Student Research Topics

Hemp on the Navajo Nation: Returning to Hozhó After the Disruption of Navajo Nation v. Benally

Taylor Bingham

Hemp has been explored as a potential source of economic development by many tribal nations. As of March 22, 2021, 41 tribes have approved hemp production plans through the U.S. Department of Agriculture (USDA), while an additional six tribes have submitted plans that are currently under review.[1] The Navajo Nation is not among them. Though the Nation began to explore industrial hemp production in 2019, the reputation of cannabis[2] preceded these efforts. Though some leaders recognized that the introduction of a nonnative plant species into the environment should be approached delicately, others saw changes to Navajo Nation cannabis laws in preparation for this development as an opportunity to introduce large scale illicit hemp farming, without regard for its potential consequences.

In my paper, I use the case Navajo Nation v. Benally[3] (Shiprock D. Ct. 2020)as a lens to examine how the introduction of industrial hemp cultivation to the Navajo Nation is both supported by and in tension with Diné traditional law. This case was a culmination of local efforts to shut down illicit hemp farms that rapidly expanded in and around the Shiprock, New Mexico community over the span of less than two years. [4] Dineh Benally, a former Navajo Nation political figure and advocate for hemp cultivation as a means of economic development, supervised the farms and was in the process of developing several businesses relating to them when the complaint against him was first filed. [5] After complaints to local officials yielded little response, a combination of investigatory journalism, community activism, and local administrative investigations led to the Navajo Nation requesting and being granted a preliminary injunction and temporary restraining order against Benally and his operation. [6] Though the coronavirus has put any further action against Benally on hold, the farms left a lasting impact on the land, the water, and the community that has yet to be remedied.[7]

I begin my paper with an overview of cannabis law on the Navajo Nation, beginning in 2000 and ending with the most recent order granted in the Benally case in September of 2020. I then briefly profile some traditional Diné legal principles in order to provide a framework for analysis of conflicts brought about by the alleged actions taken by the Defendant in Benally. Next, I use this framework to analyze the Benally filings, focusing on three ways in which the illicit introduction of hemp farming by the Defendant caused disruption to Navajo Nation lands, the people, and the community as a whole. Finally, I conclude by using fundamental Diné legal principles to examine ways in which both the Navajo Nation and the Defendant in Benally could address the harms caused by both regulated and unregulated hemp farming so that the community can move forward.

I was inspired to write about this issue because of the tensions I saw in the press coverage of the case between the pursuit of viable, sustainable economic development by Navajo Nation leadership and the ways the Diné indigenous legal tradition frames the importance of relationships. The introduction of industrial hemp farming has the potential to impact environmental resources, tribal sovereignty and self-governance, and the relationships among community members. If approached haphazardly, as was arguably done in Benally, this potential industry may be doomed to fail.

As I reflect on writing this piece, I acknowledge I am writing from the perspective of an outsider with no lived experience of the Diné legal tradition. I relied on published works by Justice Raymond D. Austin, who served on the Navajo Nation Supreme Court for 16 years, as well as Navajo Nation court opinions to describe the Diné legal tradition and apply it to the Benally case and its consequences. I also relied on coverage of the case by Arlyssa Becenti, reporter for the Navajo Times, whose work provided a window into the perspectives of the Shiprock community as they faced the consequences of this disruptive farming operation. Finally, I would not have been able to reach my limited level of understanding without the patient guidance of my mother-in-law, Dolly C. Begay, who answered so many questions and gently corrected my pronunciation along the way. I’ve learned so much through this experience, and I look forward to continuing to broaden my knowledge and understanding of the indigenous legal tradition as a primary source of law.

[1] Agricultural Marketing Service, Status of State and Tribal Hemp Production Plans for USDA Approval, U.S. Dept. of Agriculture, (last visited Apr. 5, 2021).

[2] Though the terms “cannabis,”, “marijuana,” and “hemp” are often used interchangeably, this is inaccurate. “Cannabis” is used to refer to any product derived from the Cannabis sativa plant. “Marijuana” refers to cannabis that contains higher levels of THC, while “hemp” is used to refer to cannabis plants with less THC. Cannabis (Marijuana) and Cannabinoids: What You Need to Know, Nat’l Ctr. for Complementary and Integrative Health, (last visited Apr. 5, 2021).

[3] See Arlyssa Becenti, 2020 in Review: Cannabis Farmer Still Free After Major Bust, Navajo Times (Dec. 30, 2020), for a review of the circumstances that led to the preliminary injunction and TRO in this case.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

Student Research Topics

Traditional Tlingit Law & Governance and Contemporary Sealaska Corporate Governance: 4 Core Values and a Jurisprudence of Transformation

Micah McNeil

In this paper I discuss the traditional Tlingit law and governance at the initial time of contact with Europeans. I then discuss the transitionary period between the traditional Tlingit law and governance of the Tlingit Nation to the birth of the Sealaska Corporation through the Alaska Native Claims Settlement Act (ANCSA).  Sealaska is an Alaska Native Regional Corporation comprised of the Tlingit, Haida and Tsimshian Nations. I give an overview of the contemporary governance of Sealaska Corporation. I then discuss how Tlingit law and values are still being applied by the Tlingit people through the Sealaska Corporation. I did so in this article by reviewing the four core Tlingit values of Haa Aaní (Our Land), Haa Latseen (Our Strength & Leadership), Haa Shuká (Past, Present, and Future Generations), and Wooch.Yax (Balance) and how the Sealaska Corporation is incorporating them today. These values and protocols have officially been embraced and incorporated into the Code of Ethics by Sealaska. However, before this, they were practiced and in operation largely through performance law.

I also compared the Tlingit clan governance structure with the current Sealaska corporate governance model and discussed the similarities and differences between the two. Sealaska’s corporate governance structures bears a number of striking parallels to the ancient Tlingit clan structure.  However, there have been changes brought about by the Alaska Native Claims Settlement Act, including the transfer of land from the clans to Sealaska and the Native and Village Corporations.  Historically, the Tlingit form of governance was centralized in the clan. Yet, because of the large number of clans in the various Tlingit regions – or kwaans – it created in the aggregate a decentralized form of governance. Today the governance of the Tlingit has transitioned to a regional form of governance through Sealaska and the Central Council of the Tlingit and Haida Indians (CCTHITA). However, similar to the ancient clan structure, the Tlingit also maintain a decentralized form of governance through Sealaska, the various Native village and urban corporations, as well as the organizations Sealaska is associated with. 

In conclusion I discuss the differences between the historic Tlingit clan structure and the Sealaska corporation. As part of this analysis, I discuss various contemporary issues that still need resolution for the Tlingit and Alaska Natives. In particular I focus on land claims, sovereignty, subsistence rights, blood quantum and Native leadership development and employment.  I then give a number of recommendations on how these issues might be addressed and resolved.

Commentary Student Reflections

Reflection: The 2020 Election Once Again Illuminated the Power of Native American Voters, But There’s Still Work to be Done

By: Taylor Bingham

If you were like me this election cycle, your eyes were glued to social media. The 2020 election season seemed never-ending, and it was as if each day brought with it a new constitutional crisis. However, one aspect of this election cycle that brought with it hope for the future of our communities was the extensive efforts being taken on the ground to increase the turnout of Native American voters and expand representation at all levels of government.

This effort resulted in a new President and Vice President, the retention of a Democratic majority in the House of Representatives, and, upon the conclusion of the Georgia runoff election, a 50-50 split in the Senate. It may also lead to the first Native American Cabinet Secretary, with Representative Deb Haaland nominated to serve as Secretary of the Interior. Finally, a record six Native Americans were elected to serve in Congress, and the rise of local Native American candidates who brought crucial issues to the forefront illustrates the potential for the future.

As the nation reflects on the numerous ways in which this election was historic, it is imperative we recognize the importance of Native American voters and Native American candidates. However, we must also acknowledge that in order to bring about fundamental change in our country, progress remains to be made in ensuring that voter disenfranchisement, particularly of Native American communities, is eradicated. As we await the Supreme Court’s decision in Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Apr. 27, 2020), a case in which voting access is being challenged, it is clear that there is still work to be done.

Native American Voters and the 2020 Election

Though Native American voters represent a smaller portion of the United States population, “they are often concentrated in communities that make them a political force.”[1] Native American voters have often been the decisive difference in elections in Alaska, the Dakotas, and the Southwest, and 2020 was no different.[2] The results of this election have been widely attributed to the impact of Native American voters in key states. In Arizona, maps of tribal lands in the state overlap almost exactly with those showing counties that voted for President Biden. As a result, this election was only the second time in 70 years that Arizona has elected a Democratic presidential candidate.[3] Despite the disparate impact of the COVID-19 pandemic on Native American communities and the refusal on the part of the State of Arizona to modify ballot receipt dates, Apache County “saw 116% voter turnout compared to the 2016 election.”[4] In Wisconsin, Native American voters in areas like Menominee County helped create a slim majority for Biden.[5] The Lumbee tribe, who have been pursuing federal recognition for decades and were promised such recognition after a rally held by former President Trump, are being credited with his win in North Carolina, as well as the success of Republican Senator Thom Tillis there.[6]

In South Dakota and Montana, though each state’s electoral votes ultimately went to Trump, counties that overlapped with tribal nations largely showed higher proportions of Democratic voters. Though this did not change the outcome of the Presidential race in those states, the impact on down-ballot races has been demonstrated in the past. The narrow success in 2018 of Montana Senator Jon Tester, a Democrat and staunch advocate for Native American issues, is one  example.[7]

With the increase in partisanship stalling legislation and deepening political divides, elections “are increasingly decided by razor-thin margins” while “Native people are almost always overlooked or forgotten.”[8] However, Jordan James Harvill (Cherokee), who worked with Navajo Nation as chief of staff for VoteAmerica, described this election as one that illuminated for the rest of the country just how important Native American voters are, stating “[w]hen we’re looking on to the next several years, we’re going to see that Native American voters become one of the defining members of the electorate.”[9] It would be a mistake to overgeneralize the Native American electorate as one that votes identically and supports only certain issues. However, it is important to note that issues like tribal sovereignty, energy, climate, water, education, and child welfare have been key to motivating Native American voters to take part in elections.[10] These issues have also demonstrated the ability of legislators to work in a bipartisan manner to advance legislation and promote tribal sovereignty.[11] By presenting comprehensive policies to voters in regard to these issues, the success of candidates in close races will be tied to the power of Native American voters, and the nation as a whole will stand to benefit from the progressive policies that many Native American voters support.

The Success (and Future) of Native American Political Candidates

According to data from the 2010 US Census, if Native American representation in Congress was in proportion to the United States population, there would be two Native American Senators and eight House Representatives.[12] Due to increases in population over the last ten years, it is likely that this number is now higher. In 2020, Representative Deb Haaland (Laguna and Jemez Pueblo) and Representative Sharice Davids (Ho-Chunk) were both reelected, continuing their historic legacies as the first Native American women elected to Congress.[13] They were joined by Yvette Herrell (Cherokee), a Republican from New Mexico and Kaiali’i Kahele, a Democrat and only the second Native Hawaiian ever elected to Congress.[14] Representatives Tom Cole (Chickasaw) and Markwayne Mullin (Cherokee) were also reelected.[15] Though this year did not see Congress painting an accurate portrait of the demographic makeup of the United States, the six Native American candidates elected once again make this House one that is making history.

Though the increase in elected representation is crucial, it is also important to note the increase in Native American candidates overall, and the excitement their candidacy garnered among their constituents. Mark Charles (Navajo), a speaker, activist, and author who was raised in Gallup, NM, was on the ballot in Colorado as a candidate for President.[16] Paulette Jordan (Coeur d’Alene), a Democrat state legislator from Idaho, ran for Senate in a race that was closely followed.[17] There were a total of thirteen Native American candidates for the House of Representatives. One candidate, Lynnette Grey Bull (Northern Arapaho and Hunkpapa Lakota), a Democrat from Wyoming, made history as she is believed to be the first Native American to run for federal office from the state.[18] Her challenge to Republican Representative Liz Cheney was marked by debates in which treaty rights and the impact of COVID-19 were discussed, a rare occurrence in Wyoming’s political discourse.[19]

It remains to be seen how this increase in candidacy played out collectively in state and other down-ballot races, but the successful campaign of Christine Haswood (Diné) of Kansas is one example of the ways in which young Native American politicians have increased representation throughout the country.[20]

Voter Disenfranchisement and Brnovich v. Democratic National Committee

The 2020 election has not demonstrated anything new. The impact of Native American voters on key races and in pushing legislative policy is clear to those who pay attention. However, others’ newfound awareness of the importance of Native American voters and their impact during the 2020 election contrasts with the consistent attacks by various governmental entities on the ability of Native Americans to exercise their right to vote. 

In 2020, the Native American Rights Fund (NARF) issued an extensive report entitled Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters. This report used historical data and data compiled from a series of field hearings conducted across seven states to identify the various barriers to voting access faced by Native American voters.[21] In all, the report describes eleven factors that discourage political participation, ten barriers to voting registration, nine barriers to casting a ballot, and four barriers to having ballots fairly and accurately counted.[22] Each of these factors was then compounded by the failure of many jurisdictions to implement required language assistance provisions mandated by the Voting Rights Act (VRA).[23] As the authors of the report state, it may be that the potential of Native American voters to decide competitive elections has “made them the target of voter suppression tactics in communities that are not used to Native Americans flexing their political power.”[24]

One such example of voter suppression is Brnovich v. Democratic National Committee, a pending Supreme Court Case that is set for oral argument in March 2021. This case presents two questions: 1) Whether Arizona’s out-of-precinct policy violates Section 2 of the VRA, and 2) whether Arizona’s ballot-collection law, passed in 2016, violates Section 2 of the VRA or the Fifteenth Amendment.[25]

In Arizona, each county determines whether they will use a vote center system or a precinct based system for voters who cast their ballots in person.[26] Arizona’s out-of-precinct policy states that voters must vote at their assigned polling place within their precinct, but may cast provisional ballots if they arrive at a polling place where their name is not listed on the precinct register.[27] If that voter is later found to not live at an address within the precinct in which they voted, the provisional ballot is discarded entirely.[28] The second law being challenged is H.B. 2023, which was passed in 2016 and made it a crime to collect or deliver another person’s ballot unless that person was an election official, mail carrier, family or household member, or a caregiver.[29] The Democratic National Committee (DNC) challenged these laws, in part stating that they violate Section 2 of the VRA “by adversely and disparately impacting the electoral opportunities of Hispanic, African American and Native American Arizonans.”[30]

The National Congress of American Indians (NCAI) prepared an amicus brief in     support of the respondents in which they used the voting report to demonstrate the ways in which these two Arizona laws disenfranchise Native American voters in the state. The NCAI brief points to factors such as geographic isolation, lack of residential mail delivery, and lack of reliable roads and broadband access that prevent voters from accessing polling places in precinct or from handling their own ballots.[31] It also described the historical impacts of voter disenfranchisement on Native American communities, and provided numerous examples of ways in which systemic racism has played a significant role in the creation of new voting laws, even since the passage of the VRA.[32] These factors have only been compounded by the COVID-19 pandemic, which has further limited voting access.

It remains to be seen whether the Court will uphold the previous courts reversal that struck down these two Arizona provisions. Regardless of what the Court decides, as voters and advocates, it is crucial that we hold legislators accountable and demand that they address voting barriers such as those described in the NARF report. As community members, volunteering to support voter outreach or donating to voter outreach organizations like Four Directions, the Native American Rights Fund, and the National Congress of American Indians can also be beneficial. However, if the Court chooses to change course and allow the state of Arizona (and others like it) to circumvent voter protections, we can expect to see a continued push by grassroots vote organizers to push forward for the benefit of Native American communities.

[1] Dr. James Thomas Tucker, Jacqueline De León, & Dr. Daniel McCool, Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters 1, Native American Rights Fund (2020),

[2] Id.

[3] Anna V. Smith, How Indigenous Voters Swung the 2020 Election, High Country News (Nov. 6, 2020),

[4] Id.

[5] Id.

[6] Julian Brave NoiseCat, In Trump v. Biden, Native American Voters Played a Crucial Role. It’s Time to Recognize That, NBC News Think (Nov. 27, 2020, 2:32 AM),

[7] See Smith, supra note 3; National Congress of American Indians, Fast Facts, Every Native Vote Counts (2020),

[8] NoiseCat, supra note 6.

[9] Smith, supra note 3.

[10] National Congress of American Indians, supra note 7.

[11] Interview by Savannah Maher with Aliyah Chavez, Reporter/Producer, Indian Country Today (Nov. 4, 2020),

[12] National Congress of American Indians, supra note 7.

[13] Dalton Walker, US House Candidates Make History, Indian Country Today (Nov. 4, 2020),

[14] Id.

[15] Id.

[16] Id.; Dalton Walker, Is Mark Charles on the Ballot?, Indian Country Today (Aug. 21, 2020),

[17] Walker, supra note 13.

[18] Maher, supra note 11.

[19] Id.

[20] Maher, supra note 11.

[21] Tucker et al., supra note 1, at 4.

[22] Id. at 2.

[23] See id. The details of this extensive report are beyond the scope of this reflection piece but are considered by the author to be required further reading for advocates.

[24] Id. at 1.

[25] Petition for Writ of Certiorari at -, Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Apr. 27, 2020).

[26] Brnovich v. Democratic National Committee, Oyez, (last visited Jan 24, 2021).

[27]  Petition for Writ of Certiorari, supra note 25, at 6.

[28] Id.

[29] Id. at 7.

[30] Id. at 5.

[31] See Brief of National Congress of American Indians Amicus Curiae in Support of Respondents at 14-26, Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Jan. 20, 2021).

[32] Id. at 26-34.

Student Reflections

Reflection: Research of the Tarahumara Tribe of Northern Mexico

By: Anna Trillo

In our Law of Indigenous People course in the fall of 2020 students had two options for the final deliverable; a tribal profile and research paper or an extended tribal profile. I chose the extended tribal profile, on a tribe from Northern Mexico, the Rarámuri, or more commonly known as, Tarahumara. I am a first generation American, daughter of immigrants from Mexico. I wanted to contribute information on a tribe from outside of the United States as most of our scholarship is focused on tribes from the United States. I was excited to conduct my research and learn more about the people from where my family comes from.  I quickly learned that my research was going to be much more difficult than I anticipated.  First, there is not an extensive scholarship on indigenous people from Mexico.  While there is more research on tribes from southern Mexico, there is less scholarship available on the indigenous rights of tribes located in northern Mexico.  Second, we are also in the middle of a pandemic, some of the usual avenues for research was limited. Finally, being that indigenous people of the Americas are in areas where different languages are spoken, we don’t have more translated, multilingual information available. 

First, the scholarship on indigenous people of Northern Mexico. Southern Mexican indigenous tribes are much more concentrated in the area and are much more accessible than northern tribes. I also think that because the southern tribes are much closer to some of their original communities and structures, such as the pyramids, there is more interest in the southern tribes.  The Rarámuri people live in the state of Chihuahua, in the high sierras and canyons, more specifically near Copper Canyon.  Chihuahua is mostly desert, mountains and rough terrain, just as we experience in southern New Mexico. The Rarámuri have lived, adapted and survived not only to the extreme terrain but also to the invasion of the “blancos” (the whites) which in the case of Chihuahua are not only the Spanish but later were also the large Mennonite community that immigrated to the area in the 1920’s. This caused the Rarámuri to retreat further into the high sierras and canyons making them less accessible to scholars and general interaction with people.  

Second, access to research on the Rarámuri is limited, while I was able to find many online articles and information that is on online databases, a lot of information comes from books.  The majority of the research comes from the 1990s and earlier.  While I was able to find useful sources, access to books would have been more ideal.  With the pandemic, interlibrary loans have been stopped and/or been slowed down, which is completely understandable with the major closures we have experienced. Another possible barrier would have been that many websites and sources I have found have been in Spanish, fortunately I am fluent in Spanish and was able to utilize some of the sources. 

Finally, one of the main reflections I have had while conducting this research is the lack of sources. When writing and researching indigenous people of the Americas it is important that there is scholarship in both English and Spanish, or even French for our Canadian tribes or Portuguese for our Brazilian tribes.  The Americas encompass many languages, mostly English and Spanish and the lack of translated resources was very disappointing.  Scholars in indigenous studies need to consider how we need to provide our research in different languages as the tribes we are researching have had many interactions amongst each other and we may miss information if we wait and rely on information only in our language of choice.  Indigenous studies scholars should collaborate more and consider setting up organizations/associations to provide their scholarship in multiple languages if it applies to the areas of the people being researched.  In order to better educate people and to provide more advocacy for the indigenous people we need to be able to provide this information in languages more accessible to a larger population of people. 

When more scholarship on the indigenous people of the Americas is provided and is accessible in multiple languages, I think it may lead to more advocacy of the rights of indigenous people. Better scholarship and knowledge about the Rarámuri will lead to better advocacy of the people of the Sierra Madre.


Do Warring Tribes Go Against The Purposes of IGRA?

Author: Rob Waldroup

I. Introduction

The creation of Indian casinos and the processes under which they are established has created a paradox: many tribes attempt to enter into the multi-billion dollar business venture of Indian gaming, only to be blocked through legal and administrative challenges made by other tribes fearing competition. The purpose behind allowing the creation of Indian casinos in the United States is first and foremost to “provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”[1] Allowing inter-tribal conflicts to interfere with that purpose undermines tribal sovereignty for every tribe.

A look into a current situation (the case of the Catawba Nation attempting to enter the business of Indian gaming through petitioning the Department of the Interior (DOI) to take land into trust for gaming purposes) will show how these inter-tribal conflicts begin and the toll they take on less-prosperous tribes. The process of taking land into trust for gaming purposes is arduous enough, and it is made nearly impossible when other tribes add a legal challenge against affirmative decisions for the tribe who is petitioning.

Indian gaming is not a new concept. Some pre-contact dice games have been played since time-immemorial.[2] The Indian Gaming Regulatory Act, the Federal legislation that acknowledges the ability of Federally-Recognized Indian Tribes to conduct various types of gaming on Federal Indian Trust Land, is the modern application of an ancient tradition among Native American Tribes. In October of 1988, the Indian Gaming Regulatory Act (IGRA) was enacted by Congress.[3] The purpose of IGRA is to regulate the conduct of gaming on “Indian Lands,” as it is defined in the Act.[4] IGRA also establishes the National Indian Gaming Commission (NIGC) and the regulatory structure behind Indian Gaming in the United States. [5] The NIGC may oversee the regulation of Indian Gaming and review pending applications from federally recognized tribes that want to conduct Class III (casino-style gaming) on lands held in trust by the Department of the Interior (DOI).[6]

Among the many provisions of IGRA, there exists a prohibition on certain gaming occurring on lands acquired after the passage of IGRA.[7] This prohibition does not apply to lands acquired after 1988 if said lands are taken into trust by the Secretary of the Department of the Interior as part of “the restoration of lands for an Indian Tribe restored to federal recognition.”[8] Gaming may occur on newly acquired lands if certain criteria for the exception are met.[9]The “Restored Lands” Exception is a perfect example of just how arduous the process is for a tribe who would like to build a casino gaming enterprise. With the added costs and pressures caused from litigating challenges made by other tribes, it discourages tribes who could otherwise meet the exceptions of § 2719 to pursue Indian gaming.

Discussing the regulatory framework of the Restored Lands exception and how that framework is applied through the lens of the Catawba Indian Nation trust acquisition for gaming purposes will elucidate the major obstacles for tribes who are trying to fulfill the purposes of IGRA by going through the processes. Many tribes who attempt the processes of taking fee-land into trust for gaming purposes are met with extreme opposition, many times stemming from legal challenges made by other tribes. These inter-tribal conflicts go against the purposes of IGRA all in the name of financial gain.

II. Mapping The Regulatory Framework of The Restored Lands Exception

Understanding the Restored Lands exception is vital to grasping the difficulty that the regulatory framework entails for the majority of tribes who attempt to take land into trust for gaming purposes.[10] After gaining that understanding, it will show how debilitating additional challenges, especially those made by other tribes who already have the financial backing of gaming revenue, truly are for the tribe who is petitioning to enter the business.

The Restored Lands exception of IGRA is rooted in the Code of Federal Regulations, Chapter 25, Sections 292.7-12. These regulations set out the criteria that must be met in order for a tribe to petition for fee-land to be taken into trust for gaming under this exception. Section 292.7 details the general process through which a tribe must establish that they meet the requirements for their proposed acquisition to be taken into trust under the Restored Lands exception. The tribe must have been federally recognized, proven by the criteria in 292.8. The tribe must have at some time later lost its government to government relationship via one of the methods of 292.9. The tribe must have regained its government to government relationship by the means specified in 292.10. The acquired lands must meet the criteria in 292.11. There are also some key definitions that must be understood in order to get the full picture of the criteria which is discussed within the regulatory framework.

Only Indian Tribes are included under the umbrella of IGRA, and thus the only groups eligible to qualify for the Restored Lands exception. As defined in IGRA, the term “Indian Tribe” is defined as any tribe, band, nation, or other organized group or community of Indians.[11] Those Indian Tribes must also be recognized as eligible by the Secretary of the Department of the Interior for the special programs and services provided by the United States to Indians because of their status as Indians.[12] The tribe must also be recognized as having the powers of self-government.[13]

Indian gaming may only be conducted on Indian Lands, as they are defined under IGRA. “Indian Lands” is defined in IGRA as all lands within the limits of any Indian reservation.[14] It also includes those lands whose title is either held in trust by the United States for the benefit of any Indian tribe or individual or those subject to restriction against alienation and over which an Indian tribe exercises governmental power.[15]

The petitioning tribe looking to have a parcel taken into trust through the Restored Lands exception must have been “Federally Recognized” at some point in their history. “Federally Recognized” is defined specifically as it contributes to the process of being granted the Restored Lands exception.[16] For a tribe to have been federally recognized, for the purposes of meeting the Restored Lands exception, the tribe must have: i) entered into treaty negotiations with the United States at one time;[17] ii) been determined by the DOI to be able to organize under the Indian Reorganization Act or Oklahoma Indian Welfare Act;[18] iii) had Congress enact legislation specific to, or at least including, the tribe indicating that a government-government relationship existed;[19] iv) had the United States acquire land into trust for the tribe’s benefit in the past;[20] v) provide some other evidence that shows that a government-government relationship exists between the tribe and the United States federal government.[21]

Next, A tribe must also show that it lost its government-government relationship. To prove this, a tribe must provide proof of legislative termination,[22] or termination demonstrated by historical documents which show that the Executive Branch no longer recognizes a government-government relationship with the tribe or its members.[23]

Finally, The tribe must then be restored to Federal recognition. To prove this restoration, a tribe must show: congressional enactment of legislation that restores the government-government relationship;[24] the tribe has been recognized through the Federal Acknowledgment Process;[25] or there has been a judicial determination/court approved judgement that was entered into by the United States and provides that the relationship was never terminated despite claims from the Executive Branch.[26]

For a tribe’s petitioned parcel to be taken into trust under the Restored Lands exception there must be demonstrated restoration legislation, and that legislation requires or authorizes the Secretary of the DOI to take land into trust within a specific area and the lands are within that geographic area.[27] If there is no restoration legislation, or if geographic parameters do not exist, the tribe must have modern and significant historical connection to the parcel. There must also exist a temporal connection between the date of the acquisition and the tribe’s restoration.[28]If the tribe is acknowledged under the Federal Acknowledgement Process, there cannot be an initial reservation proclaimed after the IGRA’s enactment.[29] In other words, the tribe seeking to be granted the Restored Lands exception cannot have had their original reservation granted to them after 1988, unless Congressional recognition has been given.[30]

A modern connection to the land is established if a majority of the tribe’s members reside within 50 miles of the parcel, or if the tribe’s headquarters are located within 25 miles of the land.[31] A significant historical connection is established if the parcel is located within the tribe’s last reservation via a treaty (ratified or unratified), or if there are documented historical connections.[32] Those historical connections are weighted more heavily if there is documentation by the Bureau of Indian Affairs, DOI, Indian Claims Commission, other Federal court, or Congress.[33]

A temporal connection must also exist between the date of the parcel’s acquisition and the tribe’s restoration. That temporal connection is established by evidencing that the land is the first land that the tribe has acquired since being restored to Federal recognition.[34] Alternatively, the tribe must have submitted an application to take land into trust within 25 years of their restoration.[35] The decision to accept the trust acquisition involves a system of administrative processes described in a guide written by the DOI.[36]  The land to be acquired must also be nearby the tribe’s existing reservation.[37]The tribe is required to provide an economic development plan if the land that is to be acquired will be used for business purposes.[38]

The difficulties in this process extend beyond the regulatory framework.  The journey of the Catawba Indian Nation to get a parcel known as the “King’s Mountain Site” in Kings Mountain, North Carolina taken into trust for gaming purposes is a long one. It started when The Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 restored the Catawba Indian Nation’s federal recognition.[39] The Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 is the culmination of a century-long struggle against the State of South Carolina over aboriginal land claims.[40] The 1993 Act, which restored the Catawba Indian Nation’s Federal Recognition, made IGRA wholly inapplicable to the Catawba Indian Tribe.[41] This was later retracted in a 2019 bill that “clarified” that the tribe was entitled to have land taken into trust for gaming purposes under the Restored Lands exception.[42] The 2019 Senate bill also authorized the DOI to take the parcel into trust (the Kings Mountain Site), for the purposes of gaming.[43]

III. The Catawba Indian Nation And Their Trust Acquisition Under The Restored Lands Exception Exemplifies The Difficulties of The Regulatory Process

The difficulties of the Catawba weaving their way through the regulatory framework of the Restored Lands exception started in 2013 when the Catawba submitted what is known as their “Mandatory Application” to the Secretary of the Interior in order to have the Kings Mountain Site taken into trust, pursuant to the 1993 Catawba Settlement Act.[44] However, on March 23, 2018 (five years later) the Deputy Secretary of the Interior issued a memorandum detailing that the mandatory authority of the DOI did not extend to the Site because it is outside of South Carolina.[45] The Deputy Secretary further explained that the mandatory acquisition provision between the Catawba and South Carolina did not extend to North Carolina since it was not part of the agreement.[46] The Catawba then retracted the Mandatory Application on April 4, 2018.[47] On September 17, 2018, the Catawba submitted what is known as the “Discretionary Application” from which the Site was taken into trust.[48] A Discretionary Application is one in which the discretionary authority of the Secretary of the DOI (sourced in the Indian Reorganization Act) is called upon to decide whether to take a parcel into trust or not.

On March 12, 2020 the Department of The Interior (DOI) accepted the proposal of the Catawba Indian Nation to take approximately 16.6 acres of land in Kings Mountain, North Carolina, into trust for the benefit of the tribe and for the purpose of gaming.[49] Their decision was based on the determination that the land falls under the Restored Lands exception.[50] This is detailed by the DOI in the decision by showing that the Catawba have completed the 3 phases of recognition required to meet the Restored Lands exception: initial Federal Recognition, dissolution of that Recognition, and finally, Restoration of Federal Recognition.

IV. The Eastern Band of Cherokee Indians’ Challenge Goes Against The Purpose of IGRA

The intertribal conflicts that result from DOI decisions create competitions between tribes for gaming revenue. The tribe who is petitioning to have a parcel taken into trust for the purposes of gaming is the only party who would want a more efficient and streamline process. Other nearby tribes see trust acquisitions for gaming as potential competition and often challenge the DOI decision to approve an acquisition. IGRA’s purpose is “to promote tribal economic development, tribal self-sufficiency, and strong tribal government.”[51] When tribes initiate legal challenges against each other in the context of gaming it undermines the purpose of IGRA because the tribe who is looking to gain economic independence is prevented from doing so by another tribe. The DOI decision on the Kings Mountain Site was met with one of these inter-tribal challenges, namely from the Eastern Band of Cherokee Indians (EBCI).[52]

The EBCI complaint lists reasons for which the DOI erred in their determination to accept the King’s Mountain Site into trust for the Catawba Indian Nation.[53] The EBCI maintains that: i) the King’s Mountain Site falls within the EBCI’s traditional aboriginal territory;[54] ii) that the DOI failed to consult the EBCI;[55] iii) that an Environmental Impact Survey was not properly done on the site;[56] iv) the EBCI was not consulted in accordance with the National Historic Preservation Act (NHPA); and, v) the 1993 Catawba Settlement Act has substantive issues which were not addressed in the DOI decision.[57]

After filing the complaint, the EBCI then filed an injunction in District Court for the District of Columbia (D.C.) to prevent the DOI from taking the King’s Mountain site into trust for the Catawba Indian Nation.[58] The Court denied the injunction because it did not find that there would be irreparable harm.[59] The EBCI had to show that the claims raised in their complaint amount to an irreparable harm, which the District Court found was not shown.[60]

While the claims alleged by the EBCI have merit in their own right, a larger issue is the foreseen economic impact that a Catawba gaming enterprise would have on the EBCI’s gaming revenue. The EBCI operates the only Indian gaming enterprise within North Carolina and a 5-state radius.[61] Having a monopoly on this territory undermines the purpose of IGRA by allowing a tribe who has enjoyed gaming revenue for over 20 years to bury an impoverished tribe like the Catawba Indian Nation in legal fees that delay the opportunity for tribal self-sufficiency. 

The DOI decision found that the King’s Mountain Site and the Catawba met the criteria detailed in the relevant regulations for the Restored Lands exception of IGRA.[62] Further, the DOI decision is shored up by the 2019 Senate Bill that affirmed the Catawba Indian Nation’s right to land in North Carolina, which falls within the service area detailed in the bill.[63]This is furthered by the finding that the Catawba would benefit greatly from the economic gains brought by gaming revenue. The DOI found that the significant unemployment of the Tribe’s members, the lack of a prosperous source of revenue for the Tribe, the Tribe’s dependency on funding, and lack of monies for proper infrastructure funding all could be remedied by revenue gotten from gaming.[64]

The amount of time and money, as a result of drawn-out litigation that the EBCI has cost the Catawba, on top of the time that the DOI has made the Catawba wait cannot be stressed enough.

V. Conclusion

Tribes should support each other in trying to shore up their own tribal sovereignty. Supporting other tribes who are going through to the process to gain economic independence from the federal government would be a great place to start. IGRA was drafted in theory to facilitate this, as seen in its policy goals’ section.[65]

The socio-economic impacts of gaming on a tribe who has been previously impoverished should be explored to truly give weight to the impact that gaming revenue can have. Allowing other tribes to impede a tribe from becoming self-sufficient through gaming revenue threatens tribal sovereignty of all tribes, and undermines the purposes of IGRA.

[1]  Indian Gaming Regulatory Act of 1988 Public Law 100-497-Oct. 17, 1988 100th Congress Sec. 2701; 25 U.S.C. ch. 29 at § 2701 et seq., 2702(1), (1988). 

[2] See, Christine Dell’Amore, Prehistoric Dice Boards Found––Oldest Games in America?, National Geographic (10-14-2020),

[3] Indian Gaming Regulatory Act of 1988 Public Law 100-497-Oct. 17, 1988 100th Congress Sec. 2701; 25 U.S.C. ch. 29 at § 2701 et seq. (1988). 

[4] Id. § 2703(4).

[5] Id. § 2702(3). 

[6] Id. § 2704.

[7] Id. § 2719.

[8] Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2719(b)(B)(iii) (1988).

[9] Gaming on Trust Lands Acquired After October 17, 1988, 25 CFR 292.7 et seq. (2008).

[10] For a full list of Indian Land Decisions and the exception under IGRA by which they are decided, See, Indian Land Opinions, National Indian Gaming Commission, October 14, 2020, 34/100 of these decisions were rendered under the legal theory that the tract met the Restored Lands exception.

[11] 25 U.S.C. ch. 29 § 2703(5).

[12] Id. § 2703(5)(A).

[13] Id. § 2703(5)(B).

[14] Id. § 2703(4)(A).

[15] Id. § 2703(4)(B).

[16] 25 CFR 292.8-292.10.

[17] 25 CFR § 292.8(a).

[18] Id. § 292.8(b).

[19] Id. § 292.8(c).

[20] Id. § 292.8(d).

[21] Id. § 292.8(e).

[22] 25 C.F.R. § 292.9(a).

[23] Id. § 292.9(b).

[24] Id. § 292.10(a).

[25] Id. § 292.10(b); For more information on the Federal Acknowledgement Process, See 25 CFR 83.8.

[26] Id. § 292.10(c)(1)-(2).

[27] 25 C.F.R. § 292.11(a).

[28] Id. § 292.11(b).

[29] Id. § 292.11(c).

[30] Id.

[31] Id. § 292.12(a).

[32] Id. § 292.12(b)(1).

[33] 25 C.F.R. § 292.12(b)(2).

[34] Id. § 292.12(c)(1).

[35] Id. § 292.12(c)(2).

[36] Memorandum to Assistant Secretary for Indian Affairs, Solicitor, Chairman, National Indian Gaming Commission, Final Evaluation Report on the Process Used to Assess Applications to Take Land Into Trust For Gaming Purposes (Report No. E-EV-BIA-0063-2003), From Anne L. Richards, Assistant Inspector General for Audits (September 1, 2005).

[37] See 25 C.F.R. § 151.11(b).

[38] Id. § 151.11(c).

[39] Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993, H.B. 2399, 103rd Cong. § 14 (1993), [hereinafter,  “Settlement Act”].

[40] See, e.g., South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986); Catawba Indian Tribe of South Carolina v. State of South Carolina, 865 F.2d 1444 (4th Cir. 1989); Catawba Indian Tribe of South Carolina v. State of South Carolina, 978 F.2d 1334 (4th Cir. 1992); Catawba Indian Tribe of South Carolina v. United States, 24 Cl. Ct. 24 (1991).

[41] See, e.g., Settlement Act at § 12 (Establishment of Expanded Reservation); § 13 (Non-Reservation Properties); § 14 (Games of Chance).

[42] Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993, S. 790, 116th Cong. § 2(b) (2019).

[43] Id.

[44] Supra, note 39; In the Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 there is a provision that the DOI may take an additional ~300 acres into trust for the Catawba.

[45] Memorandum to Secretary, Mandatory Trust Authority Under the Catawba Settlement Act, from Deputy Secretary (Mar. 23, 2018) (Deputy Secretary’s Memorandum).

[46] Id. at 2.

[47] Letter, Chief William Harris to Deputy Secretary Bernhardt (Apr. 2, 2018).

[48] Memorandum to Chief William Harris, Catawba Indian Nation, Catawba Indian Nation Discretionary Application Decision, from Department of the Interior, Office of The Secretary (March 12, 2020), [hereinafter “DOI Decision”]; Until 2020, the Catawba Indian Nation was known as the Catawba Tribe of South Carolina. See 85 Fed. Reg. 5,642 (January 30, 2020).

[49] Id.

[50] See, 25 U.S.C. § 2719.

[51] 25 U.S.C. §2701.

[52] Plaintiff’s Complaint (EBCI Complaint), at 2, (March 17, 2020), Case 1:20-cv-00757, [hereinafter, “EBCI Complaint”].

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction, at 2, (March 17, 2020), Case 1:20-cv-00757-JEB.

[59] Memorandum Opinion, District Court for The District of Columbia, at 9, (April 30, 2020), Case 1:20-cv-00757-JEB.

[60] In the District Court’s denial of the TRO, the court found that the EBCI, at most, is alleging a procedural harm, not an irreparable one.See, Mem. Op. at 7.

[61] See generally, Map of Indian Gaming Location,National Indian Gaming Commission,

[62] DOI decision, supra note 48, at  3-11.

[63] Id.

[64] DOI decision, supra note 48, at 12-13.

[65] Supra, note 1.

Case Notes

Washington State Department of Licensing v. Cougar Den, Inc.

Author: Micah McNeil


In Washington State Department of Licensing v. Cougar Den, Inc., the state of Washington sought to tax Cougar Den, a wholesale fuel importer owned by a member of the Yakima Nation which brought fuel from Oregon for sale to tribal members.[1] The case demonstrates how the Yakima Nation Treaty of 1855 pre-empts state law through its right-to-travel provision. 

Significantly, the Supreme Court used the Indian canons of construction[1]  to interpret the Treaty in terms how the Yakima would have understood it in 1855.[2] Cougar Den—along with Herrera v. Wyoming[3] and McGirt v. Oklahoma[4]—represents a shift in the Supreme Court towards the affirmation of Indian Treaty rights. This case has potential implications for lawyers representing treaty-based, federally-recognized tribes in terms of crafting effective legal arguments and strategies for argument before the US Supreme Court. It also has research implications for tribes, researchers and lawyers, as it may motivate them to do in-depth studies of their own treaties in order to understand how their tribe or tribal client understood the language and provisions of these sacred documents at the time they were signed.

Summary of Relevant Facts & Procedural History

Cougar Den, Inc. was a wholesale fuel importer, owned by a member of the Yakima Nation which bought fuel for members of the Tribe.[5] Cougar Den purchased fuel in Oregon, trucked the fuel to the Yakima reservation on the public highway, and then sold the fuel to Yakima-owned gas stations on the reservation.[6] In December 2013, the Washington State Department of Licensing assessed that Cougar Den owed $3.6 million in taxes, licensing fees, and penalties.[7]  This assessment was the result of a state tax on the importation of fuel on a public highway.[8] This tax applied to all motor vehicle fuel importers who bring large quantities of fuel into the state by ground transportation.[9]

However, the Yakima Nation Treaty of 1855 has a right-to-travel provision which includes “the right, in common with citizens of the United States, to travel upon all public highways.”[10] Cougar Den believed that the right-to-travel provision in the Treaty pre-empted the State tax levied against their company.[11] An Administrative Law Judge (ALJ) in the Office of Administrative Hearings Department of Licensing agreed that the state tax was pre-empted by the Treaty.[12]  However, the Department Director overruled the ALJ’s order.[13] Cougar Den appealed to the Washington Superior Court.[14] The Washington State Superior Court held that the Treaty pre-empted the tax and overturned the Director.[15] The Department Director appealed to the Washington Supreme Court, who upheld the Superior Court’s decision.[16] As a result, the Department of Licensing filed a petition to the United States Supreme Court for review of the Washington Supreme Court decision.[17] The issue on appeal was whether the Yakima 1855 Treaty pre-empted the Washington state tax on Cougar Den’s importation of fuel.[18]


The U.S. Supreme Court held that the 1855 Yakima Treaty provision of “the right, in common with citizens of the United States, to travel upon all public highways” pre-empted the Washington State tax on Courage Den’s importation of fuel.[19]

Summary of Analysis

Justice Breyer, joined by Justice Sotomayor and Justice Kagan, gave three reasons why the state’s tax on Cougar Den’s importation of fuel was pre-empted by the 1855 Yakima right-to-travel provision.[20]

First, the Court noted that it had already considered the 1855 Yakima Treaty in four separate cases.[21] In each case, the language of the Yakima Treaty was very similar to the Treaty language in this case and each time it analyzed the language of the Treaty through the Indian canons of construction.[22] The Indian canons of construction require that the language of the Treaty      is construed in terms of how the Yakima at the time would have understood it.[23] Therefore, although the words “in common” in the right-to-travel provision of the Treaty could be  interpreted as the Yakima’s common freedom to travel on the highway with all other citizens, the court reasoned that this was not how the Yakima understood the word “in common” at the time of the signing of the 1855 Treaty.[24] For instance, in Tulee[25]the Court held that the term “in common” in the fishing provision of the 1855 Yakima Treaty reserved for the Yakima greater rights than other citizens.[26] The Court held that the term “in common” in the Treaty was referring to the Yakima right to fish in their “usual and accustomed places,” rather than simply being a right against discrimination to fish in Washington State.[27] In a similar manner, the words “in common” in the right-to-travel provision of the Treaty would on its face appear to mean the state tax would apply to the Yakima in the same way it applies to other citizens.[28] However, like Tulee, the court declined to read the word “in common” outside of its historical context.[29] The court instead interpreted the phrase “in common” in terms of how the Yakima understood it at the time of the 1855 Treaty.[30]

Second, the historical record acknowledged by the courts indicated that the right-to-travel provision of the Treaty included a right to travel with “goods for sale or distribution.”[31] During the negotiation of the Treaty, both the United States representatives and the Yakima gave special attention to the Yakima’s need to protect their right to travel for the purpose of continuing to hunt, fish, gather food, and trade.[32] Travel for the purpose of trade was central to Yakima’s economy and their spiritual and cultural lifeways.[33] In the historical context, the right-to-travel provision was essential for the Tribe to be able to “travel along the roads for trading purposes.”[34] The Court reasoned that during the Treaty negotiations, statements made by United States representatives “led the Yakima to understand” that the provision of the right to travel on public highways included the right to travel with goods for the purpose of trade.[35]

Third, the court reasoned that the state tax on traveling with certain goods—in this case, fuel—burdens the traveler.[36] The right to travel without the burden of being taxed is what the right-to-travel provision in the Treaty protects.[37] The Court relied on Tulee, which held that the Yakima Treaty right to fish pre-empted the state law applied to the Yakima Nation which required fishermen to purchase a license.[38] The Court in Tulee held that the fee for the license as a prerequisite to the enjoyment of the reserved right to fish could not be reconciled with the Treaty’s construction.[39] The U.S. Supreme Court in this case concluded that as the fee for the fishing license interfered with the Treaty right to fish so too does the state tax imposed on traveling with goods—like fuel—interfere with the Yakima’s right to travel.[40]

In his concurring opinion, Justice [U2] Gorsuch (joined by Justice Ginsburg) put the 1855 Yakima Treaty in historical context. Through the Treaty, the Yakima ceded 10 million acres of land to the United States, which today makes up one quarter of the State of Washington.[41]  In consideration for the 10 million acres of land, the Yakima received a reservation and tribal guarantees including the right to travel for the purpose of trade.[42] The Treaty was negotiated during a time when the US was under tremendous pressure to obtain title to Indian lands in Eastern Washington to settle the Washington territories while a flood of settlers were coming in.[43] The Yakima, aware that their land was going to be taken by the US, managed to negotiate the right to “take their goods freely to and from market on the public highway.”[44] This was a right the US was eager to bargain for.[45] Justice Gorsuch noted that compared to the 10 million acres the US received in exchange for the Yakima’s right-to-travel provision, it was a “bargain basement deal” for the US.[46]

Justice Gorsuch in his concurrence also stated that Court was not only charged with interpreting the Treaty “consistent[ly] with the Treaty’s original meaning,” but also applying the Indian canons of construction, giving “effect to the terms as the Indians themselves would have understood it.” [47] Justice Gorsuch reasoned that the US drew up the contract and as a general rule the Court construes “ambiguities against the drafterwho  enjoys the power of the pen.”[48] Justice Gorsuch noted the US used the power of the pen to its advantage against the Yakima, as the Treaty provisions in the negotiations were ambiguously translated from English to Chinook jargon, which was not the primary language of the Yakima.[49] Also, the Treaty was written in English, a language the Yakima could neither read nor write at the time.[50] The Yakima were also under great pressure by the US government during the negotiations and were essentially forced to sign the Treaty.[51] As a result of ambiguities in the Treaty and the US using the “the power of the pen,” Justice Gorsuch concluded the Court would have to rely on the historical record to understand how the Yakima interpreted the Treaty.[52] 

Justice Gorsuch noted the Court had the benefit of “unchallenged factual finding[s]” provided in Yakima Nation v. Flores[53]to determine the historical record.[54] Flores was a separate federal case where the Yakima challenged state restrictions on their logging operation using its right-to-travel Treaty provision.[55] Justice Gorsuch concluded that these factual findings were binding on the Supreme Court under the doctrine of collateral estoppel.[56] Justice Gorsuch reasoned that the uncontested factual findings of Flores showed that the Yakima understood the Treaty would provide the “right to move their goods to and from the market freely” using the highway.[57] Before the Treaty negotiations, the Yakima were engaged in a vast system of trade and exchange with tribes from the Northwest coast, Montana, and Wyoming, and reached as far as Oregon and California.[58]

Since trade was central to the Yakima culture, economics, and religion, a primary concern of the Yakima during the Treaty negotiations was they have the freedom of movement and trade.[59] It was also common knowledge to the US Treaty negotiators that the Treaty would protect the Yakima’s preexisting right to take goods to and from the market in their traditional trading area.[60] Justice Gorsuch noted that before the Treaty, the Yakima brought goods to and from  market without being taxed, and the historical record suggested that the Yakima would have understand that this liberty would be preserved.[61]  

Justice Gorsuch also concluded that Washington State failed to give full effect to the Treaty’s terms as the Yakima originally understood them.[62] The State argued that the Tribe had the right to travel freely on the highway without restrictions, but the state tax was not on travel, but the “possession of fuel.”[63] The State argued that its tax on Cougar Den’s fuel was a tax on its possession of fuel and the fact that it was being transported on the highway was “neither here nor there.”[64]  However, Justice Gorsuch reasoned that the Treaty did not just guarantee “travel” on the highway free of restriction, but it guaranteed tribal members the right to “move goods” freely to and from the market using the highway.[65]  Justice Gorsuch reasoned that, in the context of this case, it was impossible to transport goods without possessing them.[66] Therefore, this state tax on the Yakimas’ possession of goods as they traveled to and from the market on the highway violated the Yakima Treaty and was thus pre-empted by the Treaty.[67]

Justice Gorsuch summed up his concurrence by noting that the facts of this case represented an “old and familiar” pattern in US history.[68] In this case, Washington State received millions of acres of land that the Yakima ceded to the Federal Government in exchange for “modest promises.”[69]  The state had now grown discontented with the consequences of those promises by not being able to tax Cougar Den in its importation of fuel on the highway.[70] The State of Washington viewed this as a new time and the state now “wanted more,” regardless of promises to the Yakima.[71] To its credit, instead of allowing the state to violate these promises, the Court instead held the parties to the terms of the Treaty.[72] Justice Gorsuch concluded that this upholding of the Yakima Treaty was “the least” the Supreme Court could do.[73]

Research and Expert Testimony Implications from Cougar Den

This case has research and expert witness implications for federally-recognized tribes with treaty protections. Justice Gorsuch used the factual finding in Flores for much of his analysis and holding.[74] The Court in Flores in turnrelied heavily on the expert testimony of William Yallup, a full-blooded Yakima Indian and a highly-respected Yakima Nation historian, as well as the testimony of  Dr. Deward Walk, a Ph. D. in anthropology who is also an expert in ethnology.[75] Dr. Walk is considered to be a “premier expert” on Yakima Indians with an extensive history with the Tribe going back to the 1950’s.[76]  

In Flores, the court recognized Mr. Yallup as the “ultimate expert” in proceedings.[77] Prior to the case, Mr. Yallup was entrusted by the Tribe with the role of preserving the Yakima’s cultural history.[78] Mr. Yallup was taught at an early age the meaning of the 1855 Yakima Treaty from his grandparents.[79] Two of his ancestors were part of the signing of the Treaty.[80] From an early age he was taught the meaning of the Treaty as understood by the Yakima through their oral history passed down through the generations.[81] In Flores, Mr. Yallup testified that the members of the Yakima Nation view the Treaty as a “sacred document” and his initial training of for understanding the Treaty involved how the provisions applied to the Tribes religious conduct.[82] Dr. Walk confirmed that, to the Yakima, the “Treaty embodies spiritual as well as legal meaning” to the Tribe, and each provision of the Treaty has special meaning.[83] In Flores, both Mr. Yallup and Dr. Walk gave expert testimony in areas that covered the Yakima’s history of travel for the purpose of trade, pre-Treaty contacts with the Whites, as well as the Walla Walla Treaty negotiations where the Yakima 1855 Treaty was signed.[84] 

The use of Mr. Yallup and Dr. Walker as experts suggests the Court’s willingness to accept evidence by expert witnesses from multiple disciplines, both tribal and non-tribal, to determine how the tribes understood their treaties at the time they were signed. As noted earlier, Justice Gorsuch made the factual findings in Flores binding for the Cougar Den analysis and holding.[85]  Tribes might consider using expert witness from similar backgrounds for their treaty-based court cases to determine how the tribes understood their treaties at the time they were signed.

Mr. Yallup’s testimony also represents the great value the Yakima Nation places on its 1855 Treaty: it is a “sacred document” worthy of being carefully studied for its meaning at the time it was signed.[86] The concept of the Treaty being a “sacred document” also comports with the Supremacy Clause of the Constitution, which holds treaties as the “supreme law of the land” with binding authority[87] which pre-empts state law.[88]

Similar to the Yakima’s study and application of their Treaties, tribes might consider a cross-disciplinary approach of qualified tribal historians, researchers, legal scholars and lawyers to do in-depth studies of how their tribe understood their treaty provisions at the time they were signed and how the provisions and agreement could benefit their tribe. Out of this process, legal and scholarly recommendations could advise tribal leaders on how treaty provisions and agreements could be applied for their tribe in such diverse areas as economic development, jurisdiction, state taxes, or sacred sites, for example.[89] This could be done not once, but as an ongoing process.

One approach might be the establishment of an “Office of Treaty Protection” within the tribe to help facilitate and institutionalize this process. Whatever method a tribe might use, the model employed by the Yakima to determine the meaning of their Treaty as they understood it—and finding ways to apply the provisions for the benefit of the Tribe—is instructive for treaty-based, federally-recognized tribes seeking to make the most of their treaty rights.


This case is significant as it shows a majority of the United States Supreme Court adhere to the Indian canons of construction. Along with Herrera[90]and McGirt,[91] the case also represents a shift in focus by the Court towards enforcing Indian treaty rights. Lawyers representing federally-recognized tribes with treaty protections might be advised to tailor their legal strategies and arguments to include the Indian canons of construction, as well as research how their tribe understood the terms of their treaties at the time they were established. By discovering how the tribe understood their treaties at the time they were signed, rights and agreements that may have been overlooked and lain dormant could be revived for the benefit of the tribe.

[1] 139 S. Ct. 1000 (2019).

[2] The Court uses four basic canons of construction to interpret Indian treaty language and agreements. One of the foundational canons is that Indian treaty language should be interpreted as the Indians would have understood it at the time the treaty was signed; See Minnesota v. Mille Lacs Band of Chippewa Indians, 119 S.Ct. 1187, 1201 (1999).

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

[4] McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).

[5] Cougar Den, Inc., 139 S. Ct. 1000, 1007 (2019).

[6] Id.

[7] Id.

[8] Id. at 1008.

[9] Id. at 1006.

[10] Id. at 1007.

[11] Id.

[12] Id. at 1008.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id. at 1006.

[19] Id. at 1011.

[20] Id.

[21] Id. at 1011.

See United States v. Winans, 198 U.S. 371, 380-381 (1905); Seufert Bros. Co. v. United States, 249 U.S. 194, 196-198 (1919); Tulee v. State of Washington, 315 U.S. 681, 683-685 (1942); Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 677-678 (1979).

[22] Cougar Den, Inc., 139 S. Ct. 1000, 1011 (2019).

[23] Id.

[24] Id.

[25] Tulee v. State of Washington, 315 U.S. at 684 (citing Winans, 198 U.S. 371).

[26] Cougar Den, Inc., 139 S. Ct. 1000, 1012 (2019).

[27]  Id.

[28] Id. at 1011.

[29] Tulee, 315 U.S. at 684 (citing Winans, 198 U.S. 371).

[30] Cougar Den, Inc., 139 S. Ct. 1000, 1011 (2019).

[31] Id. at 1012.

[32] Id. at 1013.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Cougar Den, Inc., 139 S. Ct. 1000, 1013 (2019).

[39] Cougar Den, Inc., 139 S. Ct. 1000, 1013 (2019).

[40] Id.

[41] Id. at 1016.

[42] Id.

[43] Id. at 1018.

[44] Id.

[45] Id.

[46] Id.

[47] Id. at 1016.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Justice Gorsuch reasoned that the Washington State Superior Court relied on the findings of Flores and collaterally estopped Washington state from challenging them. Because the State did not challenge the Superior Courts estoppel ruling in either the Washington Supreme Court case or this case, the finding from Flores are binding in this case. See Yakama Indian Nation v. Flores, 955 F. Supp. 1229 (9th Cir. 1998).

[54] Cougar Den, Inc., 139 S. Ct. 1000, 1016 (2019).

[55] Flores, 955 F. Supp. 1229, 1232 (9th Cir. 1998).

[56] Cougar Den, Inc., 139 S. Ct. 1000, 1019 (2019).

[57] Id.

[58] Id. at 1017.

[59] Id.

[60] Id.

[61] Id. at 1018.

[62] Id. at 1019.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Id. at 1021.

[69] Id.


[71] Id.

[72] Id.

[73] Id.

[74] Id.

[75] Flores, 955 F. Supp. 1229, 1236 (9th Cir. 1998).

[76] Id.

[77] Id. at 1237.

[78] Id.

[79] Id. at 1236.

[80] Id.

[81] Id. at 1237.

[82] Id. at 1236.

[83] Id. at 1238.

[84] Id. at 1236-1245

[85] Cougar Den, Inc., 139 S. Ct. 1000, 1019 (2019).

[86] Flores, 955 F. Supp. 1229, 1236 (9th Cir. 1998).

[87] U.S. Const. art. IV, cl. 2.

[88] Maryland v. Louisiana, 451 U.S. 725, 728 (1981).

[89] This would be on a case-by-case basis for the tribes, depending on the treaty provisions in the agreement.

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

[91] McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).

Case Notes

The Implications of a Supreme Court Decision in McGirt v. Oklahoma for the Integrity of Indian Reservations

As a result of Justice Neil Gorsuch’s recusal, the U.S. Supreme Court has reached a deadlock in Sharp v. Murphy.[1]  Possibly to sidestep Gorsuch’s conflict of interest arising from the case’s procedural history in the Tenth Circuit, the Court granted certiorari at the end of last year in McGirt v. Oklahoma,[2] which raises similar questions about the jurisdictional status of territory historically claimed by the Muscogee (Creek) Nation. Oral argument in McGirt has been rescheduled for May 11, 2020, when the nine justices of the Supreme Court will have to reckon with the historical and doctrinal issues underlying both cases. 

According to the petitioner, the question presented is “whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction in Indian Country over Indians accused of major crimes enumerated under the Indian Major Crimes Act — which are under Federal criminal jurisdiction.”[3] The respondent, the State of Oklahoma, puts it another way: “Whether the State of Oklahoma has jurisdiction to prosecute crimes committed by a tribal member on land within the 1866 territorial boundaries of the Creek Nation in the former Indian Territory of eastern Oklahoma.”[4]

As the discrepancy between the two questions demonstrates, the underlying issue is whether the place of the petitioner’s crime is currently Indian country or not. At stake is jurisdiction over roughly half of Oklahoma (including Tulsa), and more importantly, the potential for the Supreme Court to decide whether an Indian reservation has been disestablished (or diminished) solely on the basis of demographic change.  Historically, even if the demographic make-up of Indian country has changed (due to the influx of white settlers following allotment, for example), that factor alone has not been sufficient for the court to find disestablishment.[5]

Supreme Court precedents such as Solem v. Bartlett[6] and Nebraska v. Parker[7] have held that Indian reservations can only be diminished by explicit terms in statutes or treaties, or by a clear showing of congressional intent and supportive legislative history. While 1984’s Solem still held open the possibility of de facto diminishment (in which the territory’s loss of “Indian character” could influence a finding[8]), the much more recent ruling in Parkerattempted to put that possibility to rest: “[S]ubsequent demographic history cannot overcome our conclusion that Congress did not intend to diminish the reservation.”[9] Quoting South Dakota v. Yankton Sioux Tribe, the Court stated that “evidence of the changing demographics of disputed land is ‘the least compelling’ evidence in our diminishment analysis.”[10]

Despite clear precedents in the petitioner’s favor, the justices may be reluctant to side with the petitioner because of the practical consequences of doing so.  The State of Oklahoma warned in its brief against the “staggering ramifications” of a change of jurisdiction over the population of 1.8 million in that area.[11] The United States argued as amicus in support of Oklahoma that such a decision “would have great adverse consequences” and would result in “a massive increase in federal law-enforcement presence and responsibilities.[12] The petitioner countered such fears by pointing out that, “[o]n fee land—the only land affected by reservation status—tribal civil jurisdiction over non-Indians is ‘presumptively invalid.’”[13] Furthermore, he argued, “States retain jurisdiction over non-Indians absent specific preemption.”[14]

Traditionally, federal Indian policy has prompted the United States to brief on the side of tribes in cases where tribal self-government and tribal sovereignty are at stake.[15] Under the current administration, however, that traditional role may have changed: in this case and in Sharp v. Murphy, the United States filed amicus briefs in support of the State of Oklahoma and against the interests of the Muscogee (Creek) Nation.[16]  In its amicus brief, the United States posits an argument (shared by Oklahoma) that is hard to reconcile with historical fact: it contends that the Creek reservation was never established to begin with, and therefore, Parker’s test for disestablishment need not be applied.[17]  Not only would the Supreme Court have to overlook the plain language of a series of treaties and statutes[18] to agree with this position, it would also have to reverse the Tenth Circuit’s decision in Murphy v. Royal which held that “Congress has not disestablished the Creek Reservation.”[19]

Considering the apparent difficulties presented on both sides, will the justices try to find a way to distinguish this case from territory at issue Parker and Solem? The United States’ amicus brief asserts that the Muscogee (Creek) Nation as one of the Five Tribes is “not on the ordinary Indian reservation.”[20] According to the United States, Indian territory belonging to the Five Tribes was distinguishable from other Indian reservations because it was “patented . . . in communal fee simple” and was almost “considered an independent country.”[21]  It argued that Congress did not disestablish a Creek reservation because one was never created in the first place; rather, Congress “eliminated” the tribes’ “status” through the “wholly different process of transforming a U.S. territory into a State.”[22] Such euphemistic and antiseptic language not only conceals the historic injustices perpetrated by both state and national governments against the Creek, but also distracts from the real doctrinal issues by ignoring historical evidence of the reservation’s existence.  

The petitioner’s reply[23] and the amicus brief for the Muscogee (Creek) Nation roundly refute the notion that there was no reservation: 

Oklahoma’s claim that a Reservation was never established for the Nation in the Indian Territory is divorced from both text and history. The Treaty of 1866 expressly refers to the Nation’s Territory as a “Reservation.” Art. IX, 14 Stat. 785, 788 (1866). That was no slip of the pen, but rather reflected the defining characteristics of the Creek territory.[24]

Further refuting Oklahoma’s contention that “issuance of a fee patent in 1852 divested the Creek territory of reservation status,” the Muscogee (Creek) Nation responded that “the rule nowhere exists that a tribe cannot possess fee title to a reservation. As the National Congress of American Indians well explains, nineteenth-century reservations rested on various forms of land tenure, with many substantial reservations held by tribes in fee simple.”[25] In addition, neither has “this Court nor Congress . . . deemed title determinative of reservation status.”[26]

If the Court were to find for the State of Oklahoma and hold that a reservation can be diminished or disestablished in the absence of any congressional action or intent, it would create a dangerous precedent that would leave the sovereignty of tribes at the mercy of federal courts.  Justice Thomas, who authored Nebraska v. Parker, may feel some hesitancy in swallowing his own words that “this Court has never relied solely on this third consideration [of demographic change] to find diminishment.”[27] Justice Gorsuch might also balk at overruling Parker, along with the other liberal justices[28] (with the possible exception of Justice Ginsburg[29]).  

After oral argument this May, the justices will be addressing all of these issues and their long-term implications when they decide whether to uphold Parker, overrule it, or find a way to distinguish the case at bar from the Court’s own precedents.

            Esther Jamison is a second-year student at the University of New Mexico School of Law.

[1] Sharp v. Murphy, No. 17-1107 (argued Nov. 27, 2018); Adam Liptak, Supreme Court to Rule on Whether Much of Oklahoma is an Indian Reservation, N. Y. Times, Dec. 13, 2019, v. Murphy was previously known as Carpenter v. Murphy, inter alia, and the case was appealed before the Tenth Circuit as Murphy v. Royal, 866 F.3d 1164 (10th Cir. 2017). 

[2] McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020).

[3] Brief for Petitioner at i, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020) (italics added).

[4] Brief for Respondent at I, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020) (italics added). Although McGirt has Creek heritage, he is an enrolled member of the Seminole Tribe, and is not a tribal member of the Muscogee (Creek) Nation. 

[5] See, e.g., Nebraska v. Parker, 136 S. Ct. 1072 (2016); Solem v. Bartlett, 465 U.S. 463 (1984).

[6] Solem v. Bartlett, 465 U.S. 463 (1984).

[7] Nebraska v. Parker, 136 S. Ct. 1072 (2016). 

[8] Bartlett, supra note 6, at 471 (stating that “Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment may have occurred.”).

[9] Parker, supra note 7, at 1081-1082.

[10] Id. at 1082 (quoting 522 U.S. 329, 356 (1998)). 

[11] Brief for Respondent, supra note 4, at 43. 

[12] Brief for United States as Amicus Curiae Supporting Respondent at 4, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4 2020). 

[13] Brief for Petitioner, supra note 3, at 40 (citing Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330, 341 (2008); Montana v. United States, 450 U.S. 544, 565 (1981) (identifying narrow circumstances in which Tribes have jurisdiction over nonmembers on fee land)). 

[14] Id. (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43 (1980)).

[15] See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987) (“We have repeatedly recognized the Federal Government’s longstanding policy of encouraging tribal self-government . . . This policy reflects the fact that Indian tribes retain attributes of sovereignty over both their members and their territory, to the extent that sovereignty has not been withdrawn by federal statute or treaty. The federal policy favoring tribal self-government operates even in areas where state control has not been affirmatively pre-empted by federal statute.”) (Internal quotations and citations omitted); See, e.g., Brief for United States as Amicus Curiae Supporting Respondent, Dollar General Corporation v. Mississippi Band of Choctaw Indians, 136 S. Ct. 2159 (2016); Brief for United States as Amicus Curiae Supporting Respondent, Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 134 S. Ct. 2024 (2014); Brief for the United States as Amicus Curiae in Support of Affirmance, Adoptive Couple v. Baby Girl, 568 U.S. 1224 (2013); Brief for the United States as Amicus Curiae in Support of Petitioner, Herrera v. Wyoming, 139 S. Ct. 1686 (2019); Brief of respondent United States, Nebraska v. Parker, 136 S. Ct. 1072 (2016); Brief for the United States as Amicus Curiae in Support of Respondents, South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998).

[16] See Brief for United States as Amicus Curiae Supporting Respondent, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4 2020); Brief for United States as Amicus Curiae, Sharp v. Murphy, No. 17-1107 (argued Nov. 27, 2018).

[17] Brief for Respondent, supra note 4, at 5. 

[18] Seee.g., Treaty with the Creek Indians, 14 Stat. 785 (1866); The Creek Allotment Act of 1901, 31 Stat. 861. 

[19] Murphy v. Royal, 866 F.3d 1164, 1233 (10th Cir. 2017) (“Applying Solem, we conclude Congress has not disestablished the Creek Reservation. Consequently, the crime in this case occurred in Indian country as defined in 18 U.S.C. § 1151(a)”). 

[20] Brief for United States, supra note 12, at 8 (quoting Census Office, U.S. Dep’t of the Interior, Report on Indians Taxed and Indians Not Taxed 284 (1894)).

[21] Id. at 5.

[22] Id.

[23] Reply Brief for Petitioner at 1, 3-5, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020). 

[24] Brief for the Muscogee Creek Nation as Amicus Curiae at 5, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020). 

[25] Id. at 7 (quoting Brief for National Congress of American Indians in Support of Petitioner at 10-13.)

[26] Id. (citing In re New York Indians, 72 U.S. 761, 766-68 (1866))

[27] Nebraska v. Parker, 136 S. Ct. at 1081.

[28] Mark Joseph Stern, Why Gorsuch Keeps Joining the Liberals to Affirm Tribal Rights, Slate Mag. (May 20, 2019),

[29] See Carol Goldberg, Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases at 1014, 70 Ohio State L. J. 4 (2010), (“From a tribal perspective, a crude win/loss analysis indicates that in the nine cases where she wrote the opinion for the Court, the tribes prevailed in only one and partly prevailed in another.”)

Case Notes

Case Note: Ysleta Del Sur Pueblo v. City of El Paso[1]

by: Felisha Adams[2]


The Federal Court did not have subject matter jurisdiction over a claim by the Ysleta Del Sur Pueblo[3] against the city of El Paso, Texas for lands obtained through a Spanish land grant.  Relief for the quiet title action could be sought under state law but not federal law.  Although Indian law and property law were contained within the court’s analysis, this decision relied heavily on civil procedure.

Facts and Background

The Ysleta del Sur Pueblo (herein referred to as “Tribe”) is a federally recognized Indian tribe and the only Pueblo in the state of Texas. The Tribe was uprooted from the Pueblo of Laguna in New Mexico to its current location. The relocation occurred by the Spanish in the 1600’s.  The Spanish then granted property to the Tribe in or around 1751. Subsequently, the United States and Mexico entered into the Treaty of Guadalupe Hidalgo, which conferred certain property rights to existing Mexican citizens. The Tribe has exercised self-governance since 1682.

The Tribe asserted ownership of 111.73 acres of real property (herein referred to as “Property”).  In doing so, the Tribe sought judicial confirmation of title to the property and to enjoin the City of El Paso (herein referred to as “City”) from claiming any right, title, estate, or interest in the Property. Both the City and Tribe motioned for summary judgement.


The Federal District Court granted a motion to dismiss in favor of the City solely on subject matter jurisdiction. The rest of the City’s motion was denied. The Tribe’s motion was dismissed without prejudice.  The property issue was not resolved in favor of the Tribe due to a procedural matter.

Relevant Law

This Indian property claim is a unique situation, given most tribes are not expected to be hailed into a state court.[4]  The Court ruled in favor of the City, relying on the areas of property law and Indian law principles.

Generally, the jurisdiction of federal courts is limited to powers authorized by the Constitution and by statue.[5]A case may be dismissed by a court that lacks subject matter jurisdiction[6]. A motion for dismissal for lack of subject matter may be made under Fed. R. Civ. P. 12(b)(1). For the Federal Court to exercise subject matter jurisdiction in this matter, the Tribe must establish (1) they are an Indian tribe; (2) a civil matter in controversy; and (3) that the matter arises under the Constitution, laws, or treaties of the United States.[7]

First, declaratory relief must be premised on an independent cause of action because a declaratory judgement is only a procedural device.[8]  A request to quiet title is an independent cause of action for declaratory relief.[9]  There are no federal quiet title causes of action, thus quiet title actions must be settled under state law.[10]

Second, as recognized by Congress, claims for Indian title through an explicit provision in a treaty or statute, and aboriginal title to land occupied by Indians since time immemorial, both fall exclusively under federal jurisdiction.[11] The Pueblo Lands Act of 1924 applies to New Mexico Pueblos.[12]


The primary issue was whether the third element of a claim arising under the Constitution, laws, or treaties of the United States was met.  The Tribe asserted that the Court had federal subject matter jurisdiction over its property claim based on the Tribe’s Indian status and non-aboriginal right of occupancy rights provided by the Treaty of Guadalupe Hidalgo.[13] The Court found there was not a federal question because (1) the cause of action may be resolved under state law, and (2) the Property is not a federally derived right, nor does it involve a federal issue.[14]

The Tribe’s cause of action for declaratory relief is based on state law.  The Court cited to case law that explained that the Treaty of Guadalupe Hidalgo does not explicitly or impliedly provide for private action.[15] Additionally, the Court reasoned that the case law sufficiently established that a claim dependent on a treaty does not automatically establish federal jurisdiction.[16]  The Tribe did not establish any other federal law or treaty cause of action that arose under the federal question doctrine.[17]  Thus, without more than the mere presence of a treaty to raise a federal question, the Tribe must raise a quiet title claim under state law.

The Tribe’s asserted right to the Property is not a federally derived Indian property right.  The Court distinguished the Tribe’s claim from the successful Indian title claim in Oneida Indian Nation v. City  of Oneida in three ways. First, the Tribe could not establish aboriginal title because of the Tribe’s relocation and land grant by Spain proved that they did not occupy the Property since time immemorial.[18] Second, the non-aboriginal right of occupancy derived from another sovereign and was not guaranteed by a United States treaty or statute.[19]

Third, there were no subsequent congressional acts to recognize or secure Property rights for the Tribe in the Treaty of Guadalupe Hidalgo.[20]  The Supreme Court has stated that matters relevant to the Tribe’s claim are solely within Congress’s power.[21]  Here, there were no claims by the Tribe showing subsequent negotiations with the United States that would have established special property rights similar to other tribes such as the Apache, Navajo and Ute Indians.[22] Further, since El Paso is not in New Mexico, the City is not subject to quiet title claims under the Pueblo Lands Act of 1924.[23]  The Nonintercourse Act may apply to this case, however the Tribe did not assert a Nonintercourse Act claim in its original pleading, and so the Court prohibited a new claim during the summary judgment stage in accordance with Fed. R. Civ. P. 15(a).[24]  Thus, without congressional recognition or guarantee, the Tribe did not establish federally derived Property rights.


The Tribe’s quiet title action does not arise under federal law because the controversy was not provided relief by the Treaty of Guadalupe Hidalgo nor any federal law.  The Tribe does not have a federally derived property right because Congress did not exercise its power to recognize or secure the Tribe’s right to the Property under the Constitution, laws, or treaties of the United States.  Without a federal right, there was no federal subject matter jurisdiction.  


The Treaty of Guadalupe Hidalgo does not explicitly provide Indians with a federal cause of action against states because the treaty does not have federally recognized or secured property rights.  For a federally recognized Indian tribe to bring an aboriginal or non-aboriginal Indian property controversy in a federal court, the Indian tribe must show that their property right is recognized and secured by the Constitution or independent statutes or treaties of the United States.

Lastly, the holding is without prejudice so there may still be an opportunity for the Tribe to establish a valid property right under federal jurisdiction, especially under subsequent federal statutes.  Additionally, there is no mention of any federal trust responsibilities, Indian policy, or other property principles such as reliance.  This case note is limited to the information specific to the case.   

[1] Ysleta Del Sur Pueblo v. City of El Paso, No. EP-17-CV-00162-DCG, 2020 U.S. Dist. LEXIS 6592 (W.D. Tex. Jan. 15, 2020).

[2] 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 and is a proud PLSI alumni.  Felisha is a member of the Navajo Nation who came from Iyanbito, NM to Albuquerque, NM to obtain an Indian law certificate in addition to her Juris Doctor. Her future plans include applying her business, cultural, educational, and legal experience towards supporting sovereignty and tribal economic development.

[3] For more information about Ysleta del Sur Pueblo visit their website at

[4] See Worcester v. Georgia, 31 U.S. 515 (1832) (ruling that state laws could not be imposed on Indian nations).

[5] Ysleta Del Sur Pueblo, supra note 1, at ¶ 4-5.

[6] Id

[7] Id. at 7-8

[8] Id. at 10-11.

[9] Id

[10] Id

[11] Id. at 14-17; See also Oneida Indian Nation v. Cty. of Oneida, 414 U.S. 661, 663 (1974) (holding that Indian title is a matter of federal law and can only be extinguished with federal consent). 

[12] Id. at 26.

[13] Id. at 3.

[14] Id. at 10.

[15] Id. at 10-13.

[16] Id. at 11-12.

[17] Id. at 13.

[18] Id. at 17-18.

[19] Id. at 18-19.

[20] Id. at 19-20.

[21] Id. at 21-22.

[22] Id. at 24.

[23] Id. at 26.

[24] Id. at 27-28.

Student Research Topics Uncategorized

Law of Indigenous Peoples Paper Topic: Max Spivak

Law of Indigenous Peoples: The Alaska Native Claims Settlement Act and the Tlingit and Haida

            To fulfill the writing seminar co-requisite of the Tribal Law Journal, I completed a brief profile of the Tlingit and Haida Tribes of Alaska and a larger objective review of the Alaska Native Claims Settlement Act (ANCSA). In my studies and work experiences I often see the term “American Indian and Alaska Native.” The distinction given to Natives in Alaska sometimes makes it seem like those communities are unique, and they certainly are, but their role in federal Indian law and tribal law must not be an afterthought. The paper stems from an interest in addressing this trend, an appreciation of the Alaskan land, and with respect to the people who have lived among it since time immemorial. I am not Native, and to ensure that my research and final paper did not take more than it gave back, I will maintain my relationship with Alaska Native communities in my future extra-curricular pursuits.  

            I extensively researched federal Indian law as it relates to Alaska Natives. I compiled relevant legislation (aside from just ANCSA), judicial opinions from all levels of the United States courts, administrative records, books, and scholarly commentaries. To highlight Native Alaskan voices, I incorporated several published interviews and local news articles, too. I conducted my research within the federal Indian law and tribal law stacks at the UNM School of Law library, and I was fortunate to also take advantage of the legal and undergraduate libraries at UCLA (whose law school used to publish the UCLA-Alaska Law Review). I also spent considerable time writing at the USC School of Law library. I relied on internet resources, but I also delved deep into many print materials that had never been digitized. 

To provide some direction for the paper, I drew upon the following Felix Cohen quote: “Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.”[1] To temper this claim, I introduced David E. Wilkins’ more contemporary response to the metaphor: “[It] “situates indigenous nations in an extremely vulnerable and abused role . . . [notwithstanding] that Native peoples have often been used in federal social experiments.”[2] What drove the paper, and the principle to which Wilkins harkened, is “that while the means we use may be molded by the ends we seek, it is the means we use that mold the ends we achieve.”[3] I then offered the following questions: “If the Indian is the miner’s canary used to measure the levels of toxicity—or even just measuring the density—in the political air, no matter its usefulness, its life is often forsaken for the benefit of others. Is the Alaska Native Claims Settlement Act (ANCSA) indicative of legislative means achieving undesirable ends? Almost 40 years after the passage of ANCSA, do its effects indicate that Native Alaskans were forsaken? What does ANCSA, as the metaphorical mine, and the treatment of Alaska Natives, the metaphorical canary, signal about politics and democracy in the United States?” Throughout the paper I intended to keep the spirit of objectivity and I integrated differing perspectives toward ANCSA’s legacy.  

            The structure of the paper included the tribal profile followed by the ANCSA review. I introduced Alaska Native ethnic communities and geography, in general, and then focused on the history and composition of the Tlingit and Haida tribes, in particular. I addressed the impact of colonization on the people, land, and animals in southeast Alaska, and discussed (publicly available) Tlingit and Haida elements of traditional law and contemporary governance. The following section about ANCSA began with a comprehensive overview of the history of the legislation, its purported purposes, and the immediate impacts upon ratification. One of the very few subjective stances that I made in the paper (for the intention was an objective review), posited that Congress’ desire to rapidly and widely settle hundreds of outstanding Native land claims outside of the court system was short-sighted. The ANCSA section then presented the Sealaska Corporation, the ANCSA-mandated Alaska Native regional corporation representing Tlingit and Haida interests. The next sub-section was titled “Culture and Land” and analyzed ANCSA’s impact on them; the following sub-section was titled “Economics”; and the penultimate sub-section was “Sovereignty” with a sub-sub-section on data sovereignty. 

The conclusion of the paper noted that 

the canary did not have much of a choice; it was not lowered into the mine by its fellow birds, nor did it receive a profit for its work, nor was it thrust into its sacrificial role with such comprehensive research and ongoing political thought. Cohen’s means and ends principle, however, may be more fitting. Often times there are several types of ‘means’ that can be employed, and the chosen means may induce different ends than others.

Still, though, “the corporative means under ANCSA created generational prosperity for many, but were there other means that could have prevented major drawbacks? If so, would they have been as financially lucrative or all-inclusive in settling Native Alaskan land claims? Could each claim have been settled or adjudicated deliberately?” Oil was discovered at Prudhoe Bay in northern Alaska years before ANCSA was passed; the discovery catalyzed lobbyists, energy companies, and politicians, and it hastened the passage of the act. The role of Native Alaskan interests in ANCSA is the crux of widespread debate, and that debate is at the forefront of my ANCSA review. 

[1] Felix S. Cohen, The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucracy, 62 Yale L.J. 348, 390 (1953).

[2] Felix S. Cohen, On the Drafting of Tribal Constitutions xii (David E. Wilkins ed., 2007).  

[3] Id. (quoting Cohen, supra note 1). 

Student Research Topics

Law of Indigenous Peoples Paper Topic: Felisha Adams

Felisha Adams, Navajo Business Site Leasing Policies: Measuring Up to Diné Needs? (2019)

This article has been created in response to the perceived difficulty in operating successful businesses on the Navajo Nation and as an effort to support tribal self-governance through economic development. There is well documented case law, history, and policies that evidence how the tribal attempts to provide for self as an individual, and as a nation, have been oppressed by imprudent and inequitable relations with foreigners.  Additionally, decades of statistics exhibit disturbing deprivations of the people, their land, and their resources.  The Navajo Nation is one of many tribes committed to remediate damages and restore hozho, alternatively defined as peace and stability.  The commercial business site leasing enactments by the United States Congress and the Navajo Nation are an affirmative step towards economic resolutions that fit the tribe’s unique needs. The Navajo Nation Trust Land Leasing Act of 2000 delegates business site leasing regulatory authority from the Bureau of Indian Affairs to the Navajo Nation. The Navajo Nation Business Site Leasing Regulations of 2005 accepts and executes the regulatory authority.  The tribe has made progress since 2000, however, economic indicators suggest there is still room for improvement, including policy revision.  

As a tribal member and stakeholder, I find that it is critical to conduct this analysis through an indigenous perspective.  First, the document explores historical to modern interpretations of Navajo fundamental law, governance, land, and commercial development to conceptualize a Navajo standard of economic success. It is through the Navajo standard that legislative acts, business site leasing management, and preparation for the future are analyzed to answer whether current business site leasing policies align with established Diné fundamental law.  The research also focused on determining whether the Act fulfills the Navajo Nation’s needs or if is there a greater need for policy change. In an attempt to provide measurable answers, the document also provides suggestions for ways to improve the process to better provide benefits for stakeholders.  The research for this document consisted of various academic, historical, legal, business, and tribal resources.

As one of the largest tribes in North America, the Navajo Nation’s unique responsibilities are magnified by the court system, land base, political structure, and population size.  The next element of this document explores governmental roles and responsibilities in addition to relevant business site leasing laws.  Contrary to impressions of a system difficult to navigate, much of the information used for this research is available to the public. The public documents regarding governance, demographics, economic development and case law are supplemented by widely acclaimed published material.  The published material was utilized to highlight cultural information specific to  the Navajo Nation as well as indigenous tribes collectively. Lastly, the research is supplemented by the author’s educational and professional background.  The conclusion provides that the tribe’ exercise of authority is beneficial to the Navajos but policy modifications could increase efficiency.