Papers on American Indian Law

American Indian law practitioners, including members of the firm and others, frequently prepare books and articles on American Indian law issues, several of which appear here.

These papers are not intended to be legal advice regarding any specific problem but instead are general surveys of federal Indian law principles. Each Indian law problem must be carefully analyzed in light of its facts, the reservation involved, the provisions of the treaty or executive order applicable, the constitution of the tribe, the law of the state, applicable federal cases and statutes, and other factors. The law is ever changing. Please read these papers with this cautionary disclaimer in mind.

THE FEDERAL TRUST RESPONSIBILITY TO TRIBES AND THE TRIBAL SELF-GOVERNANCE PROJECT
Prepared by M. Frances Ayer and Terence L. Thatcher (May 12, 1989)
"Self-Governance tribes should have this background as they approach their continuing implementation of self-governance."


TRIBAL TAXING AUTHORITY: LITIGATION CONCERNING TRIBAL TAXES
By Thomas P. Schlosser (September 2008)
"Like other governments, Indian tribes impose taxes to defray the cost of government services. Tax ordinances require careful planning but tribes have clear authority to impose several types of taxes on members and non members."

KLAMATH RIVER BASIN AND HYDROELECTRIC PROJECT P-2082
By Thomas P. Schlosser
"PacifiCorp's ancient Klamath River dams continue to block fish runs and operate under annual licenses since the project license expired in 2006. This paper provides updates on the FERC proceedings, irrigation water negotiations, biological opinions, power subsidies and Clean Water Act sec. 401 certification proceedings that will determine the timing of fisheries restoration in this once-great river of Oregon and California."

THE COUNCIL'S COUNSEL: THE ETHICS OF REPRESENTING TRIBAL COUNCILS
By Rob Roy Smith (July, 2006)
Indian Country is not "an ethics-free zone."

WHAT SATISFIES THE  “POLITICAL INTEGRITY” TEST?

By Thomas P. Schlosser (March, 2005)
Tribes may exercise civil jurisdiction over non-members when non-members engage in conduct on fee lands within a tribal reservation that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

THE TRIBAL TAX MAN COMETH--RECENT DEVELOPMENTS IN INDIAN TAXATION LAW

By Rob Roy Smith (January, 2005)
Recent cases indicate judicial willingness to further insulate tribes from state taxation while supporting tribes' power to tax non-Indians.

RESTORING MOTHER EARTH: INDIAN TRIBES AND ALASKA NATIVE NATURAL RESOURCE DAMAGE TRUSTEES

By Thomas P. Schlosser (November, 2004)

Many federal statutes recognize American Indian tribes’ rights in land, water, air and living resources.
View as a Powerpoint presentation

THE BEST INTERESTS OF THE INDIAN CHILD: FEDERAL GLOSS ON A STATE LAW CONCEPT
By Regina M. Cutler and Frank R. Jozwiak (May, 2004)
Too often the mandates of ICWA have foundered on the shores of state court resistance. The best interests of the child standard is one doctrines state courts routinely use to undermine the intentions of ICWA.

CULTURAL RESOURCE PROTECTION STRATEGIES:POST “KENNEWICK MAN”
By Rob Roy Smith (May, 2004)
This paper focuses on the Bonnichsen panel decision discussing the errors of the court and the dramatic impacts the decision may have on the future of repatriations across the country.

JURISDICTION CASE LAW BASICS: HOW JURISDICTION RELATES TO TRIBAL UTILITY REGULATION
By Thomas P. Schlosser (May, 2003)
This paper examines inherent and congressionally authorized exercises of tribal authority in the environmental regulatory field. The lessons learned through the environmental and taxation context are equally applicable to tribal utility regulation.

UPDATED PRIMER ON FEDERAL RECOGNITION AND CURRENT ISSUES AFFECTING THE PROCESS
By Jennifer P. Hughes (November, 2001)
An introduction and updated presentation on federal recognition.

TRIBAL RIGHTS AND THEIR EFFECT ON OUR CONCEPT OF PROPERTY RIGHTS IN THE NORTHWEST
By Mason D. Morisset (November, 2001)
As an incident of the power of self-government, tribes retain authority to regulate hunting and fishing of their members on reservation lands. In some cases the tribal government may also possess the authority to control hunting and fishing of non-members on non-Indian-owned lands if non-member conduct threatens or has some direct effect on the political integrity, the economic security or the health and welfare of the tribe.

ENVIRONMENTAL ENFORCEMENT ON TRIBAL LANDS: CONGRESSIONAL AUTHORITY AND MAJOR CASE LAW
By Thomas P. Schlosser (August, 2001)
The attenuation of inherent tribal sovereignty in U.S. Court jurisprudence is a subject of other papers and is touched upon in the discussion below concerning the Court’s two major tribal jurisdiction decisions in 2001.

TRIBAL CIVIL JURISDICTION OVER NONMEMBERS
By Thomas P. Schlosser (June, 2001)
This paper begins with a general description of tribal civil jurisdiction as recognized by the courts of the United States prior to 1978. We then trace the development of federal common law of tribal civil jurisdiction over nonmembers and suggest analysis of cases in terms of four types of jurisdiction: (1) consensual relationships; (2) threatening conduct; (3) congressionally delegated or recognized authority; and (4) authority over Indian lands.
View as a Powerpoint presentation

JUDICIAL UPDATE 2000-2001 FEDERAL CASE LAW ON AMERICAN INDIANS
By Kyme Allison McGaw (May, 2001)
Contains updates on 89 cases.

PRIMER ON FEDERAL RECOGNITION AND CURRENT ISSUES AFFECTING THE PROCESS
By Jennifer P. Hughes (February, 2001)
An introduction and presentation on federal recognition.

JUDICIAL UPDATE 1999-2000 FEDERAL CASE LAW ON AMERICAN INDIANS
By Thomas P. Schlosser (September, 2000)
Contains updates on 126 cases.
View as a Powerpoint presentation

WHY DOING BUSINESS ON RESERVATIONS IS UNIQUE
By Thomas P. Schlosser (May, 2000)
It takes more than good economic analysis and a winning personality to be successful in business; the transactions must also fit the requirements of the parties. Here are a few unusual aspects of doing business in the context of Indian reservations.
View as a Powerpoint presentation

A QUESTION OF TRUST: THE ROLE OF ALASKAN NATIVE TRIBES IN NATURAL RESOURCE DAMAGE ACTIONS
By Regina M. Cutler (March, 2000)
In some ways the subsistence and natural resource interest of Alaska Natives and the Alaska tribal governments are comparable to those of Indian tribes with treaty reserved or aboriginal rights to hunting, fishing and gathering in usual and accustomed areas in the lower 48 states.

FEDERAL DELEGATION OF TRIBAL JURISDICTION OVER NONMEMBERS
By Thomas P. Schlosser (September, 1999)
The doctrine of inherent tribal sovereignty in the federal courts lies in shreds. Determinations of inherent tribal sovereignty, particularly in the United States Supreme Court, have become more an exercise of political revisionism than inquiries into history and anthropology. Rulings rejecting a particular tribe's effort to exercise inherent tribal authority are presumed to set limits on all tribes' inherent authority and are quickly applied to other situations. 
  RECENT DEVELOPMENTS IN DEFINING THE FEDERAL TRUST RESPONSIBILITY
(The Case of the Reluctant Guardian)
By Mason D. Morisset (April, 1999)
The American Indian Policy Review Commission has suggested that, although the initial enunciation of the doctrine described the relationship as one of guardian and ward, that terminology should be replaced by language from the law of trusts. The courts have made it fairly clear that certain kinds of Indian property and monies are held by the United States in trust. In such cases, the government must assume the obligations of a fiduciary or trustee.

SOVEREIGN IMMUNITY (Should the Sovereign Control the Purse?)
By Thomas P. Schlosser (October, 1998)
This paper endeavors to set out major principles on the sovereign immunity of the United States and of Indian tribes and to apply those principles to current federal legislation concerning Indian tribes.

TO CLEAR THE MUDDY WATERS: TRIBAL REGULATORY AUTHORITY UNDER SECTION 518 OF THE CLEAN WATER ACT
By Regina M. Cutler (May, 1998)
In order for a tribe to be “treated as a state” under this section, the tribe must meet four requirements

TAXATION OF BUSINESSES IN INDIAN COUNTRY
By Thomas P. Schlosser (March, 1996)
Indian tribes, like other governments, depend upon revenue to finance their operations. To a unique extent Indian tribes have historically obtained revenue from sources other than taxes. Nonetheless, given the overwhelming national thrust to reduce the federal deficit, many tribes today recognize that the strength of their governments can no longer be left to depend upon federal government support and that their budget needs are outstripping the returns from tribal resource development and economic enterprises. Thus, some tribes have already begun to levy taxes on activities within their jurisdictions, and other tribes are giving serious attention to the development of tribal tax programs as a means of governmental support.

LOCATING THE NATIONAL INDIAN FOREST RESOURCES MANAGEMENT ACT IN THE TORTURED HISTORY OF INDIAN TIMBER MANAGEMENT
By Thomas P. Schlosser (February, 1992)
The National Indian Forest Resources Management Act ("NIFRMA") was enacted as Title III of Public Law 101-630,(1) on November 28, 1990. This paper places the NIFRMA in the context of tribal timber management generally, with particular attention to the seemingly anomalous question of whether the NIFRMA changes at all the enforceable trust duties of the United States with respect to Indian timber. The paper also highlights differences between tribal beneficial ownership of timber and the rights of an ordinary private timber owner.

TRIBAL COURT HANDBOOK FOR THE 26 FEDERALLY RECOGNIZED TRIBES IN WASHINGTON STATE
By Prof. Ralph Johnson and Rachel Paschal (2d Ed. September 1992)
This handbook was prepared by the Washington State Forum to Seek Solutions to Jurisdictional Conflicts Between Tribal and State Courts.  The Forum is a component of the Civil Jurisdiction of Tribal Courts and State Courts:  Research and Leadership Consensus Building Project funded by the State Justice Institute (Grant no. 90-14X-B-013), administered by the National Center for State Courts, and sponsored by the Conference of Chief Justices.  The Supreme Court of Washington provided additional assistance to the Forum.  The views and opinions expressed here do not necessarily reflect the view or policies of the grantor or grantee.

COTTON PETROLEUM CORP. V. NEW MEXICO, 109 S.CT. 1698 (1998): THE INEXORABLE ZERO COMES TO INDIAN PREEMPTION ANALYSIS

By Terence Thatcher (September 1989)

WASHINGTON'S RESISTANCE TO TREATY INDIAN COMMERCIAL FISHING: THE NEED FOR JUDICIAL APPORTIONMENT
By Thomas P. Schlosser (October, 1978)  
At the time the treaties were signed the tribes monopolized the harvest of salmon through their large scale fisheries on rivers and streams. Since the anadromous fish which hatch and rear in a river return to the same spot in the river when they reach maturity, the Indian nets, traps, weirs, and other fishing gear could efficiently harvest as much or as little of the run in rivers or nearby bays without interfering with other tribes= harvest of other fish runs. Preservation of the tribal livelihood which was based on these cyclical fisheries would have required the state to recognize property rights in traps sites and to protect trap site owners, Indian and non-Indian, from the preemption of their productive fisheries by marine fishing farther downstream, along the migration path. Nevertheless, the development of marine fisheries was tolerated.