indian Law had important...