MORISSET SCHLOSSER JOZWIAK & SOMERVILLE

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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. READ THESE PAPERS WITH THIS CAUTIONARY DISCLAIMER IN MIND.

Cautionary Disclaimer

Endangered Species Act Litigation: Re-initiation of Section 7 Consultation

An overview of the Endangered Species Act’s consultation obligation and issues that arise when litigating cases alleging a “failure to reinitiate” consultation.

By Thane D. Somerville (January 2019)

Applicability of Federal Employment and Labor Laws to Indian Tribes: Federal Power Commission v. Tuscarora Indian Nation

 

Do federal labor and employment laws apply to Indian tribal government employers?

By Thane D. Somerville (June 2015)

Management of Bald and Golden Eagles Under Federal Law

Analysis of the federal laws that provide protection for Bald and Golden Eagles.

By Thane D. Somerville (May 2014)

Tribal Trust Fund Litigation and Settlement: History of Trust Management Statutes and Overview of Significant Case Law

Summarizing and compiling the relevant statutes and cases addressing the United States’ management of tribal trust funds.

By Thane D. Somerville (June 2012)

Indian Law in the Scalia Era: Tribes Will Face a Skeptical Court in the 2010-2011 Term

An analysis of the United States Supreme Court’s Indian Law decisions from 1986-2010.

By Thane D. Somerville (2011)

Boldt from the Blue: Struggles Over Salmon

The Chapter “Boldt from the Blue” from the book “Turning Points in Washington History” discusses the seminal treaty rights fishing case of U.S. v. Washington (Boldt Decision).

By Mason D. Morisset (2011)

Hoopa Valley Tribe v. FERC: The Effort to Obtain Interim Protective Conditions in FERC Annual Licenses

This article discusses the annual licensing process and the largely unsuccessful efforts made in the courts to require licensees operating on expired licenses to comply with applicable environmental laws.

By Thane D. Somerville (November 2010)

Tribes and Dams: Using Section 4(e) of the Federal Power Act to Protect Indian Tribes and Restore Reservation Resources

This article examines the section 4(e) conditioning authority and uses the recent settlement agreement in the relicensing of the Cushman Hydroelectric Project to illustrate that role that section 4(e) plays in the relicensing of hydroelectric projects located within Indian Reservations.

By Thane D. Somerville (Spring 2009)

Clear Passage: The Culvert Case Decision as a Foundation for Habitat Protection and Preservation

This Seattle Journal of Environmental Law and Policy article, published by Seattle University School of Law Review  analyzes the “culvert” case involving N.W. Treaty fishing rights and habitat protection.

By Mason D. Morisset (Spring 2009)

Tribal Taxing Authority: Litigation Concerning Tribal Taxes

"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."

By Thomas P. Schlosser (September 2008)

The Cushman Dam Case and Indian Treaty Rights

This Public Lands and Lae Review article published by the University of Montana, analyzes Skokomish Tribe v. U.S. (The Cushman Dam case) concerning treaty rights and damages to fisheries resources and tribal water rights.

By Mason D. Morisset (2006)

Klamath River Basin and Hydroelectric Project P-2082

"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."

By Thomas P. Schlosser

What Satisfies The "Political Integrity" Test?

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."

By Thomas P. Schlosser (March, 2005)

Restoring Mother Earth: Indian Tribes and Alaskan Native Natural Resource Damage Trustees

Many federal statutes recognize American Indian tribes’ rights in land, water, air and living resources.

By Thomas P. Schlosser (November, 2004)

The Best Interests of the Indian Child: Federal Gloss on a State Law Concept

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.

By Regina M. Cutler and Frank R. Jozwiak (May, 2004)

Jurisdiction Case Law Basics: How Jurisdiction Relates to Tribal Utility Regulation

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.

By Thomas P. Schlosser (May, 2003)

Tribal Rights and Their Effect on Our Concept of Property Rights in the Northwest

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.

By Mason D. Morisset (November, 2001)

Environmental Enforcement on Tribal Lands: Congressional Authority and Major Case Law

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.

By Thomas P. Schlosser (August, 2001)

Tribal Civil Jurisdiction Over Nonmembers

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.

By Thomas P. Schlosser (June, 2001)

Judicial Update 1999-2000 Federal Case Law on American Indians

Contains updates on 126 cases. 

By Thomas P. Schlosser (September, 2000) 

Why Doing Business on Reservations is Unique

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.

By Thomas P. Schlosser (May, 2000) 

Federal Delegation of Tribal Jurisdiction Over Nonmembers

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.

By Thomas P. Schlosser (September, 1999)

Recent Developments in Defining the Federal Trust Responsibility

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.

By Mason D. Morisset (April, 1999)

Sovereign Immunity: Should the Sovereign Control the Purse?

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.

By Thomas P. Schlosser (October, 1998)

Taxation of Businesses in Indian Country

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.

By Thomas P. Schlosser (March, 1996)

Locating the National Indian Forest Resources Management Act in the Tortured History of Indian Timber Management

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.

By Thomas P. Schlosser (February, 1992)

Washington's Resistance to Treaty Indian Commercial Fishing: The Need for Judicial Apportionment

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.

By Thomas P. Schlosser (October, 1978) 

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