Law of Indigenous Peoples Paper Topic: Sean McKenzie

Examining Predatory Border Town Vehicle Sales from a Navajo Common Law Perspective

By Sean McKenzie


            The Navajo Nation Human Rights Commission (“Commission”) has found that certain car dealerships located in towns surrounding the Navajo Nation “prey[ ] upon” Navajo consumers.[1] Predatory car sales practices include unethical sales practices designed to deceive consumers into signing unfair vehicle contracts.[2]  My research examined predatory border town car sales from a Navajo common law perspective. It found that efforts to address predatory car sales outside Navajo jurisdiction[3] should take into account Navajo common law values because these values may influence the car-buying experience of Navajo consumers. In particular, Navajo common law values can conflict with the values of car dealerships, making some Navajo consumers more vulnerable to predatory car sales practices.


            Western economic values emphasize individual economic success.[4] These Western economic models perceive the world as a competition between individuals for scarce resources.[5] Accordingly, Western economic models emphasize individual freedom and autonomy.[6] “The ‘self-made’ man is a hero.”[7] This individual-centric view influences Western law’s view of commerce.[8] Specifically, Western law tends to view commerce as made up of discrete transactions between individuals.[9] Western economic values therefore emphasize each party’s “freedom to contract”—the right of each party make a deal maximizing its own self-interest—even if such a deal negatively impacts the other party or community-at-large. 

            By contrast, Navajo fundamental law emphasizes harmonious relationships and healthy communities.[10] These values are reflected in the fundamental law doctrines of hózhók’é and k’éi.[11] Two important common law promissory values in the context of buyer-seller transactions flow from Navajo fundamental law’s emphasis on harmonious relationships and healthy communities: (1) the importance of dialogue, and (2) the sacredness of words. First, Navajo common law emphasizes that dialogue between parties to a transaction should be respectful, transparent, and honest because such dialogue preserves harmonious relationships.[12] Second, Navajo common law recognizes that “[w]ords are sacred and never frivolous in Navajo thinking[.]”[13] Accordingly, promises are sacred. As a result, some Navajo consumers, perhaps especially elders, may presume dealership employees will engage in transparent dialogue and honor oral promises because Navajo common law emphasizes respectful, transparent dialogue and the sacredness of words. In reality, border town dealerships are notorious for using words loosely to deceive consumers. For example, dealerships often make misleading or false oral statements to Navajo consumers regarding the condition of a vehicle, the terms of the warranty, and the loan package.

Limitations and Methodology

            Several methodological limitations affected this analysis. Most importantly, the author, an Anglo male who grew up in the Navajo Nation border town of Gallup, New Mexico, has no lived experience of Navajo common law. This analysis therefore relied exclusively on written materials to make hypotheses about how Navajo common law values impact the car-buying experience of Navajo consumer. While most of these written materials are primary sources, such as Navajo Supreme Court decisions, the author nonetheless interprets these texts through the eyes of an outsider. 

[1] Navajo Nation Human Rights Comm’n, Assessing Abuse of Navajo Customers When Purchasing Vehicles in Border Towns, 19 (Mar. 7, 2014),

[2] Id. at 13-18.

[3] The Navajo Nation has acted aggressively to combat predatory car sales within its border, including  passing the Navajo Consumer Protection Act. 

[4] See generally Adam Smith, The Wealth of Nations (1776); see also Valerie Phillips, Parallel Worlds: A Sideways Approach to Promoting Indigenous – Ionindigenous Trade and Sustainable Development 4 (October 4, 2007) (unpublished manuscript) (available at 

[5] Id.

[6] Michael D. Lieder, Navajo Dispute Resolution and Promissory Obligations: Continuity and Change in the Largest Native American Nation, 18 Am. Indian L. Rev. 1, 57-58 (1993),

[7] Id. 

[8] Id.

[9] Id.

[10] Austin, supra note 69, at 40-41.

[11] Id.

[12] Green Tree Servicing, LLC v. Duncan, 7 Am. Tribal Law 633 (Nav. Sup. Ct., 2008).

[13] Kesoli v. Anderson Sec. Agency, 6 Am. Tribal Law 692, 696, 8 Nav. R. 724, 724 (Nav. Sup. Ct. 2005).


Law of Indigenous Peoples Paper Topic: Kristen Polk

Last semester in Professor Zuni Cruz’ Law of Indigenous Peoples course, I chose to fulfill my writing seminar requirement by researching an issue of great importance to my tribe: protection of sacred Apache holy sites. My paper, Indigenous Resistance: The San Carlos Apache Fight to Protect Sacred Holy Sites, discusses Apache resistance to the desecration of sacred sites as a modern-day embodiment of the indigenous legal tradition of the San Carlos Apaches. It illustrates the resiliency of the San Carlos Apaches, that despite a history of forced removal and assimilation, San Carlos Apaches are fighting for our inherent right to be Apache by utilizing the indigenous legal tradition. 

In the paper, I explore the San Carlos Apache fight to protect sacred holy sites and identify traditional Apache beliefs as the legal tradition of the San Carlos Apaches. Part I discusses the historical background, relating to creation of the San Carlos Apache Tribe, that is necessary to understand the complexities of legal protection for Apache Holy sites. Part II broadly identifies the traditional beliefs of the San Carlos Apaches as the chthonic law of the San Carlos Apache Tribe. Part III examines the San Carlos Apache resistance to the attempted desecration of two sacred sites, Mt. Graham and Oak Flat, as evidence of a modern-day survival of the indigenous legal tradition of the San Carlos Apache Tribe. 

In researching the issues, largely due to the nature of the work, my methodology consisted of qualitative methods such as interviews, literature reviews, and legal research. I began with informal interviews with San Carlos Apache elders within the reservation community in order to understand the history and importance of these sacred sites from the Apache perspective. Additionally, I consulted various journal articles, legislative documents, court cases, and newspaper articles. 

In summation, I chose to pursue this topic as a means of learning more about the legal issues surrounding my tribe’s efforts to protect sacred places and bring light to the battle that the San Carlos Apaches are fighting in order to preserve our inherent right to practice our Apache religion within ancestral lands. Furthermore, as a Native American law student, I found this experience of being able to research my own tribe’s legal issues profoundly important. For me, the experience highlighted the importance of having Native American voices as legal advocates for issues that are important to our communities and the future of our people. 


Kristen Polk is a second-year law student at the University of New Mexico School of Law. She is a member of the San Carlos Apache Tribe and endeavors to pursue a career practicing Indian and Tribal law. 


American Indian Day at the New Mexico State Legislature

“Honoring and Protecting Mother Earth for Future Generations”

March 3, 2020-Albuquerque, New Mexico

Honoring the past and learning how to improve the future is central to indigenous philosophy. New Mexico State Representative Derrick Lente discussed the importance of oral history and honoring stories from time immemorial. Lente shared his own story. He reminisced about his childhood and how his grandparents’ instilled values that he maintains in his daily life. His grandparents taught him to respect his ancestors, respect his elders, and to understand the importance of living in harmony with the land. Lente attributed his unique experience to finding his voice. He realized that he wanted to work to represent his community’s values and philosophy and that is what led him to run for office. He closed his remarks by reminding the audience to think about what will be left to the next generations and how it is our responsibility to work to protect them. 

Governor Michelle Lujan Grisham speaking at the round house when she declared American Indian Day.

The celebration at the roundhouse brought students from across the state to learn about the importance of civic engagement. State senators and representatives emphasized the importance of recognizing young leaders and included them at the center of the discussion. Legislators introduced youth leaders on the house and senate floors while sharing brief biographies that included their meaningful contributions toward their respective communities. Students actively listened to all the presenters and remained engaged as they observed traditional dancers and prayers. Witnessing youth from all walks of life was a highlight of the celebration because they are a symbol of hope. As echoed by the various speakers, in order to create a better future for our youth, we must collaborate with them because they will be our future leaders.


American Indian Day is particularly significant to the Tribal Law Journal because it aligns with the journal’s philosophy and values. The Tribal Law Journal was founded in 1998 for the purpose of promoting indigenous self-determination and with the goal of creating a platform to discuss internal law of indigenous nations. Many students that serve on the Tribal Law Journal editorial board and staff are members of indigenous tribes. One of those students is Ahtza Chavez. Ahtza is a member of the Diné Nation and Kewa Pueblo (formally Santo Domingo Pueblo). Ahtza graciously invited us to join her in attending the Legislative Community Luncheon, which was hosted by the Santa Fe Indian School and the New Mexico Indian Affairs Department. The luncheon was held in the Everett F. Chavez Pueblo Pavilion located at the Santa Fe Indian School Campus. The late Everett F. Chavez was a three-time Governor of the Kewa Pueblo and was a former superintendent of the Santa Fe Indian School. Governor Chavez is also Ahtza’s father. 

Everette Chavez Pueblo Pavillon at the Santa Fe Indian School.

Ahtza entered the pavilion named after her father beaming with pride. From the moment she walked in, she was greeted by leaders of her tribe and members of the legislature. She then directed us to meet community members who would be serving the meal. They all welcomed us and served us delicious mounds of food that reminded me of home. The food at the luncheon consisted of traditional staples like posole, red chile and pork, potato salad, and beans. Ahtza quickly explained that the best way to eat the red chile and pork was to put potato salad in it. We joked and laughed about our own unique spin on these staples as we savored our first bites. The program consisted of inspirational speeches that highlighted the Santo Domingo Early Childhood Learning Center. The program also honored the late senators John Pinto and Carlos Cisneros for all their contributions to the state. As we honored the senators in the pavilion dedicated to the late Governor Chavez, I reflected on how the theme was woven into each part of our day. A wise man once told me that in order to achieve success, one must strive to positively impact seven generations. The legacy each of these leaders is destined to meet this definition of success because their work continues to inspire future generations. As we left the pavilion, I felted inspired to witness my friend Ahtza transition as a leader of her people. 

American Indian Day at the state legislature honors the many contributions of Native American leaders across the state. It honors the rich history, culture and philosophy of living in harmony with the environment. The day was a reminder that we are all connected and how we are stronger if we work in unison toward the success of our community. Success means protecting our land, oral history, languages, and providing opportunities for generations to come. The legacy of our ancestors, leaders, and community is a gift of knowledge to carry on in our daily lives. 

Brief Biography of blog contributor Jessica Martinez Jessica is a second-year law student at UNM School of Law. She is a member of the Chihene Nde Nation of New Mexico. The Chi’Nde are descendants of Apache people throughout Southern and Central New Mexico. The tribe is not federally recognized but is dedicated to the preservation of their language, culture, traditions, including protecting historic and sacred sites. 



President Fawn Sharp’s State of Indian Nations Address

By: Max Spivak

On February 10, 2020, in Washington, D.C., Fawn Sharp (Quinault), the 23rd President of the National Congress of American Indians (NCAI), delivered the State of Indian Nations Address. President Sharp, who is also the current President of the Quinault Indian Nation in Taholah, Washington, is the third woman to be NCAI President and the first to deliver the Address. After a brief welcoming note on behalf of the 574 federally-recognized[1] and dozens of state-recognized tribal nations, President Sharp outlined her duties as the leader of NCAI: (1) “to share Indian Country’s story of perseverance and resurgence with the world”; (2) “to convey with absolute clarity Indian Country’s expectations of the United States government”; and (3) “to cast a light on the immense power and proven wisdom of tribal nations governing their own lands and affairs, solving difficult challenges, and forging brighter futures on their own terms.”

President Sharp named several Quinault matriarchs who led the way and strengthened her journey: Beatrice Black, a well-known basket weaver; Elizabeth Cole, who was, among other leadership roles, the former Director of the Quinault Housing Authority; Hazel Tekie Rosander, a respected elder; Tiny Capoeman; and Ramona Bennett, a former Puyallup Nation Chairwoman and elder.[2]

President Sharp also referenced her strength as drawn from the Creator; from the advice of fellow tribal leaders; from “spiritual nourishment and life lessons of the Canoe Journeys”; from “the inspiration, passion, and ingenuity of brilliant Native youth;” and from the ancestral teachings of elders. She noted that the State of Indian Nations Address is for all Americans, not just tribal leaders and citizens, but especially for those “disenfranchised and rendered hopeless by racial injustice, economic inequality, and the rapid decay of [the] American political system.” To find answers for such grand concerns, President Sharp offered that one shall not look any further than tribal nations. With that, she proclaimed the “undeniable truth [that] the State of Indian Nations is strong!” 

President Sharp then stated that self-governance is the greatest Indigenous core value as it relates to tribal nations’ inalienable right to “steward and draw nourishment from [the] traditional homelands”; “cultivate the extraordinary potential of [the] youth”; “develop thriving economies that provide opportunity for all of [the] people”; and “manage [their] own affairs and control [their] own destinies.” President Sharp noted that many Americans and many policymakers do not understand tribal nations’ unique political status and rights, but that with mechanisms like the State of Indian Nations Address, more Americans can learn the truth about Indian Country and turn to tribal nations for inspiration, direction, and solutions to common challenges. 

President Sharp invoked the ideas and practices of tribal sovereignty and self-determination. She highlighted that the threats to such principles come from “every branch and every corner of the federal and state governments.” She said that the threats “stem from an ignorance—or hostility toward—the unique political status of tribal nations as a vital part of the original American family of governments, and the federal government’s everlasting trust and treaty obligations to tribal nations.”

President Sharp highlighted positive developments including the “Esther Martinez Native American Languages Program Reauthorization Act and the FUTURE Act which permanently extends mandatory funding for tribal colleges, universities, and related academic institutions.” But, she continued, there are major difficulties still facing Native communities, like the gaps in the Violence Against Women Act (VAWA) wherein Congress refuses “to expand tribal authority to administer justice for victims of sexual violence, child abuse, stalking, and human trafficking . . .” Moreover, she referenced “the current Administration’s wanton interference with tribal nations’ right to restore [their] traditional homelands, which has created an arbitrary system of ‘haves’ and ‘have-nots’ among tribal nations seeking to place land into trust.” She discussed the assaults on the Indian Child Welfare Act (ICWA) by special interest groups and a recent federal court ruling placing the “vital law in real jeopardy.” President Sharp called the competition among tribal nations for federal grant programs “a gross violation of the federal government’s trust and treaty responsibilities,” and expressed disappointment that despite years of NCAI efforts, “Congress left Indian Country completely out of the 2017 Tax Cuts and Jobs Act.” 

President Sharp laid out four more instances of Congress’ failure to pass legislation: that (1) “reaffirms the inherent right of tribal governments to regulate labor”; (2) “permanently reauthorize[s] the remarkably effective Special Diabetes Program for Indians”; (3) reauthorizes the Native American Housing and Self Determination Act to curb Indian Country’s severe housing shortages”; and (4) “takes long-overdue steps to curtail the Missing and Murdered Indigenous Women epidemic that is ravaging so many [Native] communities and families.” 

Near the end of her comprehensive review, President Sharp posited that the “rapidly accelerating impacts of climate change” are the most destructive outcomes of the Trump Administration and Congress’ failure to act. Importantly, however, President Sharp ensured that her address did not end a negative note, and she listed several innovations and accomplishments from around Indian Country: the Pueblo of Isleta’s partnership with New Mexico to reduce arrest and incarceration rates among Pueblo youth; the Miami Tribe of Oklahoma’s “Miami Awakening” program which “is bringing back the tribe’s language from the brink of extinction”; and the Coeur d’Alene Tribe of Idaho’s “Education Pipeline” approach “which has dramatically decreased the Tribe’s high school dropout rate and increased the percentage of tribal members pursuing college degrees.” 

If only the federal government would hold up their end of the agreements with tribal nations, President Sharp lamented. As such, she, on behalf of Indian Country, issued “a new standard of accountability to the federal government to uphold tribal sovereignty and treaty rights in all of the ways for which it has been—and always will be—legally and morally responsible.” She called for truth and reconciliation with full acknowledgement of the United States’ past transgressions, tribal governmental parity in every policy decision, and “implementing and not actively impairing legislation that empowers tribal self-determination and self-governance.” Directing such action at the several policymakers at the address, President Sharp offered explicit examples of what living up to such an accountability standard looks like: appropriating funds to the Bureau of Indian Affairs (BIA) and Indian Health Service (IHS) before delays or disruptions in the Congressional budget process; a federal land policy based on free, prior, and informed consent of tribal governments for projects impacting land, communities, resources, and ceremonies; protecting sacred sites from exploitation and desecration; expanding tribal authority under VAWA to protect Native women; and combatting opposition to ICWA. 

She continued listing routes for accountability by the U.S. government: “fixing the land-into-trust debate by finally passing a clean Carcieri fix”; “recommitting to the Paris Accord and restoring science to its proper place at the heart of its environmental policy”; “empower[ing] the role of tribal nations in domestic and global climate action . . . from the Nuiqsut in Alaska to the Menominee in Wisconsin to the Karuk in California, Indian Country is crafting ingenious approaches rooted in time-honored ecological knowledge that can guide climate action around the world.” Ending the list, President Sharp highlighted the 2020 Census and demanded that the standard of accountability require “a full count of Native people in this year’s Census no matter where they live and how they choose to participate” and protect Native people against voter suppression. Not only are these demands, she declared, these are what’s deserved!

Closing the meaningful address, President Sharp shared a final message for tribal leaders and all Native people across the land: empowerment comes from the care and efforts taken to tell stories of “strife, resilience, agency, ingenuity, and prosperity to all those who listen… Strength comes from thinking and acting in unity regarding the things that matter most.” With unity, Native people “are an unstoppable force capable of overcoming [their] greatest challenges and achieving [their] greatest and unimaginable futures and aspirations.” 

President Sharp’s address was powerful and eloquent. She provided a thorough assessment of current affairs throughout Indian Country, and she discussed various topics for everyone to contemplate—Native and non-Native alike. The State of Indian Nations Address is informative and encouraging. President Sharp’s call to action for lawmakers will hopefully be heeded in upcoming legislative and judicial considerations. A transcript of the State of Indian Nations Address can be found here

Max Spivak is a 2L at the University of New Mexico School of Law. Originally from west Los Angeles (Tongva land), Max’s academic and professional interests include environmental and cultural preservation, peacebuilding, and pro-poor economics. Max has worked with the Southwest Women’s Law Center, DNA–People’s Legal Services, the Department of Defense, and Invariant Group. 

[1] Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs, 85 Fed. Reg. 5,462–67 (Jan. 30, 2020) (correcting and changing names, editing the notice’s format, and adding the Little Shell Tribe of Chippewa Indians of Montana to the list as the 574th federally-recognized tribe).

[2] Background information about these matriarchs came from Kevin Abourezk, ‘A tremendous opportunity’: New Leader of National Congress of American Indians focuses on tribal sovereignty, (Nov. 7, 2019),; Frank Hopper, State Attorney General announces free, prior and informed consent policy with Washington Tribes, Indian Country Today (May 21, 2019), the rules, making them work, The Seattle Times (Dec. 5, 1996),; U.S. Gov’t Printing Office, 77-465, Report on Tribal Government, Task Force Two: Tribal Government, Final Report to the American Indian Policy Review Commission 157 (1976); Alexandra Harmon, Reclaiming the Reservation: Histories of Indian Sovereignty Suppressed and Renewed 127 (July 12, 2019).


Enduring Resource Extraction on the Navajo Nation

By: Esther Jamison

The threat posed by fracking to the archeological ruins of Chaco Canyon has garnered international attention and nationwide advocacy, resulting in a protective ten-mile buffer zone between fracking activities and the National Heritage Site. Equally deserving of protection, Navajo Nation Council Delegate Daniel Tso gently chides, is the living culture: the Navajo people themselves. Tso is the Council Delegate for the easternmost part of the Navajo Nation, which includes Counselor, NM. He has been conducting what he calls “Fracking Reality Tours” from the Counselor Chapter House for over six years now. The tours give outsiders a small window into the lives of those who live next to fracking operations yet reap little or none of their benefits.  Far away from the Navajo Nation’s governmental headquarters in Window Rock, Ariz., Tso feels that sometimes he has to leverage the help of outsiders to gain the attention from his government that such issues warrant. 

Tso, left and Samuel Sage, right, discuss the quilt of land ownership in the Greater Chaco area.  Source: Steve Wilkerson

Tso begins his tour at the Counselor Chapter House with a lecture on the history and leasing practices of the oil and gas industry on the Navajo Nation, and is joined by Samuel Sage, Counselor Chapter Administrator. Tso tells us that many elderly Navajo believed they were signing merely an exploratory agreement for a traditional kind of oil well. While the word “exploratory” may be a term of art in the oil and gas industry, its plain meaning connotes something less than full-scale production. Few Navajo lessors anticipated the level of production they unwittingly permitted, or the invasive techniques of horizontal drilling that modern fracking uses. Many were signed by elders who did not read or write English, who were given leases six pages long with language that was not translated or explained. Tso asserts that lessors had no legal counsel. 

According to the Western Landowners Alliance, “[m]ost initial offers to lease by oil companies are of a ‘low ball’ nature with room for negotiation, and contain many onerous terms to the landowner.”[1] The Alliance counsels against the acceptance of “fast money,” which “could result in disastrous consequences for the mineral owner.”[2]  They recommend the assistance of specialized oil and gas lawyers, who can recognize and help landowners avoid oil and gas leases such as the “Producer’s 88” form, which is usually “typed in a miniscule and essentially unreadable font” and are “usually drafted much more in favor of the oil company and against the mineral owner.”[3] Oil and gas-authored mineral leases often require riders or addenda to balance out the one-sided nature of the agreement.[4]

Tso tells us that in order to lease a property’s mineral rights, a lessee need only secure the signatures of a majority of the property’s title holders, and this circumstance often bitterly divides families. He shares his personal story of how his siblings sold the mineral lease for their property against his wishes. When a lease is granted, all title-holders benefit, whether they sign the lease or not, and Tso is no exception. At first, he received monthly checks of $500; now, as the wells slowly become less productive, the payment has been reduced to about $100 a month. Tso claims that his family’s land has been degraded environmentally, in some ways permanently, and he says that the oil company’s payments simply cannot compensate for the damage done. 

      A new fracking site owned by Enduring Resources, LLC.
 Source: Kendra Milligan, N.M. Political Report[5]

He acknowledges that some Navajo have been lifted out of poverty by royalties and bonuses from their leases with companies such as Enduring Resources, LLC. They now have nice houses and cars and can leave money to their children and grandchildren. But others were left behind, having granted leases they didn’t understand which paid royalties far lower than they expected. Many tribal members who refused to grant leases live in desperate poverty and still suffer the negative health impacts of wells and fracking operations on their neighbors’ lands.

A fracking venting site where the smell of methane was strong enough it forced a tour member back into her car.

Furthermore, the oil and gas industry leases a significant amount of Bureau of Land Management (BLM) land within the “checkerboard” area of the reservation, increasing the burden of residents who already tolerate pollution from resource extraction on private land. Particularly in the Greater Chaco area and the eastern part of the Navajo Nation, BLM land is interspersed with tribal lands[6]—a legacy of the 1887 Dawes Act.[7] The Bureau’s 2014 estimation that “more than 91 percent of the available land is leased for oil and gas drilling” in the Greater Chaco area[8] is confirmed by Daniel Tso, who claims that now, almost all available BLM-managed land within the Navajo reservation boundaries has been leased to oil and gas. 

 According to Kyle Tisdel of the Western Environmental Law Center, the “BLM has been approving drilling and fracking permits for years without ever having considered the cumulative impacts to people and the environment.”[9]In 2015, Diné Citizens Against Ruining Our Environment, along with other environment protection groups, filed suit to request an injunction to halt the BLM’s issuance of drilling permits. In May 2019, the Tenth Circuit reversed the approval of 25 drilling permits,[10] but the BLM still continues to issue permits.[11] The BLM considers denying permits to leaseholders a “violation of property rights” and continues to permit thousands of new wells on a case-by-case basis.[12]

Tso tells us that the New Mexico Environmental Department often grants exemptions to Environmental Protection Agency (EPA) restrictions on the amount of methane that can be vented by new fracking sites. New Mexico Democratic state representative Angelica Rubio “characterizes the government’s methane-regulation meetings as packed with gas industry supporters, while officials are ‘tiptoeing around the methane emissions.’”[13]

Under the Trump administration, however, EPA oversight has been reduced so severely that no state-level exemptions are even necessary because federal restrictions on leaking methane essentially no longer exist.[14] In 2017, the Trump administration put a two-year stay on Obama-era regulations that imposed fines on oil and gas operations producing more than 350,000 metric tons of “fugitive methane” (leaks) per year.[15] After an Executive Order from Trump in August 2019, the EPA proposed rescinding fugitive methane emissions limits altogether.[16] A 2018 study in Science Magazine found that 2.3 percent of methane extracted from the ground through drilling and fracking in the United States leaks into the atmosphere, a figure 60 percent higher than the EPA’s estimate,[17] and significantly higher than targets set by the oil and gas companies for themselves.[18]

In 2014, scientists working on a NASA study discovered a 2,500-square-mile cloud of methane hovering over the Four Corners region of New Mexico,[19] the largest concentration of methane anywhere in the nation. Three years later, a study in the journal Environmental Science and Technology confirmed that the oil and gas extracting industry around Four Corners was responsible for the large volume of methane.[20]

Health problems caused by methane emissions from fracking operations are now well-documented.[21]Scientists have found a causal connection between fracking and “preterm births, high-risk pregnancies, asthma, migraine headaches, fatigue, nasal and sinus symptoms, and skin disorders.”[22] The Oxford Research Encyclopedia of Global Public Health conducted a preliminary epidemiological study outlining the many different ways in which potentially long-term community and individual health impacts result from oil and gas extraction, especially fracking.[23] Additionally, Tso and Sage believe the air and water pollution that comes with fracking has been responsible for elevated cancer rates on the Navajo Nation. Despite their awareness-raising work on the health impact of fracking, there has been no state- or federally-backed health impact study on the Navajo Nation.  It has been left to the Counselor Chapter to study and publish its own health impact study.[24]  

In addition to the environmental and health impacts caused by methane emissions, the heavy traffic associated with fracking has taken a substantial toll on dirt roads that were never designed for such use. The consequences of road erosion and hazards have real-life consequences for Navajo residents who rely on those roads for daily transport. Tso described people whose cars were damaged by debris on the roads left by fracking trucks, and whose access to their home was impeded by impassable stretches of road that had been rutted out in the rainy season. 

 A road damaged by heavy vehicle use near Counselor.  
Source: Kendra Milligan, N.M Political Report. 

 Oil and gas companies, Tso asserts, develop infrastructure for their own drilling and fracking operations—such as building roads and creating man-made lakes to hold water needed for fracking—which permanently alters what used to be communal land, sometimes in areas that Navajos hold sacred. And yet, no money is ear-marked for the development of civic and community infrastructure in towns and communities affected by these processes within the Nation. The State of New Mexico does not stipulate the need for oil and gas companies to contribute to civic infrastructure in the communities where they operate. Daniel Tso and the Counselor Chapter opposed H.B. 2181—the Chaco Cultural Heritage Area Protection Act of 2019—precisely because it failed to stipulate benefits such as providing running water and electricity to homes in the area.

A reservoir providing water for fracking operations – the hoses are no longer needed as pipe has been laid. Meanwhile, nearby Navajo have no running water. 

About 40% of residents on the Navajo Nation do not have running water,[25] and approximately 1/3 residents of the Navajo Nation live without electricity.[26]  Efforts to bring electricity to residents of the Navajo Nation have not come from the oil and gas industry, but from volunteers and nonprofits. [27]

Water Supply Well owned by Enduring Resources, LLC. Source: Esther Jamison

As heavily dependent as New Mexico is on tax revenue from the oil and gas industry,[28] it is easy to see why Tso and many Navajos feel that their land and health has been sacrificed so that others may thrive: he says, “next time you see a nice street in Rio Rancho, Cuba, Albuquerque, or Taos…remember where that money came from—it came from here.”

            Last year, scientists working within the Environmental Protection Agency under President Trump acknowledged that “non-Whites tend to be burdened disproportionately to Whites” when it comes to breathing polluted air.[29]Although Delegate Tso did not use the phrase “environmental racism,” the disproportionate burden that fracking places on residents of the Navajo Nation inevitably brings it to mind.  

Esther Jamison is a second-year law student at the University of New Mexico and is on the staff of the Tribal Law Journal. 

[1] Dan C. Perry, A Primer on Oil and Gas Leases and Surface Use Agreements for Members of the Western Landowners Alliance 2 (Western Landowner Alliance, 2017),

[2] Id.

[3] Id.

[4] John B. McFarland, Checklist for Negotiating an Oil and Gas Lease 4-5, Oil and Gas Lawyers Blog (Dec. 14, 2017),

[5] Kendra Milligan, Touring the fracking wells at Chaco Canyon, N.M. Political Report (Sept. 26, 2019), Milligan also attended the tour and wrote about it.

[6] See Chaco Cultural Heritage Withdrawal Area Map, BLM New Mexico State Office Geospatial Support Team  (May 14, 2018),

[7] See Issues, Indian Land Tenure Found. (2019),

[8] Protecting Chaco Canyon From Fracking, Greater Chaco region wins reprieve from fracking, W. Envtl. Law Ctr. (May 7, 2019),

[9] Id.

[10] Id. (citing Diné Citizens Against Ruining Our Env’t v. Bernhardt, 923 F.3d 831 (10th Cir. 2019)).

[11] Jonathan Thompson, Court Throws Book at BLM over Fracking Chaco, High Country News (June 3, 2019),

[12] Jonathan Thompson, Resistance to drilling grows on the Navajo Nation, High Country News (Mar. 2, 2018),

[13] Tim Vanderpool, New Mexico Has a Methane Cloud Visible by Satellite. It Also Has Bold Climate Plans, Nat. Res. Def. Council (Oct. 2, 2019),

[14] Ned Harvey, Penny-Wise and Pound-Foolish: The Problem with the EPA’s Proposed Changes to Current Methane Regulations, Rocky Mountain Inst. (Dec. 3, 2018),

[15] Id.

[16] U.S. Environment Protection Agency, EPA Proposes Updates to Air Regulations for Oil and Gas to Remove Redundant Requirements and Reduce Burden, U.S. Envtl. Prot. Agency (Aug. 29, 2019),

[17] Ramón A. Alvarez, et al, Assessment of methane emissions from the U.S. oil and gas supply chain, Sci. Magazine (July 13, 2018),

[18] See Harvey, supra note 14. The Oil & Gas Climate Initiative, a coalition of 13 international oil and gas companies, set a target for its members of 0.37 percent. 

[19] See Renee McVay et al., Oil and Gas Methane Emissions in New Mexico 4-5, Envtl. Def. Fund,

[20] Mackenzie L. Smith, et al., Airborne Quantification of Methane Emissions over the Four Corners Region, Am. Chem. Soc’y (Apr. 18, 2017),

[21] See, e.g., Kristina Marusic, After a decade of research, here’s what scientists know about the health impacts of fracking, Envtl. Health News(Apr. 15, 2019),; Irena Gorski and Brian S. Schwartz, Environmental Health Concerns From Unconventional Natural Gas Development, Oxford Research Encyclopedias (Feb. 2019),

[22] Id.

[23] See Irena Gorski and Brian S. Schwartz, Fig. 4 at 12, supra note 21. 

[24] Counselor Health Impact Assessment Committee, Health Impact Reports Summary Oil & Gas Well Exposure: 2015 – 2017, Counselor Chapter, New Mexico, New Mexico Legislature (Oct. 04, 2017),

[25] Navajo Water Project, About the Project (2019),

[26] Associated Press, After Years in the Dark, Navajo Nation Homes Get Electricity, N.Y. Post (May 20, 2019),

[27] See, e.g., American Public Power Association, Light Up Navajo II, Am. Pub. Power Ass’n, In spring 2019, volunteer crews helped run electricity to homes through the Light Up Navajo Project, a partnership between the American Public Power Association and the Navajo Tribal Utility Authority.

[28] In 2018, taxes from the oil and gas industry amounted to $2.2 billion—around a third—of the state’s budget. See Ron Davis, State Breaks Oil and Gas Revenue Record in FY 2018, Albuquerque Bus. First (Feb. 13 2019),

[29] Vann R. Newkirk II, Trump’s EPA Concludes Environmental Racism Is Real, The Atlantic (Feb. 28, 2019), (referencing Ihab Mikati, et al., Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty Status, Am. J. Pub. Health 108(4), 480-485 (2018), 


Creative Heroes

Look … in the sky … it’s a bird … it’s a plane … No, It’s … It’s an Indigenous Community!

Albuquerque, NM – Indigi Pop X (IPX), the Southwest’s own creative community is giving answers to some of the Native world’s social issues—no cape or superpower necessary. If you have ever wondered why, after years of oppression,  there are not mass retaliations from Indian Country, it is because Natives are busy creating positivity.  A positive example is the IPX event. A fall preview night was recently held in Albuquerque, NM hosted in collaboration with the City of Albuquerque, Native Women Lead, Innovate ABQ, and the New Mexico Humanities Council.  

The IPX preview event showcased an evolution of innovators of change that included artist, cosplay, jewelry, chefs, musicians, authors, and game developers. Diversity was a substantial element at this free, family-friendly event that was open to the public. Amidst the southwestern diversity, there was a common theme—everyone was there to express their indigenous identity. 

What was more awesome than the talent was the people.  Everyone was down to earth and happy to share their story, their purpose, and their goals for their creative business ventures.  Like Kirk Tom from the New Mexico region of Navajo Nation, who’s Star Wars themed costumes crafted in about a weeklong process using EVA foam. Tom’s work has been recognized in various events, including the 73rd annual Navajo Nation Fair. Another notable indigenous innovator present was Tina Archuleta, a Jemez Pueblo entrepreneur.  Archuleta owns Itality, a plant-based wellness food company created to encourage indigenous communities to eat healthy. Archuleta’s vegan pumpkin nachos were delicious!  So delicious, the person next to me cured any doubts by yelling over to testify how good they were.  The energy was kept up with the eclectic sounds of violinist Sage Cornelius.  The list of talent who volunteered for the preview could go on.  Just go! Whether it’s to look, buy, try new gear, buffalo tacos, comic books, or meet some heroes – The Indigi Pop X 2020 is something to look forward to. 

One might wonder, what does this have to do with the Tribal Law Journal? The IPOP X event does more than support community, business, and health internationally. The creators of this event advance Indigenous education and empowerment.  The event’s founder, Lee Francis, of Laguna Pueblo, has a PhD in Education with a concentration in Educational Leadership.  When asked how this event relates to law, he responded that IPX, “reverses the damaging effects of propaganda used against Natives to develop the historical anti-Indian policies.” Francis believes that showcasing Indigenous identity, educating the public about Indigenous strengths, and bringing people together contributes to solving societal issues in Native communities locally and worldwide.  The next IPX event is scheduled for March 25 – 29, 2020.  More information can be found at:

Felisha Adams is a second-year law student at the University of New Mexico School of Law. Felisha graduated magna cum laude from Diné College with a BA in Business Administration and Tribal Economic Development. She is also a proud Pre-Law Summer Institute (PLSI) alumni.  Felisha is a member of the Navajo Nation who came from Iyanbito, NM to Albuquerque, NM to pursue a J.D. with a certificate in Indian Law. Her future plans include applying her business, cultural, educational, and legal experience towards supporting sovereignty and tribal economic development.


Case Note: Nouri v. Crownpoint Family Court


Nouri v. Crownpoint Family Court involves a private custody matter of an enrolled Navajo child living away from the Navajo Nation lands.[1] This case demonstrates the fundamental Navajo principles of Diné bi beenahaz’áanii as they apply to the jurisdictional laws of Navajo courts over tribal children. In this case, the Supreme Court of the Navajo Nation upheld tribal jurisdiction over a Navajo child living away from Navajo Nation lands with a non-Navajo parent.

Summary of Relevant Facts & Procedural History

On October 1, 2013, Dennison, Navajo father, filed a petition for paternity, custody and visitation in the Crownpoint Family Court of the Navajo Nation after Nouri, non-Navajo mother, moved away from the Navajo Nation with their child, an enrolled member of the Navajo Nation.[2] Soon after, Nouri moved to dismiss and filed a “competing petition” in state court.[3] The Crownpoint court denied Nouri’s motion to dismiss, holding that “the Navajo Nation courts have ‘original jurisdiction’ in matters concerning Navajo children which are balanced ‘in the spirit of comity and the exercise of concurrent jurisdiction’ on a case by case basis.”[4]  Similarly, the state court also dismissed Nouri’s petition after consultation with the Crownpoint Family Court.[5]

Nouri then filed a motion for reconsideration in Crownpoint court, which was denied.[6] Resulting in Nouri filing a petition for Writ of Prohibition to the Supreme Court of the Navajo Nation, arguing that the Navajo Nation courts lacked jurisdictional authority over Navajo children that do not live within Navajo Indian country.[7]  She argued (1) that the Álchíní Bi Beehaz’áannii Act repealed and replaced the Navajo Nation Children’s Code, which provided the Navajo Nation with “‘exclusive original jurisdiction’ in child custody cases concerning Navajo children ‘wherever they may arise’ and (2) that the proper statutory provision is 9 N.N.C. § 1004(C)(1) of the Álchíní Bi Beehaz’áannii Act, which limits the jurisdiction of the court to matters involving children living within the Navajo Nation.[8]


The Supreme Court of the Navajo Nation upheld the jurisdiction of the Crownpoint court, under 7 N.N.C. §§ 235(B) and 235a, (1) as the “Navajo Nation has jurisdiction over Navajo children wherever they may reside…as arising from our inherent sovereign right to watch over tribal children, in privately filed child custody actions,” (2) the Navajo Nation’s jurisdiction extends to all members of the Navajo Nation on the basis of their tribal membership, and (3) the Álchíní Bi Beehaz’áannii Act is inapplicable to private custody disputes.[9]

Summary of Analysis

In its determination, the Court rejects Nouri’s arguments that tribal jurisdiction is limited to child custody matters involving children living within the Navajo Nation lands and validates tribal jurisdiction in light of Navajo Nation statutory law, precedent, and Diné bi beenahaz’áanii.

The Court relies on Bahe v. Platero as controlling precedent for the jurisdiction of tribal courts over private custody disputes involving Navajo children.[10] In Bahe, the Court determined that jurisdiction over private child custody matters was governed by 7 N.N.C. § 253a, in accordance with Diné bi beenahaz’áanii, and that the Álchíní Bi Beehaz’áannii Act was inapplicable.[11] First, Under 7 N.N.C. § 253a(F), the jurisdiction of the tribal courts arises “from [the Navajo Nation’s] inherent sovereign right to watch over the upbringing of our tribal children as a matter of health, safety, and welfare of the Nation as a whole and in keeping with Diné bi beenahaz’áanii, which teaches that our children occupy a space in Navajo culture that can best be described as sacred and holy.”[12]  Second, under 7 N.N.C. § 253a(B), the jurisdiction of tribal courts extends to “Navajo members on the basis of membership wherever they may reside.”[13] Third, the Álchíní Bi Beehaz’áannii Act is limited to “delinquency, children in need of supervision, dependency, and Indian Child Welfare Act proceedings, not private child custody matters between parents.”[14]

In rejecting Nouri’s arguments, the court reasoned that the legislative intent of Navajo Nation Council in enacting the Álchíní Bi Beehaz’áannii Act was to address the “Nation’s ‘legitimate and compelling interest, parens patriae, in the well-being, welfare and safety” of Navajo children affected by “torture, abuse, neglect, truancy, and delinquency.”[15] Furthermore, the Court had previously held that the language of the Álchíní Bi Beehaz’áannii Act expressly limited its applicability to “address circumstances of substantial disharmony or discourd involving children, not intra-familial arrangements.”[16]

Lastly, the Court discussed the issue of concurrent state and tribal jurisdiction on matters involving Navajo children. In 2009, New Mexico state courts “acknowledged the concurrent jurisdiction of tribal courts over tribal children, even those with a non-member parent” in the interests of comity, best interests of the children, and the “strong congressional expression in favor of tribal self-determination as to the upbringing of tribal children.”[17] Similarly, the Navajo courts recognize the need to work with state courts to ensure that the best interests of the Navajo children preserved.[18] Therefore, the Navajo courts and the state courts are expected to communicate, when appropriate, to ensure the respectful resolution of children’s issues.[19]


Thus, the Court held that the jurisdiction of the Crownpoint court was proper under 7 N.N.C. §§ 253(B) and 253a and Nouri’s petition for Writ of Prohibition was denied.[20]

Kristen Polk is a second-year law student at the University of New Mexico School of Law. She is an enrolled member of the San Carlos Apache Tribe from San Carlos, Arizona.

[1] Nouri v. Crownpoint Fam. Ct., 12 Am. Tribal Law 50 (Navajo July 22, 2014).

[2] Id. at 51-52.

[3] Id. at 52.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 52-53.

[10] Id. at 53.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 55.

[18] Id.

[19] Id.

[20] Id. at 53, 55.


Reflections: The Native American Community Academy (NACA) Feast Day and the Importance of Indigenous Education

On Friday October 18, 2019, I woke up early to get my daughter ready for school. For other children who do not attend the same school as her it was just another Friday, but for my daughter it was Feast Day at the Native American Community Academy (NACA). She was so excited she got to wear her traditional Lakota dress with two braids in her hair and her beaded earrings. It was the day she had been waiting for all week. When I arrived, I saw the entire NACA community at work. As a community they worked to prepare food, set up chairs and booths.  When feast day began, I watched as every class walked out with pride to be dressed in their traditional wear. Kara Bobroff, the founder of NACA, stated that NACA was founded to provide Native students with an indigenous education where Native students can keep their traditions, learn their language, and preserve their culture. At one point she asked us something along the lines of “how do we remember our ancestors?” She stated that the NACA core values are a reflection of the answer. There are six core values that are taught at NACA:

  1. Respect
  2. Responsibility
  3. Community/service
  4. Culture
  5. Perseverance
  6. Reflection

I was reminded that day how important indigenous education is and how much of an opportunity my daughter has to attend a school that is taught through a Native American perspective. My daughter’s father expressed that he was happy that his daughter is able to learn Lakota and engage in indigenous traditions because he was not given that opportunity. He was adopted outside of his tribe in violation of the Indian Child Welfare Act (ICWA) and did not come to know his family until he was about 23 years old. His family are members of the Cheyenne River Sioux in South Dakota. In relation to NACA, I thought about the Tribal Law Journal and its core values which are:

  1. Flux/Change
  2. Organization
  3. Relationships
  4. Respect
  5. Responsibility

The core values are practically the same. This is why Tribal Law Journal and classes like

The Law of Indigenous Peoples is so important. It is imperative for Native students to learn and preserve their culture, language, and traditions, and having Indigenous education available is something that should be implemented in every educational space.

Vanessa Hidalgo is a second-year law student at the University of New Mexico. She hopes to incorporate Critical Race Theory in her career after law school.


Tribal Law Journal Alumni Spotlight: Heidi Todacheene

Heidi Todacheene is an enrolled member of the Navajo Nation. She is from Farmington, New Mexico and a graduate of the University of New Mexico, earning her J.D. from the University of New Mexico School of Law in 2015. She served on the Tribal Law Journal Editorial Board and Staff from 2013-2014 and as a Professional Article Editor from 2014-2015. Ms. Todacheene published her Article, She Saves Us from Monsters: The Navajo Creation Story and Modern Tribal Justice, in Volume 15 of the Tribal Law Journal.[1]

Ms. Todacheene previously worked for the New Mexico Indian Affairs Department in Santa Fe and practiced civil litigation before moving to D.C. to work on government and legislative affairs for the Navajo Nation. She currently serves as Legislative Assistant to Congresswoman Deb Haaland.[2]

1. How has the Tribal Law Journal (TLJ) been useful in your career?

It helped me with editing skills I would not have had before. It also exposed me to different issues that I would not have known before. Being on the Board and helping to participate in different events was helpful for myself and anyone who is looking to go into any clerkship or intensive writing jobs in general.

2. Why did you decide to join the Tribal Law Journal?

I wanted to get some editing skills, to have credentials on my resume. It allowed different types of opportunities. Since my interest area is Indian law, and the larger policy area, with that and my enjoyment of writing, I joined the Tribal Law Journal to be able to work on issues with a good group of people.

3. What did you learn from the Tribal Law Journal?

I learned from the Tribal Law Journal that it really helps – law school can be a little isolating because everyone is doing their ‘own thing’ during 2L and 3L year. TLJ was helpful to learn to work in a group, trying to manage that and building relationships. It exposes you to that especially working with the Board.

4. What advice would you give to students interested in, or already involved with, the Tribal Law Journal?

One piece of advice would be to take the citation assignments seriously. It helped me throughout my career and even with other issues. Knowing The Bluebook and how it works helps a lot, so make sure to take them seriously because they benefit you in the long run.

5. What was your favorite memory serving as a Tribal Law Journal Staff and Editor?

Working on my own, on my published article, was really hard work. Working with some of the people that I still talk to today, building relationships and meeting new students you wouldn’t have met before was really great.

Also, working on the State-Tribal Judicial Consortium was amazing. I was able to see state and tribal judges working together with issues like ICWA [Indian Child Welfare Act] and adoption, which is a really unique relationship you don’t see anywhere else. That experience helped me get acclimated to key policy makers on Indian law and was really helpful.

6. Why do you think it’s important that a journal such as the Tribal Law Journal exists?

It’s important, especially in New Mexico, to highlight Native issues. A lot of people don’t understand that Indian law is its own section of law. A lot of people don’t understand sovereign issues. It’s important to provide knowledge on nuanced issues. For UNM Law to have such a journal is a key indicator of its importance with tribes. The relationship between tribes [and New Mexico] is reflective of how the state treats Indian Country issues in general. Many people stay in the state, and even If they work on federal issues later, having those relationships in New Mexico is important.

Heidi Todacheene was interviewed by Tribal Law Journal Co-Editor in Chief Jordan Oglesby. Jordan Oglesby is a proud member of the Navajo Nation and a 3L at UNM School of Law, pursuing her Indian Law Certificate. She interned the Office of Congresswoman Deb Haaland in the summer of 2019 and has previously served as Teaching Assistant for the Pre-Law Summer Institute through the American Indian Law Center. Jordan looks forward to serving Indian Country after graduating in May 2020. 

[1] Volume 15: 2014-2015, Tribal Law Journal, (last visited Nov. 1, 2019).

[2] WHM19 Congressional Staff Spotlights, Medium, (last visited Nov. 1, 2019).


Case Note: Herrera v. Wyoming, 139 S. Ct. 1688 (2019)

On May 20, 2019, the Supreme Court of the United States released their newest contribution to Federal Indian Law. In Herrera v. Wyoming, the Court held that Wyoming’s entry into the Union does not abrogate off-reservation hunting rights guaranteed in the 1868 Treaty between the United States and Crow Tribe of Indians.[1] The Court specified that on remand, Wyoming may argue: 1. that the specific hunting site is “occupied,” and 2. state conservations regulations are necessary to coincide with the Crow off-reservation hunting treaty right.[2]

Summary of Facts

The Plaintiff, Calvin Herrera, is a Crow Tribal member and elk hunter. In 2014, Herrera was hunting in the Big Horn National Forest when he was charged by the State of Wyoming for violations of taking an elk “off-season” and hunting without a license. [3]

Procedural History

In 2015, the state trial court rejected Herrera’s argument that the 1868 Treaty permitted him to to hunt off-reservation.[4] During trial, Herrera was denied his treaty defense and the jury produced a guilty verdict for both violations.[5] On appeal, the Wyoming Court of Appeals was presented the question of whether the off-reservation hunting provision of the 1868 Treaty was still valid.[6] The Court of Appeals chose to apply the same reasoning in Ward v. Race Horse, and held that the off-reservation hunting treaty provision expired when Wyoming entered the Union.[7] The court relied upon a U.S. Court of Appeals 10th Circuit case, Crow Tribe of Indians v. Repsis, to reject Herrera’s treaty defense. The court reasoned because the Crow Tribe litigated Repsis on behalf of both the Tribe and its members, Herrera’s defense was “issue-precluded.”[8] The court also added that even if the provision survived Wyoming’s statehood, the 1868 Treaty language would consider the Big Horn National Forest as “occupied,” and Herrera would not be permitted to hunt there.[9]

Herrera’s petition to the Wyoming Supreme Court was denied, however the U.S. Supreme Court granted certiorari.[10]

Summary of Analysis

The Court was presented with and addressed two questions. The first question was whether the Crow Tribe’s 1868 off-reservation hunting right was still valid after Wyoming’s statehood.[11] Second, if the provision was valid, the issue is whether the Big Horn National Forest is now considered “occupied.”[12]

To address the first question, the Court made three separate inquiries:

1. Whether the case is controlled by the analysis of Race Horse or Minnesota v. Mille Lacs Band of Chippewa Indians;[13]

2. Whether Repsis, precluded Herrera’s argument that the treaty provision survived Wyoming’s statehood;[14] and

3. If applying Mille Lacs analysis, did Wyoming’s statehood abrogate the Crow Tribe’s treaty right?[15]

First, the court determined that the case would be controlled by the Mille Lacs analysis.[16] The court held that Race Horse “must now be regarded as retaining no vitality.”[17] Mille Lacs provided a 2-part analysis for the Court to follow: whether an Act of Congress admitting a state into the union abrogated a treaty right and next whether there was evidence to show the parties intended for a treaty right to be abrogated upon statehood.[18] In the analysis, the court did not find any evidence within the Wyoming Statehood Act to suggest the abrogation of the off-reservation hunting right, or that either party intended to abrogate such right. The Court further rejected the State’s argument that the treaty right was “irreconcilable” with state sovereignty, as other states have imposed reasonable conservation regulations to coincide with off-reservation hunting.[19] The Court further clarified that Race Horse can only be used to support the argument that statehood does not impliedly extinguish a treaty right.[20]

Second, the court determined that Repsis did not preclude Herrera’s off-reservation treaty defense.[21] The court held that by adopting Mille Lacs, this constituted a change in law, to justify Herrera’s defense.[22] The court reasoned that even when the elements of issue preclusion exist, exceptions can be warranted given an intervening change in law – this case mandated the application of Mille Lacs.

Third, the court determined there was no act of Congress, treaty reference, or historical evidence to show Wyoming’s statehood abrogated the Crow Tribe’s off-reservation treaty right.[23] The court held that the Treaty included four separate situations or circumstances that would terminate the off-reservation hunting provision, but statehood was not included.[24] The court reasoned that Congress did not implicitly or expressly abrogate the hunting right, and thus there was no reason for the Crow Tribe to equate Wyoming’s statehood as the abrogation of their right to hunt off-reservation.[25]

Through the application of Mille Lacs, the Court answered the first question presented by determining that the Crow Tribe’s 1868 off-reservation hunting right was still valid after Wyoming’s statehood.

Next, the court addressed the second question of whether the 1868 Treaty would consider the Big Horn National Forest as now “occupied.” Within the text of Article IV of the Treaty, it required the Crow Indians to maintain peace “among the whites and Indians on the borders of hunting districtsand to only make “permanent settlement” on their reservationto retain their right to hunt on “unoccupied lands.”[26] The Court’s analysis required interpreting “unoccupied” upon how the Crows would have interpreted and understood the word when they signed the 1868 Treaty.

The Court held that the withdrawal of federal land for the creation of the Big Horn National Forest did not categorize the land as “occupied.”[27] The Court’s reasoning narrowed upon how the Crow Indians would have understood the term “unoccupied.” The Court juxtaposed the treaty text with the historical context of the Crow Tribe at that time.[28] Although the State urged the Court to consider the National Forest as occupied, the Court nevertheless determined the park supported the treaty right by preventing the land from being occupied for settlement.[29] The Court also specifically mentioned that federal land withdraws to prevent settlement; mining and/or logging operations; and imposed hunting restrictions would not categorize land as “occupied.”[30]

Although the Court concluded Wyoming’s statehood did not abrogate the Crow Tribe’s off-reservation hunting right and the land was not categorized as occupied, the opinion was limited. First, on remand, the State may argue that the specific hunting site is in fact occupied.[31] Second, the State may also argue why conservation regulations are necessary to coincide with off-reservation hunting.[32]


The Court vacated the Wyoming District court decision, and “remanded the case for further proceedings.”[33]

Krista Thompson is a second-year law student at the University of New Mexico School of Law. She is Navajo, Hopi, and Yavapai and grew up in Fort McDowell, Arizona. Krista is currently working toward her Indian Law Certificate. Prior to law school she attended Arizona State University where she earned a B.S. in American Indian Studies, B.A. in Sustainable Urban Dynamics, and a Masters in Public Policy.

[1] Herrera v. Wyoming, 139 S.Ct. 1686 (2019).

[2] Id. at 1703.

[3] Id. at 1693.

[4] Id.

[5] Id.

[6] Id.

[7] 163 U.S. 504, 516 (1896).

[8] Herrera, 139 S.Ct. 1968, 1694.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 1700.

[13] Id. at 1694.

[14] Id. at 1697.

[15] Id. at 1698.

[16] Id. at 1694.

[17] Id. at 1697.

[18] Id.

[19] Id. at 1695.

[20] Id.

[21] Id.

[22] Id. at 1698.

[23] Id. at 1700.

[24] Id. at 1699.

[25] Id.

[26] Id. at 1701-02.

[27] Id.

[28] Id. at 1702.

[29] Id.

[30] Id.

[31] Id. at 1703.

[32] Id.

[33] Id.