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.

Case Notes

Case Note: Kang v. Chinle Family Court (2018)


Kang v. Chinle Family Court involves service of process requirements in divorce proceedings between a Navajo and a non-Navajo spouse in tribal court.[1] This case demonstrates the fundamental Navajo principles of Diné bi beenahaz’áanii as they apply to the jurisdictional laws of Navajo courts over non-Navajo spouses. In this case, the Supreme Court of the Navajo Nation clarified the concept of Navajo customary due process as rooted in the fundamental principle of k’e

Summary of Relevant Facts & Procedural History

On December 27, 2006, Mun Kang (“Petitioner”) and Chasity Kang (“Real Party in Interest” or “RPI”) were married in Virginia.[2] They lived together in Virginia until RPI left the family home with their children on March 18, 2017. On May 15, 2017, RPI filed a petition for divorce in Chinle Family Court (CH-FC-233-17), which she later voluntary withdrew.[3] On June 7, 2017, Petitioner filed for divorce in Virginia state court.[4] RPI was served and initially appeared telephonically, but thereafter she did not participate in the proceedings.[5]  

On June 20, 2017, RPI re-filed her divorce petition in Chinle Family Court (CH-FC-292-17); she did not inform the Chinle court of the previously filed Virginia divorce action nor was she able to serve Petitioner by personal service or certified mail.[6]Instead, RPI informed the court that Petitioner was served by publication in the Navajo Times.[7]

Meanwhile, on November 2, 2017, the Virginia court entered a Final Divorce Degree.[8] Then, on November 3, 2017, RPI moved for default judgement in Chinle Family Court for Petitioner’s failure to plead or otherwise defend against the action.[9]Subsequently, on February 6, 2018, the Chinle Family Court issued a default judgement dissolving the marriage, dividing property, and awarding custody to RPI.[10] However, On May 4, 2018, Petitioner filed a motion to set aside the default judgement alleging fraud/misrepresentation under Rule 60(c)(3) of Navajo Rules of Civil Procedure and a motion for a new trial under Rule 59(g).[11] The Chinle Family Court denied the motion for a new trial but did not rule on the motion to set aside the default judgement.[12]

Consequently, on August 17, 2018, Petitioner filed this suit alleging that the Chinle Family Court refused to rule on the motion to set aside the default judgement, which left him without an adequate remedy at law to address his arguments.[13]


The Supreme Court of the Navajo Nation held that jurisdiction of the Chinle Family Court was improper as the court failed to comply with service of process requirements and Navajo customary due process.[14] Under Rule 4(e)(3) of the Navajo Rules of Civil Procedure, “service by publication shall be made in one of three ways: 1) by publication of the summons in the Navajo Times, OR 2) in the newspapers where the person resides, OR 3) in the newspapers of the person’s last known residence for at least one week for four successive weeks.”[15] Furthermore, the Navajo Nation courts must implement service of process in light of the fundamental principle of k’e.[16]   

Summary of Analysis

In its determination, the Court rejects the Chinle Family court’s arguments that Petitioner was properly served via publication in the Navajo Times.[17] The Court reasoned that Chinle Family court erroneously interpreted Rule 4(e)(3) as requiring publication in the Navajo Times while rendering other avenues of publication as optional.[18] Instead, the Court held that Rule 4(e)(3) is properly interpreted as allowing for any of the three options for service by publication.[19] However, service by publication must be implemented in light of the fundamental principle of k’e, which “fosters fairness through mutual respect.”[20]

The Court further reasoned that the Chinle Family court failed to demonstrate how service via publication in the Navajo Times adequately fulfilled the requirements of procedural due process.[21] Although the Navajo Nation is not subject to due process requirements under federal or statutory Navajo law, Navajo customary due process requires “notice and an opportunity to present and defend a position” because it is recognized that k’e informs the Court’s interpretation of procedural due process.[22] Consequently, the principle of k’e required publication in the newspaper where Petitioner resided instead of the Navajo Times because it was not likely that Petitioner would have seen the publication.[23] Also, k’e required that Petitioner “as a hadane (in-law to the Diné) to be treated with fairness and respect to ensure notice and opportunity to defend.”[24]


Thus, the Court issued a Writ of Prohibition against Chinle Family Court.[25] The default judgement of February 6, 2018 was rendered void ab initio and the Chinle Family Court was ordered to dismiss RPI’s re-filed divorce petition (CH-FC-292-17) for lack of jurisdiction.[26]

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

[1] Kang v. Chinle Family Ct., No. SC-CV-37-18, 2018 WL 5099218, at *167 (Navajo Sept. 21, 2018). 

[2] Id. at 167. 

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 168. 

[14] Id. at 169. 

[15] Id. at 168-69. 

[16] Id. at 169. 

[17] Id. at 168-69. 

[18] Id. 

[19] Id.                                        

[20] Id. at 169. 

[21] Id. 

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 170. 

[26] Id. 

Case Notes

Case Note: Nouri v. Crownpoint Family Court


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

Summary of Relevant Facts & Procedural History

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

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


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

Summary of Analysis

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

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

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

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


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

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

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

[2] Id. at 51-52.

[3] Id. at 52.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 52-53.

[10] Id. at 53.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 55.

[18] Id.

[19] Id.

[20] Id. at 53, 55.

Case Notes

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

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

Summary of Facts

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

Procedural History

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

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

Summary of Analysis

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

[2] Id. at 1703.

[3] Id. at 1693.

[4] Id.

[5] Id.

[6] Id.

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

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

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 1700.

[13] Id. at 1694.

[14] Id. at 1697.

[15] Id. at 1698.

[16] Id. at 1694.

[17] Id. at 1697.

[18] Id.

[19] Id. at 1695.

[20] Id.

[21] Id.

[22] Id. at 1698.

[23] Id. at 1700.

[24] Id. at 1699.

[25] Id.

[26] Id. at 1701-02.

[27] Id.

[28] Id. at 1702.

[29] Id.

[30] Id.

[31] Id. at 1703.

[32] Id.

[33] Id.

Case Notes

Case Note: Green Tree Servicing, LLC v. Duncan

Case Note: Green Tree Servicing, LLC v. Duncan


            This case note analyzes two related issues addressed in Green Tree Servicing, LLC v. Duncan:

1. Does an otherwise enforceable arbitration agreement become unenforceable under Navajo Nation law if it violates Navajo Nation public policy?[1]

2. When does an arbitration clause violate Navajo public policy?


            In 1994, Georgiana Duncan bought a mobile home, which was financed through a loan from Conseco Finance Corporation (Conseco).[2] The financing contract included a clause stating that all claims arising from the contract would be resolved through arbitration. Specifically, the arbitration clause stated, in all capital letters, “THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY ASSIGNEE (AS PROVIDED HEREIN).”[3]

            Conseco later became Green Tree Servicing, LLC (“Green Tree”).[4] Ultimately, Green Tree filed suit in Shiprock District Court to repossess Duncan’s mobile home.[5] Duncan filed counterclaims, including fraud.[6] The Shiprock District Court dismissed Duncan’s counterclaims, ruling that the court lacked jurisdiction.[7] Duncan appealed to the Navajo Nation Supreme Court.[8] In its brief to the Navajo Nation Supreme Court, Green Tree argued that the contract’s arbitration clause barred Duncan’s fraud claim.[9]


            The Court held the mobile home financing contract’s arbitration clause was unenforceable because it violated Navajo Nation public policy.[10]


            The Court determined the arbitration clause violated public policy because it was fundamentally unfair.[11] To reach this conclusion the court looked to Navajo statutory and fundamental law.

            Looking to Navajo statutes, the Court cited the unconscionability provision of the Navajo Uniform Commercial Code, which provides that a court can refuse to enforce a contract if it determines the contract “[is] so one-sided as to be unconscionable[.]”[12]

            The Court further looked to four principles of Navajo Fundamental Law to determine whether the clause was so unfair that it violated Navajo Nation public policy. First, the Court stated that the Navajo maxim of “házhó’ógó mandates more than the mere provision of an English form stating certain rights … and requires a patient, respectful discussion … before a waiver is effective . . . Házhó’ógó requires a meaningful notice and explanation of a right before a waiver of that right is effective.”[13]

            Second, the Court stated that the principal of nábináheezlágo be t’áá lahjį algha’ deet’ą means that an agreement can only be final if “all participants agree that all of the concerns or issues have been comprehensively resolved[.]”[14] Third, during negotiations, each side must meet the requirement of ííshjání ádooniíl, “making something clear or obvious.”[15]

            Finally, the Court cited the principle of áádóó na’nile’dii éi dooda, that “delicate matters and things of importance must not be approached recklessly, carelessly, or with indifference to consequences.”[16] Thus, Navajo decision-making should be “practical and pragmatic . . . the result of talking things out.”[17] People should therefore not be pushed to a decision without adequate explanation.[18]

            Green Tree, however, made two arguments to uphold the arbitration clause. First the Navajo Nation Code “includes provisions encouraging arbitration.”[19] Second, Navajo Fundamental Law recognizes that words are sacred.[20] Green Tree thus implied that the court should hold Duncan to her word, which she gave by signing the arbitration agreement.

            The Court, however, noted that it “balances the value of arbitration agreements with the value of fairness.”[21] It can be inferred from the Court’s holding that the value of enforcing the arbitration clause was outweighed by the unfairness of the clause.

            Accordingly, the Court found (1) an otherwise enforceable arbitration agreement is unenforceable under Navajo Nation law if it violates Navajo Nation public policy, and (2) the arbitration clause violated Navajo Nation public policy because it was fundamentally unfair and therefore inconsistent with principles of Navajo Fundamental Law.[22] In sum, this case provides Navajo consumers a remedy in Navajo court to void fundamentally unfair arbitration clauses that lenders do not adequately explain to the consumer.

Sean McKenzie is a second-year law student at the University of New Mexico. He is originally from Gallup, New Mexico.

[1] Green Tree Servicing, LLC v. Duncan, No. SC-CV-46-05, 2008 WL 5435566, 637 (Navajo Aug. 18, 2008).

[2] Id. at 636.

[3] Id. at 640.

[4] Id. at 636.

[5] Id.

[6] Id. at 636, 638.

[7] Id. at 637.

[8] Id.

[9] Id.

[10] Id. at 642.

[11] Id. at 641-42.

[12] Id. at 640.

[13] Id. at 641 (internal quotes and cites omitted).

[14] Id.

[15] Id.

[16] Id. at 642.

[17] Id.

[18] Id.

[19] Id. at 640.

[20] Id.

[21] Id. at 641.

[22] Id. at 642-43.

Case Notes

Case Note: United States v. Sterling Islands, Inc.

Case Note: United States v. Sterling Islands, Inc.[1]


            On May 20, 2019, the Honorable Judge James O. Browning of the United States District Court for the District of New Mexico, issued a notable Memorandum Opinion and Order in the case of United States v. Sterling Islands.[2]  The Opinion expands the list of criminal penalties facing those who have engaged in acts relating to deceptively selling foreign products as if those products were Native American made.  Specifically, the Court holds that regulation 19 C.F.R. § 134.43[3] constitutes a law for purposes of 18 U.S.C. § 545[4] smuggling.  The issues addressed in this Opinion were ones of first impression within the Tenth Circuit.[5]  Overall, this Opinion provides a potentially powerful new weapon in the arsenal of those prosecuting the sale of fraudulent Native American-style jewelry, arts, and crafts in New Mexico.

Summary of Relevant Facts and Procedural History:

            The case of United States v. Sterling Islands is still ongoing.[6]  The Court draws its facts from the Indictment for purposes of its Opinion; the Court specifically explains that these facts have not been established as true in this Opinion and Order.[7]  As a result, this Note will avoid an in-depth evaluation of the facts alleged and instead focus on the issues of law discussed in the Opinion.  This first requires an understanding of what charges were directed at Defendants and how they challenged certain charges to create these questions of law.      

Overall, the Indictment in this case alleges that “Defendants imported Native American-style jewelry, arts, and crafts from the Philippines into the United States.”[8]  The Defendants challenged one partial, and two full, counts of the Indictment, in a 12(b) motion.[9]  The Defendant’s 12(b) motion argues that these counts fail to charge them with qualifying as laws and instead rely on an unqualifying civil regulation.[10] It is therefore necessary to understand what the Defendants in this case were charged with, to understand the Court’s holding.

Count 1 of the Indictment, in part, charges all Defendants with committing “Conspiracy to Defraud the United States, by committing the offenses of smuggling goods into the United States.”[11]  Counts 2 and 3 of the Indictment then charged specific Defendants with importing, receiving, buying, concealing, selling, and facilitating the transportation of Native American-style jewelry, arts, and crafts, in an illegal manner.[12]  The Indictment alleged that these acts were in violation of 18 U.S.C. § 545.[13]  18 U.S.C. § 545 prohibits smuggling goods into the United States, by stating, in part:

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported into the United States contrary to law…[s]hall be fined under this title or imprisoned not more that 20 years, or both.[14]

To violate 18 U.S.C. § 545 therefore requires that the merchandise at issue be “contrary to law” in some way.[15]  Also of note, are the harsh penalties available for violations of this section. 

The Indictment alleged that the merchandise at issue in this case was contrary to regulation 19 C.F.R. § 134.43, promulgated by the Department of the Treasury.[16]  19 C.F.R. § 134.43 sets out requirements for how foreign produced “Native American-style jewelry” and “Native American-style arts and crafts” are to be marked with their country of origin.[17]  19 C.F.R. § 134.43 states that “’Native American-style jewelry’ must be indelibly marked with the country of origin by cutting, die-sinking, engraving, stamping, or some other permanent method.”[18]  The same requirements are placed on “Native American-style arts and crafts.”[19]   The regulation defines affected products by stating:

1) Native American-style jewelry is jewelry which incorporates traditional Native American design motifs, materials, and/or construction and therefore looks like, and could possibly be mistaken for, jewelry made by Native Americans, 2) Native American-style arts and crafts are arts and crafts, such as pottery, rugs, kachina dolls, baskets and beadwork, which incorporate traditional Native American design motifs, materials and/or construction and therefore look like, and could possibly be mistaken for, arts and crafts made by Native Americans.[20]

While exceptions apply for instances of infeasibility and goods are produced in NAFTA countries,[21] these definitions are still incredibly broad.    

Defendants in this case argued that 18 U.S.C. § 545 is ambiguous as to whether Congress intended the “contrary-to-law element to extend to regulations…specifically, to regulations providing only civil remedies.”[22]  Defendants argue that because 18 U.S.C. § 545 is ambiguous in its meaning, and because 19 C.F.R. § 134.43 imposes only civil penalties for not including required markings, that the Rule of Lenity should be applied.[23]  The Rule of Lenity dictates that “[w]hen interpreting a criminal statute, ‘it must be strictly construed, and any ambiguity must be resolved in favor of lenity’” to the defendant(s).[24]


            The Court disagreed with the Defendant’s arguments, instead holding that “the statute’s plain meaning at the time of enactment unambiguously indicates that ‘law’ for 18 U.S.C. § 545’s purposes is an unqualified term that encompasses all statutes and agency-promulgated regulations.”[25]  The Court clarifies that 19 C.F.R. § 134.43 constitutes a law for purposes of 18 U.S.C. § 545, and therefore the portions of the Indictment’s first three Counts that rely on this construction do not fail to charge Defendant’s with a valid criminal violation.[26]  The Court limits this by holding that for violations of 19 C.F.R. § 134.43 to be “contrary to law” requires that they also meet the “mens rea” requirements imposed by 18 U.S.C. § 545.[27]

The Court’s Analysis and Reasoning:

            The Court reaches this holding by “employing the ‘well-established principles of statutory construction.’”[28] The Courts analysis begins by reviewing what other Circuits have held on similar issues.  After analyzing each of those decisions however, the Court declines to follow any of them.  The Court instead examines the meaning of the statute at the time it was enacted and finds that its plain meaning is unambiguous.[29] 

            First, the Court examines the approach taken by the Fourth Circuit Court of Appeals in the case of United States v. Mitchell.[30]  The Fourth Circuit there held that 18 U.S.C. § 545’s “‘contrary to law’ provision…encompasses substantive or legislative type regulations that have the force and effect of law.”[31] The Court in Mitchell draws on the case of Chrysler Corp. v. Brown,[32] for a three part test to determine whether a regulation has the “force and effect of law.”[33]  To have the “force and effect of law”  under this test, a regulations must: 1) “be ‘substantive’ or ‘legislative-type’ rules of agency organization, procedure, or practice,” 2) “have been promulgated pursuant to a congressional grant of quasi-legislative authority,” and 3) “have been promulgated in conformity with congressionally-imposed procedural requirements such as the notice and comment provisions of the Administrative Procedure Act.”[34] 

While the Court in this case finds 19 C.F.R. § 134.43 meets the requirements of the Chrysler/Mitchell test, meaning it is a regulation having the “force and effect of law,”  it concludes that this test does not apply under these circumstances.[35]  Although 19 C.F.R. § 134.43 passing the Chrysler/Mitchell test is therefore dicta, it lends support to the idea that the Defendants had notice 19 C.F.R. § 134.43 was a law for purposes of 18 U.S.C. § 545.

The Court next examines the Ninth Circuit’s approach to a similar issue in United States v. Alghazouli.[36]  There, the Ninth Circuit underwent a process of statutory construction for 18 U.S.C. § 545.[37]  It determined that the time of the statute’s enactment was 1875 and construed the plain meaning of it according to that time.[38]  Under this analysis, the Ninth Circuit held that “Congress intended the term ‘law’ in [18 U.S.C.] § 545 to include a regulation when, but only when, a statute…specifies that a violation of that regulation constitutes a crime.”[39]  This result therefore would find that 19 C.F.R. § 134.43 is not a “law”  for purposes of 18 U.S.C. § 545; 19 C.F.R. § 134.43 does not specify that violating it constitutes a crime.[40] 

The court in Sterling Islands declines to follow this reasoning, as it determines 18 U.S.C. § 545 was enacted in 1866, not 1875.[41]  The Court does so by determining 18 U.S.C. § 545 had a predecessor act, with substantially the same language, enacted in 1866.[42]  The Court then turns to a revised edition of “An American Dictionary of the English Language” from 1865, to determine the plain meaning of “law” in this statute, instead of the later edition used by the Ninth Circuit.[43]  In this definition, it finds law is defined to specifically include “a fixed regulation.”[44]  Further, the Court adds that the “fifth edition of Black’s Law Dictionary [published in 1979] expressly includes Secretary of the Treasury regulations within its definition of law;” this edition is published 25 years before the 8th edition the 9th circuit cites and is similar to earlier editions in its not limiting the definition of law to mean statutes.[45]  For these reasons, the Court finds that the plain meaning of 18 U.S.C. § 545 includes regulations.[46] 

Finally, the Court examines the case of United States v. Izurieta from the Eleventh Circuit Court of Appeals.[47]  In Izurieta, the Court “concluded that 18 U.S.C. § 545 [was] grievously ambiguous [specifically] regarding whether civil regulations constitute laws.”[48]  As a result of this, the Eleventh Circuit there determined that the rule of lenity should be applied to avoid “charging violation[s] of [] civil regulation[s] as [] crimes under 18 U.S.C. § 545.[49] 

Since the Court in this Case already determined through statutory construction that 18 U.S.C. § 545’s ‘contrary to law provision was unambiguous,[50] they do not find that the rule of lenity is proper.[51]  The Court holds that because the ‘contrary to law provision was not qualified by Congress at the time of its enactment, “all agency-promulgated regulations fall within its ambit, including 19 C.F.R. § 134.43.”[52] 


In this manner the Court find that far more regulations are potentially included for purposes of what constitutes a law to be violated for 18 U.S.C. § 545; there exists now an expansive number of regulations that, if violated willfully,[53] may be charged criminally within the jurisdiction of the Federal District Court for the District of New Mexico.  The penalties it imposes are nothing to be discounted.  Under 18 U.S.C. § 545, penalties extend all the way to including the imposition of a combination of fines and 20 years of prison time for violators.[54]  This is all made more menacing by the broad definitions of what goods fall under the restrictions laid out in 19 C.F.R. § 134.43.[55]

Ultimately, the holding of this Opinion and Order reaches what appears to be a just result for the facts alleged.  At first glance, it appears that Defendants in this case, as a practical matter, lacked notice that their actions constituted smuggling in violation of 18 U.S.C. § 545; additional analysis, as the Court has done in this case, demonstrates otherwise for legal purposes.  Even for practical reasons notice appears to be present.  The harms have been widely recognized for importing goods designed to capitalize on markets seeking genuine Native American produced goods, and is criminalized specifically in other ways.[56]  Additionally, the Court goes out of its way in this case to clarify that 18 U.S.C. § 545 criminalizes only willful or knowing violations of  19 C.F.R. § 134.43.[57]  This seems to exclusively criminalize instances where persons already know they are selling goods in a manner that violates the law; as this case demonstrates, smuggling illegal goods to the United States has been criminalized for well over a century.[58]  With 18 U.S.C. § 545 already criminalizing other actions barred explicitly by regulation,[59] it seems the only notice lacking was a case of precedent in this jurisdiction explicitly finding 19 C.F.R. § 134.43 constituted a law for purposes of 18 U.S.C. § 545.  Ultimately, Sterling Islands may prove to be another substantial victory for those hoping to stop the deceptive sale of Native American goods in New Mexico. 

Peter Armijo is a 3L at the University of New Mexico School of Law.  Peter was born in Albuquerque and grew up in Los Alamos. Peter looks forward to continuing to live and work in New Mexico.

[1]United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027 (D.N.M. May 20, 2019).

[2] Id.

[3] 19 C.F.R. § 134.43 (1996).

[4] 18 U.S.C. § 545 (2006).

[5] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1050 (D.N.M. May 20, 2019).

[6] Id.

[7] Id. at 1029.

[8] Id. at 1030.

[9] Id. at 1029.

[10] Id.

[11] Id. at 1030.

[12] Id. at 1032.

[13] Id. at 1033.

[14] 18 U.S.C. § 545 (2006) (emphasis added).

[15] Id.

[16] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1033 (D.N.M. May 20, 2019).

[17] 19 C.F.R. § 134.43 (1996).

[18] Id.

[19] Id. Note, the wording is changed slightly to say “means of cutting” and “other equally permanent method.”

[20] Id.

[21] Id.

[22] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1033 (D.N.M. May 20, 2019).

[23] Id.

[24] Id. at 1038 (quoting United States v. Garcia, 939 F. Supp. 2d 1216, 1227 (D.N.M. 2013)).

[25] Id. at 1052.

[26] Id. at 1029.

[27] Id. at 1038-1039, 1058-1059.

[28] Id. at 1050 (quoting Colo. High Sch. Activities Ass’n v. Nat’l Football League, 711 F.2d 943, 945 (10th Cir. 1983)).

[29] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1052 (D.N.M. May 20, 2019).

[30] United States v. Mitchell, 39 F.3d 465 (4th Cir. 1994).

[31] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1042 (D.N.M. May 20, 2019) (quoting United States v. Mitchell, 39 F.3d at 476).

[32] Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705 (1979).

[33] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1035 (D.N.M. May 20, 2019).

[34] United States v. Mitchell, 39 F.3d at 470.

[35] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1059 (D.N.M. May 20, 2019).

[36] United States v. Alghazouli, 517 F.3d 1179 (9th Cir. 2008).

[37] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1046 (D.N.M. May 20, 2019).

[38] Id. at 1050-1051.

[39] United States v. Alghazouli, 517 F.3d 1179, at 1187 (9th Cir. 2008).

[40] See 19 C.F.R. § 134.43 (1996).

[41] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1050 (D.N.M. May 20, 2019).

[42] Id. at 1051 (See also Stewart v. khan for the proposition that a “change of language in a revised statute will not change the law from what it was before, unless it be apparent that such was the intention of the legislature”). 

[43] Id.

[44] Id.

[45] Id. at 1046-1047, 1051-1052, 1056-1057.

[46] Id. at 1052.

[47] United States v. Izurieta, 710 F.3d 1176 (11th Cir. 2013).

[48] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1052 (D.N.M. May 20, 2019).

[49] Id.

[50] Id.

[51] Id. at 1059.

[52] Id. at 1056

[53] Id. at 1038-1039, 1058-1059.

[54] 18 U.S.C. § 545 (2006).

[55] 19 C.F.R. § 134.43 (1996).

[56] See e.g., 18 U.S.C. § 1159 (2010).

[57] United States v. Sterling Islands, Inc., 391 F. Supp. 3d 1027, 1038-1039, 1058-1059 (D.N.M. May 20, 2019).

[58] Id. at 1050.

[59] See e.g., United States v. Mitchell, 39 F.3d 465 (4th Cir. 1994).

Case Notes

Case Note: United States v. Antonio

Case Note: United States v. Antonio

United States v. Antonio, No. 18-2118, 2019 U.S. App. LEXIS 26657 (10th Cir. Sept. 4, 2019).


United States v. Antonio involves federally recognized tribal land less than 20 miles away from the University of New Mexico School of Law. This case shows the complexities of criminal jurisdiction on tribal land, and the controversies of what “tribal land” is under federal law. In this case, the 10th Circuit Court of Appeals considered the unique history of the Pueblo of Sandia and affirmed the lower court’s judgment that the criminal act at issue took place within the exterior boundaries of the Pueblo. The Court held that the lower federal district court had jurisdiction to hear the case, and the conviction against the Appellant was proper.


The United States is the Plaintiff-Appellee. The Defendant-Appellant is Jeffrey Antonio (“Antonio”). Antonio is an enrolled member of the Pueblo of Laguna, and therefore federal jurisdiction applies if the act at issue occurred on land classified as Indian Country. For offenses occurring within Indian Country, any Indian who commits an offense against the person or property of another Indian or other person is subject to federal jurisdiction.[1]

The United States argued that federal jurisdiction applied because the act took place on Indian Country. Antonio argued that federal jurisdiction was improper because the land on which the act took place was not Indian Country. This case was argued before Chief Judge Timothy M. Tymkovich, Senior Judge David M. Ebel, and Judge Carlos F. Lucero of the 10th Circuit Court of Appeals. Chief Judge Tymkovich wrote the opinion.


The Appellant was under the influence of alcohol while driving and crashed his vehicle into another at the intersection of New Mexico Highway 313 and Wilda Drive, a few miles north of Albuquerque. A passenger in the other vehicle was killed. The land where the accident occurred is owned by a non-Indian man, Pedro C. Garcia, who received the tract of land from an Act of Congress in the early 1900s.

Procedural History

In March of 2016, a federal grand jury in the United States District Court for the District of New Mexico indicted the Appellant on one count of second-degree murder.[2] “The United States filed a motion in limine asking the district court to rule that the site of the accident was in Indian Country to conclusively establish federal jurisdiction.”[3] The motion was also filed in the District of New Mexico.[4] The Appellant filed a motion to dismiss for lack of federal subject matter jurisdiction. The lower court denied the motion to dismiss.


The 10th Circuit Court of Appeals affirmed the District of New Mexico’s judgment. The four holdings included that (1) the federal district court had jurisdiction to hear the case because the offense occurred in Indian County covered under the Indian Pueblo Lands Act Amendments of 2005; (2) the district court’s preliminary jurisdictional ruling prior to issuing jury instructions was proper; (3) the jury had sufficient evidence to convict the Appellant; and (4) there was no plain error as the district court properly instructed the jury that it must not consider whether the Appellant was guilty of involuntary manslaughter unless it found him not guilty of second-degree murder.[5]


Establishing jurisdiction was important for all four holdings. To do so, the court cited 18 U.S.C. section 1151, titled, “Indian country defined,” the main authority for federal criminal jurisdiction issues on tribal land. The court also cited United States v. Sandoval, 231 U.S. 28, 34 S. Ct. 1, 58 L. Ed. 107 (1913), which was a precursor to the Pueblo Lands Act of 1924, “determin[ing] that Pueblo lands were within Indian Country and subject to federal jurisdiction even though the lands were not formally designated as a reservation.”[6] The court then emphasized that the later Indian Pueblo Lands Act conferred federal jurisdiction and “clarified . . . [that] the United States has jurisdiction ‘over offenses committed anywhere within the exterior boundaries of any grant from a prior sovereign, as confirmed by Congress’ or the Court of Private Land Claims to a Pueblo Indian tribe of New Mexico.”[7] As the extensive historical reviews in the opening brief,[8] answer brief,[9] reply,[10] district court opinion,[11] and 10th Circuit ruling[12] established, “[o]n May 16, 1748, [Spanish] Lieutenant General Don Bernardo Antonio de Bustamente y Tagle . . . conveyed a land grant to the Sandia Pueblo.”[13] In Lieutenant General Bustamante’s memorialized words, it is clear that the grant came from a “prior sovereign,” and therefore Sandia Pueblo’s land history satisfies the jurisdictional pre-requisite contained in the 2005 amendments. The boundaries were later confirmed by an act of Congress in 1858.[14]

The Indian Pueblo Lands Act Amendments of 2005 addressed the issue of checkerboard jurisdiction, because after Sandoval and despite the passage of 18 U.S.C. section 1151, non-Indian holdings transferred after the 1924 Act “would not necessarily be subject to federal jurisdiction.”[15] The jurisdictional issue arose as to whether the accident occurred on land covered by the Indian Pueblo Lands Act Amendments of 2005 because the precise tract of land at issue is known as Private Claim 364, which is owned by a non-Indian individual, Pedro C. Garcia, after it was confirmed to him “‘under the provisions of the Act of Congress on June 7, 1924 (43 Stat. 636)’”.[16]  

            The United States argued that Mr. Garcia’s land was still within the exterior boundaries of the Sandia Pueblo, despite Mr. Garcia privately owning the land. Antonio argued that the 1858 congressional confirmation of land “should be construed as only the relinquishment of the United States’s title and not as a confirmation of the exterior boundaries.”[17] The court accepted the United States’s argument, holding that “[b]ecause the offense took place on Private Claim 364, it took place within the exterior boundaries of the original land grant by a sovereign . . . [and] Congress had confirmed the boundary . . .”[18] It was a straightforward textual interpretation of the 2005 amendments and the affirmation was a substantially shorter opinion than the district court’s. Considering jurisdiction was no longer an issue, the Appellant’s argument regarding jury instructions was rejected, and so were his arguments about the lack of sufficient evidence and good cause.


            The implications of this case are important for the tribes of New Mexico and tribes who “received” their land from a prior sovereign. The outcome is especially important because the Pueblo of Sandia retained land that was disputed by the actions of the losing party. The 1748 land grant and the Indian Pueblo Lands Act Amendments of 2005 were the primary authority to establish jurisdiction. Federal jurisdiction reigned supreme, although the Pueblo of Sandia still retains its jurisdiction. The outcome of the case is just one example of the expansion of tribal land.

Max Spivak is a 2L at the University of New Mexico School of Law. Originally from west Los Angeles (Tongva land), Max’s academic and professional interests include environmental and cultural preservation, peacebuilding, and pro-poor economics. Max has worked with the Southwest Women’s Law Center, DNA–People’s Legal Services, the Department of Defense, and Invariant Group, a bi-partisan government relations firm. He is excited to see where his future after law school takes him.

[1] 18 U.S.C. § 1153(a).

[2] 18 U.S.C. § 1111.

[3] United States v. Antonio, No. 18-2118, 2019 U.S. App. LEXIS 26657, at *2 (10th Cir. Sept. 4, 2019).

[4] United States v. Antonio, No. 16-1106 JB, 2017 U.S. Dist. LEXIS 85436 (D.N.M. June 5, 2017).

[5] Antonio, supra note 3, at *1.

[6] United States v. Sandoval, 231 U.S. 28, 34 S. Ct. 1, 58 L. Ed. 107 (1913).

[7] Antonio, supra note 3, at *7 (citing Indian Pueblo Lands Act Amendments of 2005, Pub. L. No. 109-133, 119 Stat. 2573 (Dec. 20, 2005)), codified at 25 U.S.C. § 331 (retaining emphasis).

[8] Appellant’s Opening Brief, United States v. Antonio, 2019 U.S. App. LEXIS 26657 (No. 18-2118),

[9] Appellee’s Answer Brief, United States v. Antonio, 2019 U.S. App. LEXIS 26657 (No. 18-2118),

[10] Appellant’s Reply Brief, United States v. Antonio, 2019 U.S. App. LEXIS 26657 (No. 18-2118),

[11] Antonio, 2017 U.S. Dist. LEXIS 85436,

[12] Antonio, 2019 U.S. App. LEXIS 26657,

[13] Antonio, supra note 4, at 2.

[14] Antonio, supra note 3, at *9 (citing 11 Stat. 374, 374 (1859)).

[15] Antonio, supra note 4, at 2.

[16] Id. at 7 (citing Pedro C. Garcia Patent 1069186 (executed Dec. 20, 1933)).

[17] Antonio, supra note 3, at *10.

[18] Id. at *8-9.

Case Notes

Red River, White Law

In the last two years, the Ganga and Yamuna Rivers were granted legal personality by the High Court of Uttarakhand, India;[1] the Te Awa Tupuawas declared a ‘legal entity’ as part of a settlement between the New Zealand Crown and the Whanganui iwi people;[2] and environmentalists brought an action on behalf of the Colorado River to have it declared “capable of possessing rights similar to a ‘person’” in the United States.[3] This year, voters in Toledo, Ohio, adopted the Lake Erie Bill of Rights[4] and activists in the Pacific Northwest continue in their quest to establish the Salish Sea as a person.[5] In each case, claimants seek to establish water as a rights-bearing subject. This strategy has tremendous appeal, not least because it rests on the premise that rivers, lakes, and oceans are living and essential to the health of our ecosystem and mutual well-being. This, in turn, is resonant of Indigenous teachings and practices that emphasize the connectedness among all beings, human and nonhuman, spiritual and physical, natural and supernatural. 

But the U.S. attempts are troubling for their failure to meaningfully engage Indigenous laws and lifeways here in the United States.[6] In the Colorado River case, for example, plaintiff’s amended complaint referred to the fact that “[t]hirty-four (34) Native American reservations exist within the Colorado River Basin,”[7] but did not discuss or draw on the laws or culture of any of the tribes that claim traditional authority over the river or adjacent lands. Instead, plaintiff invoked the Te Awa Pupua example from Aotearoa New Zealand and emphasized the evolution of legal personhood in the context of U.S. corporations. Contrast this with the Te Awa Pupua example, which rested on the acceptance and use of Māori legal and cultural practices in developing what Justice Joseph Williams has described as the ‘third law,’8 a legal solution “which [drew] upon both Māori and colonial legal systems to create something previously unknown to both.”9

Not only did the Colorado River plaintiff fail to recognize a significant role for tribes directly affected by environmental degradation in the area, it failed to acknowledge the ways in which developments elsewhere in the world were responsive to historical disputes specific to those regions. Again, take the Te Awa Tupua example. The Whanganui River Claims Settlement Act was passed “to give effect to a deed to settle the historical claims of the Whanganui iwi as they relate to the river.”10 The Whanganui iwi had claimed that New Zealand had breached its obligations to the Māori under the 1840 Treaty of Waitangi,11 and that they had lawful authority over the river, which flowed through traditional Whanganui iwi territory. Interestingly, some suggest settlement terms declaring the river a legal entity were driven, at least in part, by the fact that neither New Zealand nor the Māori could accept the river ‘belonging’ to the other.12 Thus, the grant of legal personality paved the way for co-management and permitted each side to ‘win’ without losing.

Ultimately, the Colorado River case was dismissed with prejudice on plaintiff’s unopposed motion because—in plaintiff’s words—“[w]hen engaged in an effort of first impression, [plaintiff] has a heightened ethical duty to continuously ensure that conditions are appropriate for our judicial institutions to best consider the merits of a new canon.”13 It is not clear what plaintiff meant by “ethical duty,” nor why plaintiff came to believe the conditions for moving forward were inappropriate, but this seems the right decision. No matter how well-intended, advocates reaching for personhood on behalf of rivers in the United States must think carefully about how to meaningfully engage the Indigenous peoples directly affected, or risk continuing practices of colonization. In that sense, the Colorado River case was a missed opportunity to contextualize the claim in terms of local Indigenous laws and cultures. Its dismissal provides an opportunity to reset and reach out before moving forward again.

Laura Spitz, J.D., University of British Columbia Allard School of Law; J.S.D., Cornell Law School; Associate Professor, University of New Mexico School of Law. Heartfelt thanks to John Borrows for encouragement and the title; Katherine Sanders and Yvonne Zylan for reading and commenting on earlier drafts; and Jena Ritchey for terrific editing and research assistance.

[1] Salim v. Uttarakhand, (Mar. 20, 2017) PIL. No. 126 of 2014 HC of Uttarakhand at Nainital (India). The order has been stayed. Alexandre Lillo, Is Water Simply a Flow? Exploring an Alternative Mindset for Recognizing Water as a Legal Person, 19 Vt. J. Envtl. L. 164, 167, 177 (2018).

[2] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (N.Z.).

[3] The action was dismissed by consent. Order, Colorado River Ecosystem v. State (filed Dec. 4, 2017) (No. 1:17-cv-02316-NYW).

[4] Toledoans for Safe Water, The Lake Erie Bill of Rights Citizens Initiative, (last visited May 29, 2019).

[5] Legal Rights for the Salish Sea, (last visited May 29, 2019).

[6] It is true that the group advocating rights for the Salish Sea recently expanded its bases to invoke Native “ways,” after the fact and without any specificity. They do acknowledge, however, that the rights of the sea may be in conflict with the rights of others, including Indigenous peoples. FAQs Salish Sea, Legal Rights for the Salish Sea,

[7] Amended Complaint for Declaratory and Injunctive Relief para. 19, Colorado River Ecosystem v. State (filed Nov. 3, 2017) (No. 1:17-cv-02316-NYW). For its part, the State of Colorado only refers to Indigenous Peoples once, in its motion to dismiss the amended complaint, for the purpose of arguing that injuries (if any) cannot be traced to Colorado given the multitude of involved actors—including Native Americans—and interstate and international compacts, court decisions and statutes. Defendant State of Colorado’s Motion to Dismiss at 9-10, Colorado River Ecosystem v. State (filed Oct. 17, 2017) (No. 1:17-cv-02316-NYW).

8 See Katherine Sanders, ‘Beyond Human Ownership’? Property, Power and Legal Personality for Nature in Aotearoa New Zealand, 30 J. Envtl. L. 207, 223 (2018) (citing to Justice Joseph Williams, The Harkness Henry Lecture Lex Aotearoa: An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law, 21 Waikato L. Rev. 1, 32-34 (2013)).

9 Id.

10 Professor Sanders, for example, argues that the “[u]se of the legal personality model was prompted by a stalemate: neither the [New Zealand] Crown nor iwi were prepared to relinquish their claim to authority over the … river.” Id. 230.

11 Id. 208.

12 Id. 230. See also Andrew Geddis & Jacinta Ruru, Places as Persons: Creating a New Framework for Māori-Crown Relations, in The Frontiers of Public Law (Jason NE Varuhas & Shona Wilson Stark eds., 2019).

13 Unopposed Motion to Dismiss Amended Complaint with Prejudice para. 8, Colorado River Ecosystem v. State (filed Dec. 3, 2017) (No. 1:17-cv-02316-NYW).