LITIGATION DEVELOPMENTS 1998-99

• Jurisdiction: United States

Natural Resources Development and Environmental Regulation in Indian Country
(May 1999)
CHAPTER 1A
LITIGATION DEVELOPMENTS 1998-99
James M. Grijalva ¹
Seattle University School of Law
Tacoma, Washington

A. Decisions Relating to Lands

1. Constitutional Issues

In Alves v. United States,² the Federal Circuit held that the Bureau of Land Management's (BLM) failure to prevent livestock owned by Shoshone Indians from trespassing on a neighboring non-Indian ranch was not a Fifth Amendment taking. The court found the trespasses occurred because of the omissions of third parties (the Indian livestock owners) and not BLM, and citing United States v. Fuller,³ the court held that neither plaintiff's grazing preference nor his grazing permit issued under the Taylor Grazing Act (TGA)⁴ for certain public lands were compensable property interests.

In Bear Lodge Multiple Use Ass'n v. Babbitt,⁵ a federal district court ruled that the National Park Service's voluntary "ban" on climbing Devil's Tower National Monument (Bear Lodge) during June when certain tribes conduct religious ceremonies there did not violate the Establishment Clause of the federal Constitution. The court reasoned that the ban sought to accommodate rather than promote Indian religious practices and thus had the legitimate secular purpose of removing barriers to religious worship, and that the Park Service's aspirations for complete voluntary compliance did not amount to impermissible coercion. The court also found no excessive entanglement where the Park Service had no involvement in the manner of worship, but provided only an "atmosphere more conducive to worship."

In San Carlos Apache Tribe v. Superior Court, County of Maricopa,⁶ the Arizona Supreme Court held the State Constitution invalidated two state laws enacted in 1995 that affected water rights adjudications pending since 1974. The Arizona Legislature amended the State's water laws "to simplify and expedite pending litigation" by clarifying statutory ambiguities so as to "assist all parties [to the litigation] by reducing the need for the courts

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to resolve current ambiguities." The Court invalidated both enactments finding they applied retroactively to alter the legal consequences of past events, had the potential to terminate rights already vested, and violated the separation of powers doctrine by attempting to adjudicate cases pending before the state court system.

2. Indian Country

In Alaska v. Native Village of Venetie Tribal Government,⁷ the United States Supreme Court held that 1.8 million acres of aboriginal land conveyed in fee simple to the Village under the Alaska Native Claims Settlement Act⁸ (ANCSA) was not "Indian country." The Court said ANCSA revoked the land's prior reservation status, provided no restriction on alienation or on non-Indian uses, contemplated no active federal involvement in the land, and subjected the land to state corporate law. The Court concluded that the Village's lands were not "validly set apart for the use of the Indians as such," nor were the lands under the "superintendence" of the federal government, and thus did not constitute a "dependent Indian community" under 25 U.S.C. § 1151(b).

In South Dakota v. Yankton Sioux Tribe,⁹ the United States Supreme Court held that Congress diminished the boundaries of the Yankton Sioux Reservation in 1894 when it ratified an 1892 agreement providing for cessions of land by the Tribe. The Court held that the Agreement's language that the Tribe would "code, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands," combined with the United States' promise to pay a fixed sum for such lands, created a "nearly conclusive" or "almost insurmountable" presumption that Congress intended to diminish the Reservation. The Court did not find the presumption rebutted by the Agreement's savings clause, which provided that "nothing in this agreement shall be construed to abrogate" an earlier treaty setting out the Reservation boundaries.

In Thompson v. County of Franklin,¹⁰ a New York district court invalidated the application of a country ad valorem tax on non-trust property owned by a member of the St. Regis Mohawk Indian Tribe Within the exterior boundaries of the Mohawk Reservation. Following a Second Circuit decision that the area in question was a dependent Indian community and therefore Indian country, the court found no Congressional intent authorizing state taxation of Indian country land.¹¹ The court did not

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rely on the Reservation status of the land to find it Indian country because the court concluded that agreements entered in 1824 and 1825 between the St. Regis Tribe and the State of New York diminished the Reservation boundaries despite the lack of Congressional or federal Executive participation in the agreements.

In Hanes v. Oklahoma,¹² an Oklahoma criminal appellate court upheld the conviction of a member of the Cherokee Nation for fishing in a city park in violation of state fishing regulations. The court construed the treaty creating the Cherokee Nation as having reserved for the Nation ownership in the riverbed from the riparian land (where the defendant was fishing) to the "thread" or center of the Nesho/Grand River, but held the area not to be within Indian country because it found the Nation allotted its riverbed interest when it allotted the riparian land, which was subsequently conveyed in fee simply to the City of Miami, Oklahoma.

3. Miscellaneous Land Decisions

In Native Village of Eyak v. Trawler Diane Marie, Inc.,¹³ the Ninth Circuit rejected the claims of five Alaska native villages asserting exclusive use and occupation of the natural resources of the Outer Continental Shelf adjoining the State of Alaska on the ground of unextinguished aboriginal title. The court invoked the doctrine of federal paramountcy in holding that submerged lands in the oceans surrounding the United States present unique national interests in foreign commerce, foreign relations, and national defense that preclude claims of right or title by subordinate entities like states and Indian tribes.

In United States v. Pend Orielle County Public Utility District No. 1,¹⁴ the Ninth Circuit affirmed a Washington state court's calculation of trespass damages against a utility whose dam construction flooded lands on the Kalispel Indian Reservation previously useable for grazing and agricultural purposes. The court held that it was reasonable to calculate damages by the "sharing of net benefits" approach — which considers project operating costs, the cost of the next-best alternative, the net benefits of the project that uses the tribal land, and the apportionment of those benefits among the various landowners — because it served the purposes of the Federal Power Act¹⁵ of promoting hydroelectric power, providing power at reasonable cost, and fairly compensating Indian tribes for the use of their land.

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In Apache Tribe of the Mescalero Reservation v. United States,¹⁶ the Court of Federal Claims agreed with the Mescalero Apace Tribe's allegation that the BIA had mismanaged tribal timber resources over a ten year period. The court found that BIA failed to offer for sale the full annual allowable cut provided for in applicable forest management plans, due in part to BIA's inadequate staffing and allocation of resources for timber management, and that BIA's failure caused the Tribe to lose timber revenues and other benefits that amounted to a breach of BIA's trust obligation under the federal Indian forest management statutes.

B. Decisions Relating to Natural Resources

1. Mineral Interests

In Del-Rio Drilling Programs Inc. v. United States,¹⁷ the Federal Circuit held that the Court of Federal Claims had jurisdiction under the Tucker Act¹⁸ to hear takings and breach of contract claims made by holders of federal oil and gas leases against DOI officials. In response to tribal opposition to mining under the leases, the DOI officials refused to approve the lessees' applications to use tribal surface lands for access to the subsurface minerals, and the leases expired for lack of production within the time specified. The court said the lessees could sue on a takings claim regardless of whether the legality of the government's conduct could have been challenged under the Administrative Procedure Act.¹⁹

In Southern Ute Indian Tribe v. Amoco Production Co.,²⁰ the Tenth Circuit sitting en banc reversed the lower court's dismissal of a suit by the Southern Ute Tribe against oil companies and individual oil and gas lessees who asserted property interests in coal bed methane, a gaseous element bound to hard rock coal owned by the Tribe pursuant to a federal statutory reservation in 1909 and 1910. The court attributed the lack of specific Congressional intent on the issue to the fact that methane only recently became commercially marketable through new extraction technologies, and employing the canon of construction resolving ambiguities in federal land grants in favor of the government, held that Congress' reservation of "all coal" included the present and future economic value of the solid and gaseous components of the coal.

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In Leisnoi, Inc. v. Stratman,²¹ the Ninth Circuit held that a non-Indian owner of a subsurface estate was not required to obtain permission from the surface owner, an Alaska native village, before mining sand and gravel from the site. The court reasoned that the Alaska Native Claims Settlement Act's²² provision for village consent prior to mining applied only to lands "within the boundaries" of a village, and that such boundaries should be decided by reference to evidence of current physical occupation by the village rather than historical use.

In Delgado v. Department of Interior,²³ the Tenth Circuit upheld the decision of the Secretary of the Department of the...