Why are water rights important to Native Americans?

Why are water rights important to Native Americans?


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You should cite when you use class notes, class texts, or refer to allowed web sites. It is adequate to cite for example as follows: (text, p. 74), (class notes, 9/15), or (insert web site address URL here). I take off many points for no or too few citations! You do not need any sort of bibliography or works cited, as I know exactly which sources you are referring to. This simple internal citation means that I can pinpoint where you are getting your sources.

Now write out question one as I show below in a hypothetical answer:

Question one. After the death of Justice Antonin Scalia, a sitting Supreme Court Justice, President Barrack Obama nominated.

By writing question one out there is no way to have a numbering issue.

You are being graded on two key aspects of your work: thoroughness and quality of analysis. You must answer the questions that I asked you, as those questions are written. You will not receive points for shooting the breeze or answering a question that I did not ask.

Please do not use lists or bullets. Please use only proper paragraph form.

Question one: What are usufructuary rights? Why are they significant to this course? 13 pointsone-half page (.5) page minimum. Hint: Make sure to look in your lectures for this term.

Question two: Why are water rights important to Native Americans? What are some of the issues relating to water rights in relation to Native Americans? Why are these issues important to Native Americans? 12 pointsone-half page (.5) page minimum.

Question three: What are the Free Exercise Clause and the Establishment Clause? What re they important to Native Americans? Pick at least two cases mentioned in your text about this subject to include in your discussion. 25 pointsone full page (1) page minimum.

Question four: What is ANCSA? Why is it important? Make sure to discuss the Tee-Hit-Ton case as well. 13 pointsone-half page (.5) page minimum.

Question five: What is the Indian Gaming Regulatory Act of 1988? Why is it important? 12 pointsone-half page (.5) page minimum.

Question six: Please discuss the Indian Child Welfare Act of 1978. Please make sure to include Mississippi Choctaw Indians v. Holyfield (1989) and Adoptive Couple v. Baby Girl (2013) in your discussion. 25 pointsone (1) full page minimum.


Lecture 2
The Trust Responsibility (Chapter Three)
In chapter three we will begin with the doctrine of trust responsibility.

A trust, in a generic legal sense, means that one party (the benefactor) gives something of value to a trustee who holds that thing of value for a beneficiary.

In Native American Law, the US Government acts as a trustee for the benefit of Native American tribes who are beneficiaries. In the doctrine of trust responsibility, the benefactor would be the tribes who gave their lands.. The trust responsibility arises from the US Governments promise to fulfill certain promises based on the transfer of Native American land to the US Government. Thats where the trust responsibility comes from.

Trustees cant handle a trust in any way that is not of benefit to the beneficiary. Please be sure to carefully understand the duty of consultation which begins on p. 40 of you text. Having a say in your own destiny emanates from civil rights protected by the US Constitution. This will be a primary theme throughout the course.

In chapter fifteen we will more deeply go into non-federally recognized tribes, but for now, please note the texts discussion on pp. 31-32.

Legality v. Morality

Congress can terminate a trust relationship, as is explained on p. 42-44. Please ask yourself: How are legality and morality different? Should they be different? This is just food for thought.

The Trail of Tears
Before we begin chapter four in your text and discussing treaties, we should look at a very significant period of Native American law known as the Cherokee Cases and the Indian Removal Act.
Please watch this video presented by the National Park Service and produced by the Cherokee Nation. It should tie many things together for you. (Please especially note the Indian Removal Act and the Worcester case.)
Trail of Tears video

The Cherokee Cases are:
Cherokee Nation v. Georgia
Worcester v. Georgia
Please read this webpage from PBS: PBS-The Cherokee Cases
Next please read this webpage to make sure that you understand the Worcester case:
Oyez-Worcester case

Indian Treaties (Chapter four)
Sovereignty, Sovereignty, Sovereignty! There is no more important concept in Native American law. The crux of the course is that Indian nations are sovereign. Sovereign nations rule themselves. I am sure most of you know that things have historically not gone well for Native Americans when they have signed treaties with the US Government. Understanding that, we will approach all treaties with the US Government with trepidation.

The US Constitution is the highest of all US law. It includes lots of rights. Treaties may not conflict with US constitutional rights. However, treaties are above all state law-including state constitutions. This describes the law of the United States. Each Native American nation, being sovereign, may have their own structures and hierarchies.

Only the United States (not individual states) may make treaties with foreign (sovereign) nations. Therefore, only the US Federal Government may make a treaty with Native American tribes.
1) US Treaties with Native Americans were largely just a land grab by the US Government. They often did not properly enumerate the rights of Native American tribes.
2) The US Government often violated the treaties.
Please make sure that you understand the Lone Wolf case in this context.
Oyez-Lone Wolf (Lone Wolf)
The inequality of military power often led Native American tribes to sign multiple treaties, with each taking away more and more from the Native American tribes. Treaties are basically a very elaborate contract. Contracts are required to be voluntary in order to be valid.

The End of New Treaties
In 1871 Congress passed Title 25 U.S.C. section 71 which precluded any more treaties with Native Americans. From that point forward, Congress dealt with Native American law and policy through legislations. (Please note that the US Supreme Court also plays a large role as well.)

Please note: Treaties entered before 1871 remained in effect. As of today, most treaties have been abrogated (repealed) by Congressat least partially. When treaties are abrogated, under the Fifth Amendment to the US Constitution Native American tribes must be compensated. Often that compensation has been unfair, even though it must be fair according to the US Constitution.

Over the years the US Supreme Court has come up with three tests across many US Supreme Court cases. They favor Native American tribes due to unequal bargaining power at the time of the signing (another legal contractual principle.) When a dispute occurs in a Native American treaty, these three tests apply:

Lecture 3

The Great Law (of Peace)
First please watch this video funded by PBS about how The Great Law of the Iroquois directly influenced the US Constitution. Prof. Donald Grinde from SUNY-Buffalo is the narrator. It is produced by a Native American production company dedicated to present Native American perspectives. The Great Law

Next, please read this article about the first Native American women elected to Congress: CNN Native American Women in Congress

US Constitutional and Statutory Concepts (Chapter Five)
Please very carefully read Section A beginning on p. 56 of your text. Please carefully note U.S. Code Title 25. Please also note Morton v. Mancari which upholds the Indian Preference Act. Oyez-Mancari
What we have is a preference given to Native Americans. The issue is if Native Americans are given a special status that can be a double-edge swordsometimes good for Native American and sometimes bad for Native Americans.
Your text explains that the US Supreme Court is applying a rational basis test rather than the compelling interest test.
In order to understand the significance of these tests, please look over this webpage from Prof. Linder. Prof. Linder is a law professor at the Univ. of Missouri-Kansas City. Dont worry about learning the cases on these two websites. Please just get a general constitutional understanding. Equal Protection applies to the states through its place in the Fourteenth Amendment. It applies to the federal government through the cases that have interpreted the Fifth Amendments Due Process Clause to include a prong which is Equal Protection.
Level of Scrutiny under Equal Protection
Please note: De jure (in law) discrimination will be obviously discriminatory on its face. De facto (in fact) discrimination will have a discriminatory result even if it is not discriminatory on its face.
Please note: On p. 61 that the Lone Wolf case we studied last week is no longer fully in effect.
Please note: Also, on p. 61 Congress can discriminate among tribes. Clearly, this is extremely controversial. It can effectively lead tribes to have to compete with each other for federal resources.
As you will recall from Chapter One, in the Termination Era (1953-1968) Congress terminated 109 tribes from its trust relationship with the federal government. This, among other things, took federal land from tribes (including their reservations.) It was a horrible economic and dispiriting period for many tribes. Please note the Menominee Tribe of Indians v. United States Oyez-Menominee
{Beyond Termination issues, Menominee relates to usufructuary rights (hunting and fishing) which we will study in detail in Chapter Eleven.}
After completing the course materials so far, you should be able to generally understand this Harvard lecture entitled 567 Nations: The History of Federal Indian Law. You dont need to note everything Prof. Singer says, but his lecture should generally help you to synthesize what you have learned so far.
Harvard Law-Prof. Singer-The History of Federal Indian Law

Tribal Self-Government (Chapter Five)
A narrowed-down version of this topic is going to be one of your choices for term paper. You can examine the tribal government of a tribe of special interest to you. You may pick a federally recognized or non-federally recognized tribe. This will be explained in detail next week in Lecture Four.

What is nationalism?
You should be distinguishing the concepts of nation, state, and nation-state. How do these terms apply to Native Americans?
A nation is a group of people bound by culture, language, history, and usually geography.
A state (in the law and policy sense) is a geographical region and its government. A country in this sense is a state.
A nation-state is where a nation and a state come together. It is a state (country) where people share a common culture, history, territory, and typically language.

Now lets look more closely at the idea of nationalism. Please read this webpage about this important concept. Please ask yourself as you read: What does it mean to be an Indian Nation? What factors play a role? What common factors create that nation? Language? Culture? History? Geography? Ethnicity? Religion? Is there always a certain mixture of these factors, or do they differ from tribe to tribe?

Tribal Government Structure
Please now watch these segments of Indian Pride. Please note how tribal governments differ from tribe to tribe.

Tribes are sovereign entities, but their power can be curtailed by Congress.
And, no, those two statements do not make any sense when read together. From a political or legal viewpoint, both statements can simply not be true. A lot of conflicts between the federal government and tribal governments arise from this disparity. Please make sure to look in your text on pp. 82-84 concerning limitations which are express and implied.

The Indian Reorganization Act of 1934 (IRA) was supposed to give a constitutional model to tribes to modernize their governmental structure. It is discussed on pp. 85-87. Please ask yourself how the IRA and tribal customs fit together. Do they? Why or why not? This will be your discussion posting this week.

Lecture 5

Civil Jurisdiction in Indian Country (Chapter Nine)

First a little refresher
(From Lecture Four) Jurisdiction means a court system has the right to hear and decide a case. We are looking at a choice of three court systems: Federal, state, and/or tribal jurisdiction.

(From Lecture Four) Please note: Even many lawyers struggle with understanding the finer points of jurisdiction relating to Indian Country, and you will not be tested on the finer points of jurisdiction. Please remember that the Final Exam is open book. Please follow along with this lecture and get a general sense. This information refers to {civil cases} in Indian Country. For a refresher you can re-read pp. 20-23 in the text if you feel that would be helpful.

(From Lecture Two) Please note: Civil law, in the American sense, just means law that is not related to criminal law. In civil cases usually money is awardedno one goes to jail unless it is also a criminal offense. An example is an assault. If Joe breaks Bills nose on purpose by punching him, then Bill may be able to sue Joe in civil court and get a money award for damages. Bill can also file a complaint and the state can press criminal charges, which could send Joe to jail upon conviction. Many cases, such as contract issues, will have only civil ramifications. In other words, even if it is a civil case, it is still part of our common law system.

(From Lecture Four) Public Law 83-280 (usually called P.L. 280) relates to six mandatory states. The mandatory states are: Oregon, California, Wisconsin, Minnesota, Alaska, and Nebraska.

The new stuff on civil jurisdiction
The rule used to be that Indians had civil authority over non-Indians on non-Indian owned land within the reservation borders. Montana v. US (1981) changed that.

Please read this case summary to make sure that you have a good handle on the case:
DOJ Montana v. US (1981)


Usufructuary Rights: Indian Hunting and Fishing Rights (Chapter Eleven)
The first thing that you need to know about is the concept of usufructuary rights (pronounced: use you FROOK tyou airy). It is a concept from property law. It means that when another person owns the land, a certain right is maintained by another regarding that land, without damaging that land. Normally going on anothers land without their permission can be deemed to be a trespass. If Indian tribes have usufructuary rights, then they can hunt, fish, etc., without it being a trespass.
Please read this summary of Oregon Department of Fish & Wildlife v. Klamath Indian Tribe at the link below.
Justia-Oregon Department of Fish and Wildlife
Your text discusses Washington State Commercial Passenger Fishing Vessel Association (1979) on pp. 185-186. This case explains the importance of wildlife to Native American tribes.

There are two especially important cases that relate to hunting and fishing on-reservations against state regulation on p. 193-194 of the text. The general rule is that Native Americans can regulate hunting and fishing on their reservations. The Montana exception comes from Montana v. US (1981) which you will also remember from the Midterm Exam! Native Americans only have limited power to regulate hunting and fishing of non-Indians on their reservation. The Montana Exception allows Native Americans to regulate non-Indians on the reservation only if:

Puyallup Tribe, Inc. v. Department of Game (1968) made an exception to the general rule that states may not regulate hunting and fishing on tribal land. The exception is only when there is a conservation necessity. In other words, when an endangered species could be at risk.

Indian Water Rights (Chapter Twelve)
In many states, water rights are arguably the most important issue in American Indian Law. Not only can you only survive for three days without drinking water, but also it is necessary to grow crops, for sanitation, and for industrial purposes.

The Winters Doctrine (beginning on p. 203 in your text) comes from Winters v. US (1908). Basically, Native Americans tribes on reservations win in water disputes against non-Indians. This doctrine is also called the reserved water rights doctrine.

Lecture 10

Indian Gaming (Chapter 16)
Just to clarify, when we say gaming, we usually mean gambling in casinos.

As you read chapter sixteen please note that tribal sovereignty is the big issue with Indian gaming. In Indian Country gambling can be legal even if it is not legal in the surrounding state.

Next please watch these segments of Indian Pride on gaming. What are good and bad aspects of gaming?
Indian Pride-Gaming Part I
Indian Pride-Gaming Part II

Next, please generally look at (skim) the National Indian Gaming Commissions website.
National Indian Gaming Commission

Please read this summary of California v. Cabazon Band of Mission Indians (1987) from Oyez. (The case is discussed in your text beginning on p. 276).
Oyez Cabazon
The Indian Gaming Regulatory Act of 1988 (IGRA) is below in a link. Please read it carefully. Please note why October 17, 1988 is significant.

Please also be aware of the Chickasaw Nation v. United States (2001) case. Please read this from Oyez:
Oyez Chickasaw

Suggested reading:
If you would like more information about Indian gaming, then here is a good webpage from the University of North Dakota, School of Law. It is not required,
Northern Plains Indian Law Center

Lecture 13

Many of you are already aware of the benefits of full federal recognition of the Lumbee Tribe. It has been a sustained political struggle. These readings are to make sure that you are aware of the most important issues. The Lumbee currently have partial federal recognition as a tribe. They have full North Carolina recognition.
PLEASE NOTE: Many people feel that the partial federal recognition given to the Lumbee relates to financial politics.
If you do not recall it, please review Lecture Four in reference to the Lumbee case study. You dont have to reread them if you remember it clearly.

Now please listen to this history from Dr. Malinda Maynor Lowery (a history professor at UNC).
Dr. Maynor Lowery on UNC Radio

Next please read what the Lumbee Tribe has to say about full federal recognition.
Lumbee Tribe Federal Recognition

Lecture 11
The Indian Child Welfare Act (Chapter 17)
First, please review this flow chart and glossary from NICWA (National Indian Child Welfare Association).
NICWA Flowchart

Next, please review this website from the Bureau of Indian Affairs. It has a lot of handouts which may be useful in your careers.

Please read the syllabus for Mississippi Choctaw Indians v. Holyfield (1989):
Holyfield Syllabus

Please also read Oyez for Adoptive Couple v. Baby Girl (2013):
Oyez Adoptive Couple

Now please review this North Carolina information:
North Carolina Indian Child Welfare Program
And this from the UNC School of Government:


  • Write a persuasive research paper that meets the guidelines and is worth 50 points (i.e., 50% of the final grade). Be sure to see the Rubric. See also the research papers at the Arak site.
  • Prepare a shortened version of your Final Paper (at least four pages) by including the following:
  • Why are water rights important to Native Americans?
  • Research and select a sample strategic plan in an industry with which you are familiar or interested.
  • Create a PowerPoint presentation for the Sun Coast Remediation research project to communicate the findings and suggest recommendations. Please use the following format:
  • Write a paper on Negotiation Skills related to an organization of choice.
  • Write a paper on the hist 20th century term paper.
  • Discuss the role of corrections and at least two of the serious issues faced by the correctional field.
  • What are the five goals of sentencing?
  • Describe the cultural beliefs and biases of your chosen subculture, as well as some of their norms and taboos.