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Another Supreme Court move away from recognition of tribal sovereignty.

I. Introduction II. Congressional Abrogation of Treaty Rights

A. Shifting Standards of Abrogation

B. The Dion Standard III. Judicial Erosion of Tribal Sovereignty: The Montana and

Brendale Decisions

A. Montana v. United States

B. Brendale v. Confederated Tribes & Bands of the Yakima

Nation IV. South Dakota v. Bourland

A. The Cheyenne River Reservation and the Fort Laramie Treaty

B. The Flood Control Act of 1944

C. The Cheyenne River Act of 1954

D. The Lower Court's Decisions

E. The Supreme Court on Bourland

1. The Montana Analysis

2. The Dion Standard

3. Bourland's Ramifications

V. A Possible Solution for the Bourland Situation

A. The Corps Regulations

B. Changes in the Corps Regulations VI. Conclusion


Over the past twenty years, the United States Supreme Court has handed down a series of decisions that fundamentally undermines the rights of Indians to govern themselves and to control their lands free from interference by state and federal governments.(1) By continually revising traditional principles of judicial interpretation of treaty rights and their relation to subsequent legislation, the Court has contributed to the erosion of tribal sovereignty.(2) The Court's revisions have resulted in a judicial standard that makes finding a congressional abrogation of treaty rights, especially abrogation of treaty rights to regulate, increasingly easy.

The Court's recent decisions demonstrate an increasing willingness to allow state jurisdiction to reach into reservations and a corresponding unwillingness to allow tribal jurisdiction to reach beyond tribal members, either on or off reservations.(3) In addition, the Court is unsympathetic to the distinctions between sovereignty and property(4) that could enable tribes to salvage some semblance of self-determination and counter the disastrous effects of the ill-conceived allotment era of the late nineteenth and early twentieth centuries.(5) Rather than regard tribes as sovereign entities whose reservations are extraterritorial to the states in which they are located, the Court views tribes as private organizations(6) whose power must not be allowed to extend over nonmembers.(7) Thus, the Court is often able to circumscribe a tribe's power by interpreting federal statutes of general applicability as abrogating treaty rights.(8)

In its most recent case involving tribal jurisdiction, South Dakota v. Bourland,(9) the Court took another step away from the traditional tenets of Indian law(10) to find an abrogation of treaty rights implied from congressional silence. In Bourland, the federal government, the tribal trustee, passed a general statute condemning riverfront property along the Missouri River for a dam project.(11) The Court determined that this general statute and subsequent legislation abrogated the tribe's treaty right to regulate on the taken land, relying on two recent decisions(12) which fly in the face of nearly a century of established precedent and utterly ignore the canons of construction. In those cases, as well as in Bourland, the Court departed from the foundational principles that have shaped the field of Indian law since the early nineteenth century.(13) The "effects test" that the Court used in Bourland is in fact a coup d'etat of the Court over Congress in the area of treaty rights abrogation.(14)

This Note examines the Court's methodology in Bourland and suggests that the Court's willingness to infer abrogation sets yet another dangerous precedent against preserving tribal sovereignty. Section II briefly overviews the various judicial tests used to determine whether a treaty has been abrogated, including the Court's most recent formulation. Section III surveys two recent cases, Montana v. United States(15) and Brendale v. Confederated Tribes & Bands of the Yakima Nation,(16) in which the Court departed from its traditional approach to determining treaty abrogation and preserving tribal sovereignty. Section IV examines the Bourland decision and its ramifications. Section V suggests that because Congress empowered the Army Corps of Engineers with authority over the dam project, changes to the Corps regulations could provide a solution to the particular situation in Bourland. This Note concludes that the majority-dissent pattern of the Supreme Court's recent decisions is a mirror image of the majority-concurrence pattern in the Marshall Trilogy,(17) the nineteenth century cases in which Chief Justice Marshall forged the fundamental concepts that, until recently, defined tribes, power and their relationship to the United States. Those cases established the federal government as the bulwark of authority to protect tribes from state encroachment. The Supreme Court's recent move away from traditional Indian law principles indicates tribes should focus their energies on nonlitigation alternatives to preserve and foster their sovereignty, such as agreements with states and federal agencies and discussions with members of Congress.


By virtue of its plenary power over Indian affairs,(18) Congress can unilaterally (i.e., without tribal consent) abrogate treaty rights.(19) Problems arise, however, when Congress passes a federal statute of general applicability that affects treaty rights, but is silent regarding intent to abrogate a particular treaty right.(20) As with other areas of law, the goal of the judicial inquiry is to determine legislative intent. This inquiry is supposedly guided by canons of construction(21) designed to ensure fairness and influenced by the trust relationship(22) between the tribes and the United States.(23) The trust relationship gives the federal government the power to control and manage tribes, "subject to limitations inhering in such a guardianship."(24) Tribes have successfully used the trust relationship to protect themselves from federal actions.(25) This trust relationship arid the canons of construction provide the essential framework for judicial interpretation of tribal rights.

Canons of construction require a court to read a treaty or other agreement between the United States and a tribe with an eye to protecting tribal interests. Courts have also applied these rules of construction to statutes concerning Indian rights.(26) The canons require that any ambiguous expressions be interpreted in favor of the tribe.(27) As drafter, the United States should not benefit from any lack of clarity, or from the use of highly technical language;(28) courts must construe terms as Indians themselves would have understood them.(29) Also, courts should interpret the document in light of the overarching principle that agreements between the United States and tribes are to be liberally construed in favor of the tribes so as to accomplish their protective purposes.30 However, in the Supreme Court's Bourland decision, which construed two statutes, the canons are conspicuously absent.

A. Shifting Standards of Abrogation

Over the years, the Court developed various tests to determine whether Congress intended to abrogate a treaty.3, For example, at one time or another, the Court has 1) required Congress to expressly declare its intention to abrogate,(32) 2) indicated that explicit statutory language of intent to abrogate is preferred,(33) 3) held that abrogation will not be lightly implied,(34) and 4) allowed the legislative history of the statute and the surrounding circumstances to provide adequate evidence of legislative intent.(35) The general principle behind these standards is that legislative intent to abrogate must be clear,(36) but the difficulty lies in determining what suffices as clear evidence of legislative intent. While the various standards reflect a judicial disposition that is protective of tribal rights, the different formulations of what constitutes clear evidence have led to inconsistent results.(37) Generally, in cases where Congress did not make an explicit statement, courts have found abrogation only where the legislative history of a statute provided sufficiently compelling evidence of Congressional intent to abrogate.

B. The Dion Standard

In an effort to clarify what an acceptable showing of legislative intent to abrogate is, the Court announced a new test in United States v. Dion.(38) Dion concerned a conflict between a treaty right to hunt and three statutes that purportedly abrogated that right.(39) The case arose after agents of the U.S. Fish and Wildlife Service arrested Dwight Dion, Sr. for shooting eagles protected under the statutes and offering to sell feathers and other parts of the birds. As a defense, Dion pointed to the Yankton Sioux Tribe's treaty right to hunt on its reservation. The Supreme Court's decision addressed the issue of whether Congress abrogated the treaty right to hunt eagles in the Eagle Protection Act.(40)

In Dion, the Court announced a new three-part test enunciating standards for determining how to find clear and plain legislative intent to abrogate. According to Justice Marshall, writing for a unanimous court, "What is essential is [1] clear evidence that [2] Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and [3] chose to resolve that conflict by abrogating the treaty."(41) The Court's application of the Dion test to the Eagle Protection Act illustrated how the Court envisioned the test would work.

The Eagle Protection Act makes it a crime to do just about anything with a dead or living eagle or eagle part.(42) However, under certain circumstances, the Act allows the Secretary of the Interior to issue permits to take, possess, or transport eagles for the religious purposes of Indian tribes.(43) This permit provision provided the Court with a strong suggestion that Congress intended to abrogate Indian treaty rights to hunt eagles.(44) To demonstrate the strength of this suggestion, the Court carefully examined the permitting scheme under the new test announced in Dion.(45) The Court's examination focused on the Eagle Protection Act's legislative history discussing the permit exemption, which contained many references to the importance of eagles to tribal religious practices.(46) The permit provision and its legislative history led the Court to conclude that Congress not only knew it was abrogating tribes, treaty rights to take eagles, but also actively chose to do so.(47)

The Dion result illustrates how courts should fit the facts of a case into the Dion test. However, Dion did leave some questions open. The threshold for sufficient clear evidence is still not obvious because the Eagle Protection Act's permit provision and the legislative history concerning it provided such a strong case for finding an abrogation. However, Dion does make it clear that the actual consideration of the conflict between treaty rights and a proposed legislative action, and the choice to resolve that conflict by abrogation, must be distinctly evident in the facts.(48) Because the Dion test requires a showing that Congress actually knew the statute would affect treaty rights, the test could be beneficial for tribes in cases where tribal interests clash with federal statutes of general applicability, provided that courts strictly adhere to Dion's requirements. However, the Supreme Court's recent application of Dion indicates that the test can be satisfied without carefully working a case's facts through it (49)

III. Judicial Erosion of Tribal Sovereignty: the Montana and Brendale Decisions

This section examines Montana v. United States and Brendale v. Confederated Tribes & Bands of the Yakima Nation as precursors to the decision in Bourland.(50) Montana was a watershed case that reversed the traditional presumptions of Indian law,(51) and Brendale was an attempt to clarify the Montana decision.(52) While the facts in Montana, Brendale, and Bourland are significantly different, the Court treated the legal issues similarly. The Bourland decision helps to show how the Court will apply the principles articulated in Montana and where the Court will take its analysis of tribal civil jurisdiction over non-Indians on reservation in the future.

A. Montana v. United States

Montana has been called the "seminal" case in modern tribal jurisdiction,(53) partly because the Court chose to disregard precedent and create a new presumption to guide succeeding Indian law decisions. Montana involved two disputes between the Crow Tribe and the State of Montana First, the Tribe claimed ownership of the bed of the Big Horn River, which was within the reservation's boundaries. However, the Court decided that the riverbed in fact belonged to the state, based on the general principle that the "Federal Government holds [land under navigable waters] in trust for future States, to be granted to such States when they enter the Union and assume sovereignty on an ,equal footing, with the established stcltes."(54)

Second, the Tribe regulated hunting and fishing by nonmembers within the reservation, even on lands owned by nonmembers, arguing that its treaty and inherent sovereignty gave it the right to do so. The Court held that tribal regulatory power over nonmember hunting and fishing on nonmember land within the reservation was inconsistent with the Tribe's dependent status.(55) The Court then created a general rule that the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation."(56) This blanket rule effectively reversed the traditional presumption that tribes retain power until Congress divests them of it. Under Montana, the presumption is that tribes do not retain power over nonmembers within reservation boundaries unless Congress empowers them. Thus, for tribes to retain the power to regulate nonmembers, Congress must affirmatively act to delegate that jurisdiction, whereas for tribes to lose that power, all a court must do is decide that Congress did not act.(57)

In Montana, the Court articulated two exceptions to its new rule. First, tribes retain a right to regulate the activities of nonmembers who enter into consensual relationships with the tribe.(58) Second, tribes "retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within [the tribe's] reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."(59) After Montana, tribal law as applied to nonmembers preempts state law only when the situation meets one of these exceptions.

Although the Montana Court found that the Crow Tribe's situation satisfied neither of the two exceptions, tribal advocates hoped that the exceptions would be applied broadly. It appeared that Montana might be explained as a peculiar case in which the United States was placed in a conundrum because of conflicting trust obligations to the states and the Indian tribes. Thus, tribal advocates hoped that Montana would be confined to the unusual instance where normal Indian law rules of statutory construction, based on the federal government's trust relationship with the tribes, yielded to another body of law based on the federal government's trust relationship with states.(60) However, the Court's subsequent reliance on Montana's statements in Brendale demonstrated that the Montana analysis has broad application, and that the two Montana exceptions do not.

B. Brendale v. Confederated Tribes & Bands of the Yakima Nation(61)

Brendale concemed a dispute between Yakima County, Washington and the Yakama Indian Nation over which body had the authority to zone nonmember land on reservation.(62) This case presented the Court with an opportunity to further define and refine the scope of the jurisdictional holding in Montana. However, the Brendale Court rendered a fractured four to three to two plurality decision that served only to obscure the matter further.(63) Justice Stevens, deciding opinion distinguished between open and closed areas of the reservation: the Tribe allowed the general public onto the open area which was heavily developed, but it restricted access to the closed area which was only nominally developed.(64)

Four members of the Court felt that because Congress had not delegated zoning authority over non-Indians to the Tribe, as required by Montana, the Tribe had no authority to zone in either the open or closed areas.(65) Additionally, the Court held that the determination of whether the Tribe was threatened by a particular conduct--the second Montana exception--lay with the Court and not with the Tribe. Further, even if a court found a threat to, or a direct effect on, the political integrity, economic security, or health or welfare of a tribe, a judicial decision that a tribe had jurisdiction over the threatening conduct was a permissive one. Thus, even if a Montana exception applies, a court is not required to give a tribe jurisdiction.(66)

Three members of the Court felt that the Tribe retained regulatory authority over both the open and closed areas, focusing on inherent sovereignty and the fact that Congress never acted to take away tribal jurisdiction.(67) This opinion also criticized the Court both for the Montana decision itself, and for the stingy application of its exceptions.(68)

The deciding opinion(69) held that the Tribe had no authority to zone in the open area, but could zone in the closed area since it had retained its authority to determine the closed area's character. The distinction between open and closed areas was based on a theory of exclusion: the Tribe had lost its inherent authority to zone nonmember land in the open area because it had not excluded non-Indians from that area.(70) Because the Tribe had not excluded non-Indians, it lost the right to determine the essential character of the land (i.e., to zone). Congressional delegation or divestment of power was not an issue, according to the opinion, because Congress had not spoken on zoning.(71)

Trying to discem the effect of Brendale has been difficult due to the inconsistent methodology used by the different opinions and the lack of a clear majority. Thus, practitioners had looked forward to Bourland to pronde the guidance that Brendale did not.(72)

IV. South Dakota v. Bourland

The most recent Supreme Court case concerning the extent of tribal sovereignty in the form of civil jurisdiction over nonmembers is South Dakota v. Bourland.(73) In Bourland, the Court based its reasoning on the principles articulated in Montana, and included the theory of exclusion used by two members of the Court in Brendale. It also used the test for congressional abrogation announced in Dion. In Bourland, the Court ruled that a conveyance of tribal land to the federal government destroyed Indian rights to regulate non-Indian activity on that land when Congress opened it up to non-Indian use.(74) Although the Court began with the proposition that "we usually insist that Congress clearly express its intent to [abrogate Indians, treaty rights],"(75) the Supreme Court in Bourland proc eeded to imply abrogation from congressional silence.(76)

The Court phrased the issue in this manner: "whether the Cheyenne River Sioux Tribe may regulate hunting and fishing by non-Indians(77) on land and overlying waters located within the tribe's reservation but acquired by the United States for the operation of the Oahe Dam and Reservoir."(78) To answer this issue, the Court examined two statutes, the Flood Control Act of 1944(79) and the Cheyenne River Act of 1954,(80) to determine if Congress intended to abrogate the rights reserved by the Tribe in the Fort Laramie treaty.(81) The Flood Control Act authorized the creation of a comprehensive flood control plan along the Missouri River, the eastern border of the Cheyenne River Sioux resenation.(82) The Act also instructed the Army Corps of Engineers to build and operate public parks and recreational facilities in the reservoir areas resulting from the dam projects.(83) Congress directed that these reservoirs be open to the public, subject to any rules and regulations the Secretary of War deemed necessary.(84) At oral argument before the Supreme Court, the Tribe and the United States, as amicus curiae, asserted that these Corps regulations left all pre-existing tribal hunting and fishing regulations in effect on the water project lands. However, the Court declined to defer to the position of the United States on this issue.(85) The second statute at issue was the Cheyenne River Act, by which the Tribe conveyed 104,420 acres of tribal trust land to the United States for the Oahe Dam and Reservoir, reserved specific rights, and ceded all others.(86)

A. The Cheyenne River Reservation and the Fort Laramie Treaty

The history of the Cheyenne River Reservation is a familiar one. The United States government first guaranteed several tribes a large parcel of land for a permanent home. The Fort Laramie Treaty of 1868(87) established the Great Sioux Reservation which included most of what is now South Dakota west of the Missouri River, as well as part of what is now North Dakota. Article II of the treaty promised that the land shall be "set apart for the absolute and undisturbed use and occupation" of the Indians mentioned in the treaty and that "no persons . . . shall ever be permitted to pass over, settle upon, or reside" in the reservation.(88) Thus, the tribes had exclusive use and possession of the reservation lands. Twenty-one years after the Fort Laramie Treaty, a second legislative act significantly reduced the original reservation.(89) The Act of March 2, 1889 divided the Great Sioux Reservation into six smaller reservations, including the Cheyenne River Indian Reservation.(90) This act also authorized agents to allot parcels of the reservation to individual Indians to be held in trust for a period of twenty-five years, after which the Indian allottees were free to alienate their land.(91) As a result, a substantial portion of the reservation is currently held in non-Indian hands.(92) In the 1930s, Congress, recognizing that the assimilationist policy that had driven the allotment era was a failure,(93) passed the Indian Reorganization Act.(94) "Pursuant to [this Act], the Cheyenne River Sioux Tribe enacted a tribal constitution and passed bylaws regulating hunting and fishing on the Reservation" which became the source of this controversy.(95)

B. The Flood Control Act of 1944

In response to massive flooding along the Missouri River Basin, Congress passed the Flood Control Act of 1944.(96) The Act authorized the government to negotiate with landowners along parts of the Missouri River and acquire tracts of riverfront land. The Army Corps of Engineers then eonstructed dams and other water projects, one of which created a reservoir on the Cheyenne River Sioux reservation. The Flood Control Act authorized the Chief of Engineers "to construct, maintain, and operate public park and recreational facilities in reservoir areas."(97) In addition, the Act stipulated that "[t]he water areas of all such reservoirs shall be open to public use generally, without charge, for boating, swimming, bathing, fishing and other recreational purposes."(98) In Bourland, the Court held that these two provisions of the Flood Control Act sufficiently demonstrated congressional intent to abrogate the Tribe's treaty rights to regulate nonIndian hunting and fishing on the reservoir.(99)

C. The Cheyenne River Act of 1954

The Cheyenne River Act contained the terms of an agreement between the United States and the Cheyenne River Sioux Tribe. In exchange for approximately 104,420 acres of tribal trust land to be flooded by the Oahe Dam,(100) Congress appropriated $10,644,014 for payment to the Tribe. The Act contained express provisions both ceding and reserving specific tribal rights.(101) Section two asserted that "[the] sum [paid by the United States] shall be in final and complete settlement of all claims, rights, and demands of said Tribe."(102) In section ten, the Tribe reserved the right to "free access to the shoreline of the reservoir including the right to hunt and fish in and on the . . . shoreline and reservoir, subject, however, to regulations governing the corresponding use by other citizens of the United States."(103) The Court decided that section ten of the Cheyenne River Act, together with section four of the Flood Control Act, which mandated that the reservoir be open to the public, abrogated the Tribe's treaty right to regulate non-Indian hunting and fishing on the taken land.(104)

D. The Lower Courts' Decisions

Until 1988, the Tribe and the state negotiated agreements apportioning regulatory authority over hunting and fishing on the taken land.(105) The Tribe enforced its regulations against all violators, and the state limited its enforcement to non-Indians. But in 1988, negotiations conceming the upcoming deer hunting season proved unsuccessful. The Tribe announced that it would not honor state hunting permits on its reservation, and that it would prosecute violators of tribal regulations in tribal court.(106) The State filed suit(107) in federal court, seeking either an iruunction to prevent the Tribe from regulating non-Indians on the taken land or a declaration that the federal taking of the Tribe's lands reduced the Tribe's authority by withdrawing the lands from the reservation.(108)

The District Court held that section ten of the Cheyenne River Act(109) clearly abrogated the Tribe's treaty right to exclusive use and possession of the former trust lands.(110) Because Congress did not expressly delegate hunting and fishing jurisdiction over nonmembers(111) on the acquired land to the Tribe, the Tribe had no regulatory authority over nonmembers. The District Court recognized that Congress simply did not consider the jurisdiction issue in enacting the Cheyenne River Act,(112) but found that such lack of consideration was not dispositive. To reach its decision, the District Court followed the Montana analysis.(113) Contrary to the rule that congressional intent to abrogate must be clear, the court used the absence of a congressional expression on the jurisdiction issue as the basis for finding that Congress abrogated the Tribe's treaty rights.(114) Finding neither of the two Montana exceptions, a consensual relationship or a threat or effect on the Tribe, the District Court issued a permanent injunction against the Tribe.

The Eighth Circuit disagreed. It distinguished between the two types of the taken land: tribal trust land and non-Indian fee land.(115) The Eighth Circuit found that the Flood Control and Cheyenne River Acts did not abrogate the Tribe's regulatory authority over non-Indians on the former trust lands, and remanded the issue as to the former fee lands to ascertain if one of the Montana exceptions was met.

In an earlier case, the Eighth Circuit held that Congress enacted the Flood Control Act in response to a national need, and that creation of a federal regulatory scheme was "inconsistent with an abrogation of Indians, treaty rights to hunt and fish on their reservations free of state regulation."(116) In Bolbrland, the Eighth Circuit reaffirmed its opinion that "there is simply no indication in the legislative history that Congress even considered Indian rights when it adopted section 4 [of the Flood Control Act]."(117) Turning to the Cheyenne River Act, the Eighth Circuit avoided the tana analysis by focusing on the purposes of the two Acts under which tribal trust land was alienated in Montana and Bourland.(118) In Montana, tribal trust land was alienated pursuant to the Allotment Act, the purpose of which was the destruction of tribal self-government.(119) Thus, tribes generally lose civil regulatory authority over the land ceded under an allotment act. In contrast, according to the Eighth Circuit, the purpose of the Cheyenne River Act was to acquire the property rights necessary for the building and operation of the Oahe Dam and Reservoir, so the Montana analysis was not controlling. The Tribe did not give up all interests in the ceded land. Instead, the Tribe explicitly reserved significant property rights in the taken land, rights that were not inconsistent with the federal government's purpose in taking that land. Thus, the Eighth Circuit concluded that Congress simply did not consider the issue of tribal jurisdiction in enacting the Cheyenne River Act.(120)

Because both the Flood Control and Cheyenne River Acts lacked sufficient evidence of congressional intent to abrogate, the Eighth Circuit, following Dion, found no abrogation.(121) The Eighth Circuit also specifically criticized the lower court for not analyzing the two acts in the manner which the Eighth Circuit thought the Supreme court had dictated.(122) The Eighth Circuit thought that the focus should have been on the purposes of the acts and any interpretation of a jurisdictional issue not decided on the face of the acts must be informed by that purpose.(123) The purpose of the relevant acts in Bourland was to acquire the property rights necessary to build a dam. Since the acts did not speak specifically to jurisdiction, any doubts should be called in favor of the Tribe. The acts themselves and their legislative history simply did not meet the standard of clear evidence of actual consideration and choice to abrogate set out by the Supreme Court in Dion.(124)

For the Eighth Circuit, Montana was not the beginning of the analysis, even though the issue was one of tribal regulatory authority over non-Indians on land not held by Indians. The court first used the Dion test to determine if there was sufficient evidence to find abrogation. Then it applied the Montana presumption of no tribal regulatory authority over non-members on fee lands. Because the Eighth Circuit interpreted the Montana analysis to apply only to former Indian land that had been acquired through an allotment act, it applied the Montana exception only to the 18,000 acres of non-Indian fee land and not to the taken tribal trust lands. Thus, for the Eighth Circuit, the purpose of the act by which tribal land was alienated dictated whether or not the Montana presumption applied.(125) In defense of this method, the court pointed to New Mexico v. Mescalero Apache Tribe,(126) where New Mexico conceded that the Tribe could regulate nonmember hunting and fishing on the reservation, and a unanimous Supreme Court made no mention of a possible conflict with the Montana decision as to the on-reservation land owned by non-Indians.(127)

Using statements in Montana, Brendale, and Dion to guide its analysis of the Flood Control and Cheyenne River Acts, the Eighth Circuit examined the text and the legislative history of both acts and concluded that neither act contained an expression of congressional intent to abrogate that was sufficiently clear to satisfy the requirements of the Court's Dion test.(128)

E. The Supreme Court on Bourland

The Supreme Court's Bourland decision made it clear that the Eighth Circuit's reading of Montana and Dion, as their principles applied to Bourland, was incorrect. The Court found that the Montana principle--that tribal power beyond that necessary to control inner-tribal relations cannot survive without express congressional delegation--applied to the Bourland facts, and that the Dion standard--that abrogation will not be found without clear evidence of congressional intent--was satisfied by the Flood Control and Cheyenne River Acts. The decision also underscored the Court's movement away from tribal sovereignty; references to Montana are notable for the absence of any real discussion of inherent sovereignty or of the Montana exceptions. Further, in a case that turned on the judicial interpretation of two statutes, the majority opinion mentioned canons of construction only once, in the first sentence of its analysis, and failed to find any occasion to apply them.(129)

1. The Montana Analysis

The reason Montana is such an important case in Indian law is this statement: "Exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation."(130) The Bourland Court referred to Montana in nine of the sixteen paragraphs of its analysis section. The Court's virtually exclusive reliance on Montana, a case decided in 1981, gave some validation to the dissent's evaluation that the Montana assertion quoted above "is contrary to 150 years of Indian-law jurisprudence and is not supported by the cases on which it relied."(131) More importantly, the use of Montana as the starting point in a case which involved civil jurisdiction on non-allotted, non-Indian land provides guidance on how the Montana analysis is to proceed in the future.

The Court began its analysis with the Ft. Laramie Treaty and construed it in much the same way as it construed the second Ft. Laramie Treaty in Montana.(132) According to the Court, the treaty "granted"(133) to the Tribe the right to absolute and undisturbed use and occupation of the reservation lands, from which the power to exclude others flows. The power to regulate stems from the power to exclude, so the Tribe also "arguably" possessed regulatory power.(134) The Court defined the Tribe's power solely in terms of those "granted" to them in the treaty.(135) Because the Court tied the power to regulate to the power to exclude, if the Tribe lost its treaty right to exclude, then the Tribe necessarily lost its power to regulate along with it. This method of analysis all but extinguished traditional distinctions between sovereignty and property, tying the right to exercise power over the land to ownership of the land.

In contrast, the dissent found that the Tribe's right to regulate originated from two sources: the treaty and inherent sovereignty.(136) Therefore, even if the Tribe lost the treaty right to regulate, it still possessed a right to regulate nonmembers based on inherent sovereignty. The majority dismissed the dissent's concern as just another expression of the dissent's unwillingness to accept the fact that Montana changed the world of tribal sovereignty. As the majority declared, "the reality [is] that after Montana, tribal sovereignty over nonmembers 'cannot survive without express congressional delegation' . . . and is therefore not inherent."(137) It is unclear what implications this statement has for the Montana exceptions.(138)

The Court made its assumption of the inseparability of sovereignty and property clear in this statement:

Montana and Brendale establish that when an Indian tribe conveys ownership

of its tribal lands to non-Indians, it loses any former right of absolute

and exclusive use and occupation of the conveyed lands. The abrogation of this

greater right [the right to excluded], at least in the context of the type of area at

issue in this case, implies the loss of regulatory jurisdiction over the use of the

land by others.(139) Thus, the Court defined the right to exclude as the greater right and the right to regulate as the lesser right, making the lesser right wholly dependent on the greater right. This dependence allowed the Court to make a decision without even examining the intent behind the Flood Control and Cheyenne River Acts. Congress took the tribal trust lands, paid for them, and opened them to the public. The Tribe reserved some proprietary rights, but failed to reserve regulatory rights. Thus, the Tribe lost the right to absolute and exclusive use of the taken land and therefore, necessarily lost "the lesser-included, incidental power to regulate non-Indian use of[ ] the land[ ]".(140)

Though not required, the Court did examine the Flood Control and Cheyenne River Acts in a cursory manner. The Court's method for ascertaining that these statutes abrogated the Tribe's treaty rights re-emphasized its break with traditional principles of Indian law. The Court did not employ canons of treaty construction. It simply determined that the Cheyenne River Act provision stating that the money paid by the United States to the Tribe "shall be in final and complete settlement of all claims, rights, and demands, . . . reliably indicate[dl that the Government and the Tribe understood the Act to embody the full terms of their Agreement."(141) The presence of this statutory disclaimer, coupled with the specificity of the reserved rights, might help to explain this case. By explicitly reserving only certain, limited rights, and by including a clause disclaiming all other rights, the Tribe arguably gave up all rights except those listed as reserved.

Responding to the Eighth Circuit's decision, the Court insisted that the statutory inquiry focus not on the intent of Congress, but, rather, on the effect of the statute. The Court criticized the Eighth Circuit's interpreation that Montana did not apply to the Bourland situation because the former involved land lost through the Allotment Act whereas the latter concerned land taken by the federal government.(142) The Court corrected the Eighth Circuit's reliance on congressional purpose by stating, "[t]o focus on purpose is to misread Montana."(143) Thus, what was really relevant about the Flood Control Act and Cheyenne River Act was not the congressional purpose behind them, but the actual effect the acts had by opening the former tribal trust lands to the public.(144)

By allowing the effect of a statute to determine whether it abrogated a treaty right, the Court infringed on Congress, role as the sole entity with power to abrogate treaties.(145) Under the Court's analytic scheme, what Congress intended to do was irrelevant. The process that Congress went through to frame the statute was apparently unimportant. All that mattered to the Court was the statute's effect. The questions of whether Congress anticipated the effect or not, or whether Congress desired the effect or not, were not injected into the Court's analysis. The Court's "effects" test enables the judiciary to be the arbiter of treaty rights, as opposed to the interpreter of Congress, acts. In this way, the Court in Bourland usurped Congress, role in Indian affairs and replaced it with judicial hindsight. The Court did this during a time when the express policy of the federal government is not to destroy tribes, but to foster self-determination and provide assistance to them.(146) The focus on a statute's effect is, for tribal advocates, a dangerous reading of Montana and it is worth noting that only two members of the Court disagreed with it.

2. The Dion Standard

The application of the Dion standard of clear evidence of actual consideration and choice to abrogate(147) in Bourland is disappointing to tribal advocates. The Court found Dion to be satisfied without a showing of clear evidence that Congress considered the conflict between treaty rights to regulate and the Flood Control and Cheyenne River Acts, and chose to resolve that conflict by abrogation. Rather than apply the Bourland facts to Dion's three-part test, the Court chose to satisfy the Dion requirements by analOgy(148)

The Court dispatched with the Dion test by stating that the Court could not explain the Flood Control and Cheyenne River Acts "except as indications that Congress sought to divest the Tribe of its right to ,absolute and undisturbed use and occupation, of the taken area."(149) This statement in itself is not objectionable: no one argued that the Tribe retained the right to exclude others from the taken land.(150) However, because the Court made the right to regulate dependent on the right to exclude, it limited its Dion analysis to the right to exclude and did not extend it to the right to regulate. Because Congress knew it was opening up former tribal lands to the public, the Court found the Dion test for abrogation of the right to exclude to be satisfied. The Court did not point to any evidence that Congress knew that the public access provision of the Flood Control Act would affect tribal rights to regulate, actually considered and balanced the competing interests, and then decided to abrogate the treaty right. Because some sections of the Cheyenne River Act dealt specifically with tribal rights,(151) it was clear that Congress had an idea that some tribal treaty rights were at stake. However, it was hardly clear that Congress was aware of the potential conflict between the Act's flood control projects and tribal rights to regulate non-Indians.(152) Nor was it clear that Congress actually considered the Tribe's right to regulate when it was considering the Act, and then decided to abrogate those rights. By allowing the Dion test to be satisfied without reference to the tribal right at issue here, the right to regulate, the Court significantly reduced the potentially rigorous requirements of clear evidence, actual consideration, and decision to abrogate.

3. Bourland's Ramifications

The Court's Bourland decision held that the Flood Control and Cheyenne River Acts divested the Tribe of its treaty right to regulate non-Indian hunting and fishing on the taken land, absent sufficient evidence to satisfy one of the Montana exceptions. However, Bourland could have limited application because the clauses in the Cheyenne River Act were so specific. The Tribe was paid for the settlement of all claims. The Tribe specifically reserved mineral, timber, grazing, and hunting and fishing rights, but neglected to reserve regulatory jurisdiction. This failure to reserve jurisdiction and the express disclaimer of any claims other than those reserved narrows the Bourland holding.

However, Bourland is still troubling for the future of Indian law because of its expansion of the Montana analysis. The Court's reading of Montana all but shut the door on inherent sovereignty over non-Indians and neglected to emphasize the limits that the Montana exceptions place on its application, implying that they are weak at best.(153) The traditional analysis that the dissent engaged in, focusing on canons of construction and principles of inherent sovereignty, yielded only two votes, fewer than in either Montana or Brendale.(154) Bourland expanded Montana to apply to all cases where a tribe is divested of its land, even if by condemnation by the federal government. It appears that the only sure way for a tribe to preserve its jurisdictional rights over non-Indians on alienated land is by an explicit and express congressional delegation.(155) Absent that, a tribe faces the substantial hurdle of expressing the second Montana exception (a threat to the political integrity, economic security or health or welfare of the tribe) in a way that convinces a court first that the exception is relevant, and second that the court should apply it. The Bourland opinion gives little indication of how a tribe could demonstrate that the exception is met.


The Supreme Court's decision in Bourland is also important for what it did not decide. The Court decided that the Tribe could not regulate hunting and fishing by non-Indians on the taken land because the Flood Control and Cheyenne River Acts abrogated the Tribe's treaty right to exclusive possession of the taken lands, thereby abrogating the tribal right to regulate non-Indians on that land. However, the Court did not rule specifically on the power of the state to regulate, because South Dakota sought only a judicial determination of the Tribe's regulatory jurisdiction. Thus, the Court was limited to construing the statutory language of the Flood Control and Cheyenne River Acts, neither of which authorized the state to exercise regulatory authority over the taken land. The Flood Control Act states that the use of the federal water projects by the public is subject to "such rules and regulations as the Secretary of War may deem necessary."(156) The Cheyenne River Act states that "[t]he Tribe shall have . . . the right to free access to the shoreline of the reservoir including the right to hunt and fish . . ., subject, however, to regulations governing the corresponding use by other citizens of the United States."(157) These acts give regulatory authority over the taken land to the Army Corps of Engineers, not to the states.

In the Flood Control Act, Congress empowered the Secretary of War to make the rules and regulations governing the public's use of the projects, (158) giving the Corps the primary regulatory authority over the water project lands. Under this authority, the Corps has opted not to promulgate its own hunting and fishing regulations. Instead, Corps regulations state that hunting and fishing on the taken land is governed by federal, state, and local laws.(159) This section first argues that the Corps regulations, recognizing "local" laws, sanction tribal jurisdiction, as suggested by the dissent(160) and urged upon the Court by the Tribe and the United States as amicus curiae.(161) This section then contends that even if the Corps current regulations do not sanction tribal regulation, they should be amended to permit the Tribe to regulate non-Indian hunting and fishing on the taken lands.

A. The Corps Regulations

The Tribe argued that the Corps regulations allow it to regulate hunting and fishing by non-Indians. The regulations state, "Hunting, fishing, and trapping are permitted .... All Federal, state and local laws governing these activities apply on project lands and waters ...."(162) The United States, as amicus curiae, joined with the Tribe to argue that the quoted section "leaves all pre-existing State, local, and tribal hunting and fishing regulations in effect on the project lands."(163) The dissent agreed that not only was tribal regulation consistent with the authority delegated by Congress to the Corps, but also that concurrent jurisdiction over hunting and fishing was clearly what the Corps regulations envisioned.(164) The dissent stated that "tribal" was included in the term "local."(165) Therefore, the

Corps regulations sanctioned tribal regulation of hunting and fishing. After all, the Tribe and the state regulated concurrently until 1988, so the Corps must have interpreted its own regulations as allowing concurrent jurisdiction. As long as this interpretation was reasonable, it was entitled to judicial deference.(166)

The majority declined to defer to the position of the United States.(167) The Court reached this decision both because the Tribe did not rely on the Corps regulations in the lower courts and because the United States asserted its position on this issue only at oral argument and did not mention it in its brief.(168) In fact, rather than view the Corps regulations as allowing the Tribe to continue to regulate, the majority used Congress, delegation of authority to the Corps as "excplicit evidence that Congress"(169) knew the taking of the tribal land would deprive the Tribe of authority to regulate. The majority answered the "local" includes "tribal" argument by pointing to another Corps regulation in a different part of the Code of Federal Regulations which mentions state, local, and tribal in the same sentence.(170) According to the Court, this indicated that the Corps does make a distinction between local and tribal; therefore, the latter is not included in the former.(171) However, the majority failed to address the fact that the State and the Tribe co-regulated for some time.

When a statute is silent or ambiguous concerning a particular issue, Congress implicitly delegates interpretative power over that issue to the agency charged with administering the statute. If the agency's interpretation is reasonable, courts defer to that interpretation.(172) A court may not reinterpret the ambiguity or silence as it sees fit.(173) In Bourland, the statutes involved were arguably not clear; they did not contain explicit language specifically taking away the Tribe's right to regulate non-Indian hunting and fishing. In such a situation, the Tribe should have emphasized the Corps interpretation of the allocation of regulatory power. If the Tribe had made this argument, the Court would have found that the Corps regulations sanctioned state and local laws, and migm have found that the Corps interpretation of local included tribal.(174)

B. Changes in the Corps Regulations

Even if a court interprets the Corps current regulations to prohibit tribal regulation of non-Indian hunting and iishing on the taken land, the federal trust responsibility binds the Corps to protect tribal rights, so the Corps should change its regulations to permit the Tribe to regulate. The iederal government must heed its trust obligations in conducting its affairs with Indian tribes.(175) The trust responsibility(176) began as a basic guarantee by the United States to preserve the "territorial and governmental integrity of the tribes."(177) Presumably, when Congress delegated regulatory jurisdiction over the taken land to the Corps, it acted in accordance with the trust obligation. The trust responsibility does not cease once Congress has delegated authority to another organ of the federal government.(178) Therefore, the Corps, exercise of its congressionally delegated authority nust be conducted in a manner that does not violate the trust relationship.(179) However, the origin of an enforceable trust obligation is no longer certain. In claims for monetary relief (i.e., damages for mismanagement of tribal resources), the Court seems to require a clear legislative statement, either in the statute or its legislative history, to create judicially enforceable obligations.(180) However, the situation in Bourland is different because the Tribe is not seeking damages. This paper suggests only a change in Corps regulations based on the general trust responsibility, not that the Tribe has a cause of action to sue the Corps.(181)

The suggestion that the Corps expressly delegate its authority to regulate non-Indians to the Tribe is not a novel idea. The clearest example of the operation of this dynamic is in environmental law. Congress has amended all major pieces of environmental legislation that have come up for reauthorization since 1986 to include provisions authorizing the Environmental Protection Agency to treat tribes as states for the purposes of parts of the environmental programs.(182) Congress, amendment process began after a Ninth Circuit case(183) that involved Washington State's challenge to EPA's authority to exclude Indian lands from an approved state Resource Conservation and Recovery Act (RCRA) program. EPA interpreted RCRA's silence as to a state's authority to extend its RCRA program into a reservation as an implicit congressional delegation to EPA of the authority to make that decision. The Ninth Circuit found this to be a reasonable interpretation of the statute.(184) Judicial deference to agency interpretation demanded that the agency's determination not be disturbed.(185) One reason the court ruled that EPA's decision was reasonable was that the result was consistent with the trust relationship and the role of the United States as "primary guarantor of Indian interests" against state encroachment.(186) Thus, courts have recognized that the tribal trust relationship is to inform decisions made by various bodies of the federal government.

The Corps should follow EPA's lead in dealing with tribes. In EPA's analysis of its most recent policy statement,(187) EPA discussed the trust responsibility,(188) noting that the agency "recognizes the responsibility owed by the Federal government as trustee for the affairs of Indian Tribes."(189) The Corps, too, should take responsibility as an agent of the federal government to protect tribal interests by changing its regulations to explicitly authorize the Tribe to regulate non-Indian hunting and fishing on the taken land.


In his concurrence to the basal case in Indian law, Worcester v. Georgia,(190) Justice McLean was curiously prescient. McLean predicted a time when circumstances would mandate that the federal exercise of exclusive power over tribes end and the exercise of a state's authority begin.(191) Justice McLean did not attempt to predict when that time would arrive. In fact, he indicated that it may not even be a judicial question.(192) However, the current Supreme Court has seen fit to answer McLean's question by taking upon itself the task of abrogating treaties and announcing an increasing number of areas in which the state may intrude. The McLean concurrence has become the Rehnquist Court's majority, and Chief Justice Marshall's majority in Worcester(193) has become the Rehnquist Court's dissent.

McLean's opinion in Worcester reflected a preference for state government jurisdiction over tribes. While Chief Justice Marshall's sentiments initially prevailed in the Worcester case, it seems that McLean has gotten the last word after all. While McLean recognized that the tribes do possess some formulation of sovereignty, he, like the Rehnquist Court, traced the origin of that sovereignty to federal recognition. Whereas Marshall felt that tribal sovereignty could be lost only through affirmative federal action, McLean, like the Court today, felt that sovereignty could be lost when a tribe's exercise of it became inconvenient to a state. In Bourland, the Supreme Court decided that that time had come, and it whittled away at tribal sovereignty by allowing congressional silence to abrogate a tribe's treaty rights.(194) By tying the right to regulate to the right to exclude, the Bourland decision ensures that reservations that have fee lands within their borders may have substantial areas where tribes can regulate only if they can demonstrate that one of the Montana exceptions, consensual relations or a threat to or effect on the tribe, applies. This idea that sovereignty is a lesser included part of the right to exclude enables judges to become the de facto terminators of tribal sovereignty. In a period where the articulated policy of the United States favors Indian sovereignty,(195) the Court's decision further divests tribes of their ability to exercise authority over their land and the people on it. (1) This paper discusses recent cases in which the Court has circumscribed tribal power to regulate activities on reservations. The principal cases are Montana v. United States, 450 U.S. 544 (1981), Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408 (1989), and South Dakota v. Bourland, 113 S. Ct. 2309 (1993). See infra parts III and IV. For reductions of tribal criminal jurisdiction, see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (holding that the tribe had no criminal jurisdiction over nonmembers); Duro v. Reina, 495 U.S. 676 (t990) (holding that the tribe had no misdemeanor jurisdiction over nomnembers). See generally K. Bliss Adams, Order in the Courts: Resolution of Tribal/State Criminal Jurisdictional Disputes, 24 Tulsa L.J. 89 (1988). For extensions of state civil jurisdiction onto reservations, see Washington v. Confederated Tribes, 447 U.S. 134 (1980) (state could tax cigarette sales on-reservation to non-Indians and nonmember Indians in spite of a tribe-imposed cigarette tax approved by the Secretary of the Interior); Rice v. Rehner, 463 U.S. 713 (1982) (state could regulate liquor sales on reservation); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) (state could tax mineral severance from non-Indian leases of reservation land). See generally Sandra Hansen, Survey of Civil Jurisdiction in Indian Country 1990, 16 Am. Indian L. Rev. 319 (1991). (2) See, e.g., McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973) (beginning the shift away from sovereignty analysis as a bar to state jurisdiction to a preemption analysis in which sovereignty is relegated to the status of a "backdrop"); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1979) (preemption analysis threshold reduced; finding of no state authority to tax premised on the comprehensiveness of the federal regulatory scheme and on the state's failure to show a legitimate regulatory interest); see also Karl J. Kramer, The Most Dangerous Branch: An Institutional Approach to Understanding the Role of the Judiciary in American Indian Jurisdictional Determinations, 1986 Wis. L. Rev. 989 (discussing the deleterious effects of recent Supreme Court decisions on tribal sovereignty); Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon the Earth"--How Long a Time Is That?, 63 Cal. L. Rev. 601 (1975) (describing judicial tests to find abrogation of treaty rights). (3) See Milner S. Ball, Constitution, Court, Indian Tribes, 1987 Am. B. Found. Res. J. 1 (discussing judicial approval of state regulations that undermine tribal sovereignty). (4) See generally Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. Rev. 1 (1991). Singer argues that the Court treats Indian-owned property and non-Indian-owned property differently, to the detriment of the tribes. When a tribe would benefit from being viewed as sovereign, the Court treats it as a private association to prevent it from exercising power over nonmembers. When a tribe would benefit from being treated as a property owner, the Court treats it as sovereign so that Congress can abrogate treaties without financial consequences. As a result, the tribes lose on both counts. Id. at 55. (5) The original idea behind reservations was to confine Indians to a specific territory. A tribe exchanged its claims to aboriginal lands for title to specific tracts, which were originally guaranteed to remain intact "forever." David H. Getches et al., Federal Indian Law: Cases and Material 167-69 (3d ed. 1993). In 1887, Congress passed the General Allotment Act (Dawes Act). General Allotment Act, ch. 119, 1-6, 8, 10-11, 24 Stat. 388 (1887) (codified as amended at 25 U.S.C. [subsections] 331-34, 339, 34142, 348-49, 354, 381 (1988)). Individual Indians received allotted parcels of reservation lands which were held in trust for twenty-five yeals. Congress allowed settlers to purchase any surplus reservation lands. At the end of the trust period, much of the land allotted to Indians passed into non-Indian hands through various means. In 1934, Congress passed the Indian Reorganization (Wheeler-Howard) Act, which repudiated the policy of assimilation which drove the allotment era. Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. [subsections] 461, 462, 464, 465, 466-70, 471-73, 474, 475, 476-78, 479 (1988)). However, by 1934, Indian landholdings had diminished from 138 million acres to 52 million acres. Charles F. Wilkinson, American Indians, Time and the Law 8 (1987). On any one reservation all or many of the following forms of ownership may exist: tribal trust land, allotted trust land held by Indians, fee land held by Indians, fee lands held by non-Indians, federal public land, and state land. The resulting checkerboard pattern of reservation land holdings is the source of many of today's jurisdictional problems. (6) The language in a 1979 dissent by Justice Powell, joined by Justice Stewart and now Chief Justice Rehnquist, indicates that some members of the Court seem to view tribes as special interest groups who are already receiving preferential treatment, and who are still seeking additional special rights: "These [fishing] rights, privileges, and exemptions--possessed only by Indians--are quite substantial. I find no basis for according them additional advantages." Washington v. Washington State Commercial Passenger Fishing Vessel Ass,n, 443 U.S. 658, 708 (1979) (Powell, J., dissenting). (7) The most generic distinction courts make is between Indians and non-Indians. However, when dealing with on-reservation issues, courts often make a finer distinction between member Indians and nonmember Indians. Member Indians belong to the tribe or band which governs the reservation. Nonmember Indians are not members of the governing tribe or band. (8) See Alex Tallchief Skibine, Applicability of Federal Laws of General Application to Indian Tribes and Reservation Indians, 25 U.C. Davis L. Rev. 85 (1991). (9) 113 S. Ct. 2309 (1993). (10) Judge Canby notes four persistent "themes" that guide Indian law: tribes are sovereigns with powers of self-government; Congress has plenary power over tribes and their sovereignty; absent Congressional delegation to states, the federal government alone regulates tribes; the federal government is bound by its trust relationship to protect tribes. William C. Canby, Jr., The Status of Indian Tribes in America Today, 62 Wash. L. Rev. 1, 1-2 (1987). (11) Flood Control Act of 1944, ch. 665, 58 Stat. 887 (codified as amended at 16 U.S.C. [sections] 460d (1988)). (12) Montana v. United States, 450 U.S. 544 (1981); Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408 (1989). See infra section III. (13) Canby, supra note 10. (14) Congress has the sole power to abrogate treaties; however, when legislation is inconsistent with treaty rights and does not specifically address the conflict, the courts, function is to determine if Congress intended to abrogate the treaty. See William J. Canby, Jr., American Indian Law in A Nutshell 93 (2d ed. 1988). AS discussed infra in text accompanying notes 145-46, by looking at the effects of legislation the Court fails to fulfill its function of ascertaining congressional intent. (15) 450 U.S. 544 (1981). (16) 492 U.S. 408 (1989) (17) The Marshall Trilogy consists of: Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823) (tribes hold the title right of occupancy to their lands which only the federal government can divest them of); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) (established the trust relationship between the United States and the tribes: tribes characterized as domestic dependent nations whose relationship to the United States is like that of a ward to his guardian); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (defined geography-based jurisdiction: tribes have inherent sovereignty within their reservations and state laws have no applicability to the activities of either Indians or non-Indians within reservation borders). (18) United States v. Wheeler, 435 U.S. 313, 331 (1978); Lone Wolf v. Hitchcock, 187 U.S.553, 565 (1903). (19) Lone Wolf, 187 U.S. at 566; Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594 (1977). See generally Mike Townsend, Congressional Abrogation of Indian Treaties: Reevaluation and Reform, 98 Yale L.J. 793 (1989). (20) See generally Robert Laurence, The Bald Eagle, the Florida Panther and the Nation's Word: An Essay on the "Quiet" Abrogation of Indian Treaties and the Proper Reading of United States v. Dion, 4 J. Land Use & Envtl. L. 1 (1988) (arguing for adherence to canons of construction and against "quiet" abrogation of treaty rights by statutes with broad national application). (21) Wilkinson, supra note 5, at 47; Wilkinson & Volkman, supra note 2, at 617. (22) See generally Reid Peyton Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213 (1975); Adele Fine, Off-Reservation Enforcement of the Federal-Indian Trust Responsibility, 7 Pub. Land L. Rev. 117 (1986); Nell Jessup Newton, Enforcing the Federal-Indian Trust Relationship after Mitchell, 31 Cath. U. L. Rev. 635 (1982). (23) Tribes are "domestic dependent nations . . . in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). (24) United States v. Creek Nation, 295 U.S. 103, 110 (1935). (25) See, e.g., United States v. Mitchell, 445 U.S. 535 (1980); United States v. Mitchell, 463 U.S. 206 (1983); Morton v. Ruiz, 415 U.S. 199, 236 (1974); Seminole Nation v. United States, 316 U.S. 286, 297 (1942); Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113 (1919). (26) Canby, supra note 14, at 90; see, e.g., Bryan v. Itasca County, 426 U.S. 373, 392-93 (1976); Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918). (27) See, e.g., McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174 (1973); Carpenter v. Shaw, 280 U.S. 363, 367 (1930); Winters v. United States, 207 U.S. 564, 576-77 (1908). (28) [This Court] has held that the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side. "[T]he treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians." Washington v. Washington State Commercial Passenger Fishing Vessel Ass,n, 443 U.S. 658, 675-76 (1979) (quoting Jones v. Meehan, 175 U.S. 1, 11 (1899)). (29) See, e.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970); United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938); Starr v. Long Jim, 227 U.S. 613, 622-23 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582 (1832). (30) See, e.g., Tulee v. Washington, 315 U.S. 681, 684-85 (1942). (31) See Wilkinson & Volkman, supra note 2, at 617 (describing various rules and suggesting that abrogation be allowed only upon a showing of express legislative action). (32) Leavenworth, L. & G.R.R. v. United States, 92 U.S. 733, 741 (1875); see also Wilkinson Volkman, supra note 2, at 627-630, 645-659. (33) Seminole Nation v United States, 316 U.S. 286, 296-97 (1942). (34) Menominee Tribe v. United States, 391 U.S. 404, 413 (1968) (Congress may not abrogate treaty rights in a backhanded way); Wilkinson & Volkman, supra note 2, at 625-26. (35) Rosebud Sioux Tribe v Kneip, 430 U.S. 584 (1977); Mattz v. Arnett, 412 U.S. 481, 505 (1973). (36) United States v. Santa Fe Pac. R.R., 314 U.S. 339, 353 (1941); United States v. Shoshone Tribe, 304 U.S. 111, 118 (1938); Wilkinson & Volkman, supra note 2, at 623-25. (37) See Wilkinson & Volkman, supra note 2, at 623-34. (38) 476 U.S. 734 (1986). (39) Eagle Protection Act, ch. 278, 54 Stat. 250 (1940) (codified as amended at 16 U.S C. [subsections] 668-668d (1988 & Supp. V 1993); Migratory Bird Treaty Act, ch. 128, 40 Stat. 755 (1918) (codified as amended at 16 U.S.C. [subsections] 703-712 (1988 & Supp. V 1993)); Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (1973) (codified as amended at 16 U.S.C. [subsections] 1531-1541 (1988 & Supp. V 1993)). (40) The Court found that the Eagle Protection Act did abrogate Dion's treaty right to hunt eagles and therefore the Court did not discuss the Endangered Species Act's effect on treaty rights. Dion, 476 U.S. at 745 (41) Id. at 73940. (42) Under the Eagle Protection Act it is a federal crime to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner any bald eagle commonly known as the American eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof." 16 U.S.C. [sections] 668(a) (1988). (43) Id. (44) Dion, 476 U.S. at 740. (45) The provision allowing taking of eagles under permit for the religious purposes of Indian tribes is difficult to explain except as a reflection of an understanding that the statute otherwise bans the taking of eagles by Indians, a recognition that such a prohibition would cause hardship for the Indians, and a decision that the problem should be solved not by exempting Indians from the coverage of the statute, but by authorizing the Secretary to issue permits to Indians when appropriate. (46) See id. at 74143. It is unclear whether the text of the Eagle Protection Act alone would have been sufficient to find clear evidence of congressional intent to abrogate because the Court also discussed the statute's legislative history. Congress passed the original Eagle Protection Act in 1940. That Act applied only to bald eagles and did not mention Indians. In 1962, Congress considered amending the Act to extend its protection to golden eagles. The Interior Department sent a letter to the subcommittee working on the amendment which noted the importance of eagles in Indian religion and recommended the permit exception. See H.R. Rep. No. 1450, 87th Cong., 2d Sess. 4 (1962). (47) Once again, after its consideration of the legislative history of the Eagle Protection Act, the Court was careful to apply the test: "Congress thus considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception that delineated the extent to which Indians would be permitted to hunt the bald and golden eagle." Dion, 476 U.S. at 74344. (48) See generally Sally J. Johnson, Honoring Treaty Rights and Conserving Endangered Species After United States v. Dion, 13 Pub. Land L. Rev. 179 (1992); Robert Laurence, The Abrogation of Indian Treaties 8y Federal Statutes Protective of the Environment, 31 Nat. Resources J. 859 (1991). For criticism of commentators who viewed Dion as a defeat for tribal interests, see Robert Laurence, Indian Treaties and Their Abrogation by Statutes of General Applicability: A Not-Entirely Nonpartisan Essay on "Quiet" Abrogations, "Actual" Consideration, and the Unhappy Reception Given United States v. Dion, 1989 B.Y.U. L. Rev. 853. (49) See Bourland, 113 S. Ct at 2319. (50) For commentary on Montana and Brendale, see Brian J. Campbell, Tribal Power to Zone Nonmember Land Within Reservations: The Uncertain Status of Retained Tribal Power over Nonmembers, 21 Ariz. ST. L.J. 769 (1989) (arguing that the Supreme Court trend towards limiting tribal power over nonmembers on reservation departs from traditional analysis). (51) Montana was a six to three decision. Justice Stewart wrote the opinion in which Chief Justice Burger and Justices White, Powell, Rehnquist and Stevens joined. Justice Blackmun wrote an opinion dissenting in part in which Justices Brennan and Marshall joined. (52) Unfortunately, the four to three to two decision in Brendale provided little clear guidan- e for determining civil jurisdiction issues on reservation. (53) Douglas A. Brockman, Congressional Delegation of Environmental Regulatory Jurisdictlon: Native American Control of the Reservation Environment, 41 Wash. U. J. Urb. & Contemp. L. 133, 149 (1992). (54) Montana, 450 U.S. at 551 (citation omitted). (55) Id. at 566-67. (56) Id. at 564 (citations omitted). (57) Because the Montana decision runs counter to more than a century of Indian law, it was a particularly painful defeat for tribes. See WILKINSON, supra note 5, at 50. (58) A tribe may regulate, through taxation, licensing, or other means, the activities on nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases or other arrangements." Montana, 450 U.S. at 565. (59) Id. at 566. (60) Wilkinson, supra note 5, at 51. (61) 492 U.S. 408 (1989) (62) Brendale was a consolidated case concerning two parcels of nonmember fee land on the heavily allotted Yakama reservation. Id. at 415. (63) For commentary on Brendale, see J. Bart Wright, Tribes v. States: Zoning Indian Reservations, 32 Nat. Resources J. 195, 205 (1992) (concluding that the Court seems to be focusing on a formulation of tribal power that emanates from Congress); Cathy W. Schindler, Indian Civil Jurisdiction Over Land Held in Fee by Non-Indians: A Judicial Chal- lenge in Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 7 COOLEY L. REV.63,64 (l990) (arguing that the reasoning in Brendale is flawed because it failed to produce a consistent legal approach to answer the jurisdiction question, and instead used six different legal theories). (64) Brendale, 492 U.S. at 433 (Stevens, J., concurring and deciding). Stevens, opinion is the deciding opinion because it added two votes to White's four, holding that the Tribe lost the right to zone on the taken land, at least in open areas. However, Stevens agreed with the dissent that the Tribe retained right to zone in "closed areas," making a total of five votes for retained tribal authority over some of the taken land. (65) Justices White, Scalia, Kennedy and Chief Justice Relinquist. Brendale, 492 U.S. at 4l4, 428 (White, J.). (66) We find it significant that the so-called second Montana exception is prefaced by the word "may"--"[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-lndians on fee lands within its reservation." This indicates to us that a tribe's authority need not extend to all conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," but instead depends on the circumstances. Brendale, 492 U.S. at 428-29 (White, J.) (citation omitted). (67) Justices Blackmun, Brennan and Marshatl. Id. at 448-68 (Blackmun J. dissenting). (68) Id. (69) See generaUy id. at 433-48 (Stevens, J., concurring). (70) The reason why such a large number of non-Indians own property on reservations is often due to congressional action (e.g., the Dawes Act), and not Indian action or inaction. See supra note 5. (71) Brendale, 492 U.S. at 433 (Stevens, J., concurring). (72) See Timothy R. Malone & Bradley B. Furber, Regulatory Jurisdiction over Nonmembers, Land within Indian Reservations, Nat. Resources & Env't, Spring 1993, at 14, 55; Frank Pommersheim, Tribal-State Relations: Hope for the Future?, 36 S.D. L. REV. 239 (1991). (73) 113 S. Ct. 2309 (1993). (74) Id. at 2316-17. (75) Id. at 2316. (76) Bourland was a seven to two decision. Justice Thomas wrote the majority opinion, joined by Chief Justice Rehnquist and Justices White, Stevens, O Connor, Scalia, and Kennedy. Justice Blackmun filed a dissenting opinion, joined by Justice Souter. (77) The District Court ruled that the tribe had no regulatory authority over nonmember Indians. However, the Eighth Circuit vacated that portion of the opinion because the issue of regulatory jurisdiction over nonmember Indians was neither pled nor tried. South Dakota v. Bourland, 949 F.2d 984, 990 (8th Cir. 1991), rev,d, 113 S. Ct. 2309 (1993). (78) Bourland, 113 S. Ct. at 2313. (79) Flood Control Act of 1944, ch. 665, 58 Stat. 887 (codified as amended at 16 U.S.C. [sections] 460d (1988)). (80) Cheyenne River Act of Sept. 3, 1954, ch. 1260, 68 Stat. 1191 (not codified). (81) Treaty with the Sioux Indians, Apr. 29, 1868, 15 Stat. 635. (82) Flood Control Act 9, 58 Stat. at 891. (83) Id. [sections]4, 58 Stat. at 889-90. (84) Id. [sections]4, 58 Stat. at 890. (85) See discussion infra part V. (86) See discussion infra part IV.C. (87) Fort Lararnie Treaty of Apr. 29, 1868. 15 Stat. 635. (88) Treaty with the Sioux Indians, supra note 81, 2, at 636. (89) Act of Mar. 2, 1889, ch. 405, 25 Stat. 888 (not codified). (90) Id. [sections]4, 25 Stat. at 889. (91) Id. [subsections] 10, 11, 25 Stat. at 891. (92) The amount of land currently held in trust either for the tribe or for individual Indians is roughly 5096 of the reservation s acreage. Bourland, 949 F.2d at 987. (93) See generally Getches et al, supra note 5, at 215-29 (3d ed. 1993); Canby, supra note 14, at 23-25. (94) Indian Reorganization (Wheeler-Howard) Act of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. [subsections] 461, 462, 464, 465, 466-70, 471-73, 474, 475, 476-78, 479 (1988)). The Act reversed the assumptions underlying the allotment period and sought to aid the tribes in setting up their own governments. It also extended indefinitely the trust period for existing allotments still in trust. See Canby, supra note 14, at 23-25. (95) BourCand, 949 F.2d at 987. (96) [sections] 4, 58 Stat. 887. In 1950, Congress passed Public Law 870 which authorized the Army and the Department of Interior to negotiate a contract with the Cheyenne River Tribe and the Standing Rock Sioux Tribe for land needed for the Oahe Dam and Reservoir. Pub. L. No. 870, 81st Cong., 2d Sess., 64 Stat. 1093 (1950). (97) Flood Control Act of 1944 [sections] 4, 58 Stat. at 889. (98) Id. at 890. (99) Bourland, 113 S. Ct. at 2317. (100) The federal government also acquired 18,000 acres of on reservation non-lndian fee land. See Bourland, 949 F.2d at 995 (citing Appellees Brief at 1). (101) In [sections] 6, the Tribe reserved all mineral rights at or below the surface of the taken area. In [sections] 7, the Tribe reserved timber rights on the taken area In [sections] 9, the Tribe reserved the right for its members to live on the taken area until the Corps closed the gates of the Oahe Dam. In [sections] 10, the Tribe reserved the right to graze stock and to hunt and fish on the taken land. Act of Sept. 3, 1954, [subsections] 6-7, 9-10, 68 Stat. 1191. The agreement did not change the reservation boundaries. See infra note 108. (102) Id. [sections] 2. (103) Id. [sections] 10. (104) If the Flood Control Act leaves any doubt whether the Tribe retains its original treaty right to regulate non-hunting and fishing on lands taken for federal water projects, the Cheyenne River Act extinguishes all such doubt." Bourland, 113 S. Ct. at 2317. (105) Bourland, 949 F.2d at 998. (106) Bourland, 113 S. Ct. at 2314. The Tribe insisted that the sanctions imposed on violators would be purely civil, while the state argued that the tribal regulations would be enforced with criminal sanctions. Id. at 2315 n.7. While the District Court disrnissed the issue of tlibal prosecutorial jurisdiction for ripeness concerns, the Supreme Court emphasized that the inherent sovereignty of the Indian tribes does not extend to criminal jurisdiction over non-Indians who commit crimes on the reservation." Id. (quoting Duro v. Reina, 495 U.S. 676, 684 (1990), and citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978)). (107) Bourland, 949 F.2d 984 (1991). The State filed against the Chairman of the Cheyenne River Sioux Tribe, Gregg Bourland, and the Director of Cheyenne River Sioux Tribe Game, Fish and Parks, Dennis Rousseau. (108) The District Court held that the Cheyenne River Act did not diminish the Cheyenne River Reservation, and the Eighth Circuit agreed that the Act did not alter the reservation s boundaries. Bourland, 949 F.2d at 987, 990 (citing Solem v. Bartlett, 465 U.S. 463, 481 (1984)) (109) The said Tribal Council and the members of said Indian Tribe shall have, without cost, the right of free access to the shoreline of the reservoir including the right to hunt and fish in and on the aforesaid shoreline and reservoir, subject, however, to regulations governing the corresponding use by other citizens of the United States. [sections] 10, 68 Stat. 1191, 1193. (110) Bourland, 949 F.2d at 994. (111) The District Court ruled on the issue of the Tribe s regulatory authority over nonmembers, but the Eighth Circuit vacated that portion of the opinion because the issue of regulatory jurisdiction over nonmembers was neither pled nor tried. Id. at 990. (112) Id. at 994 (113) The District Court did not distinguish between the conveyance of the tribal trust lands and the non-Indian owned fee lands. (114) Bourland, 949 F.2d at 994. (115) Bourland, 949 F.2d at 995. While the Eighth Circuit distinguished the 104,420 acres of taken trust lands from the 18,000 acres of taken non-lndian fee land, this distinction is not discussed in this note because the Supreme Court did not distinguish between the two. [nstead, the Court stated that the issue presented in Bourland encompassed the Tribe s regulatory authority over both categories of the taken land. Bourland, 113 S. Ct. at 2315 n.8. Further, the Tribe did not appeal the part of the District Court opinion which found that the rribe had no regulatory jurisdiction over non-Indian hunting and fishing on non-Indian fee land. Bourtand, 949 F.2d at 989 n.11. The Eighth Circuit remanded the jurisdictional issue as it related to the 18,000 acres of non-trust lands because it found that Montana applied to that parcel. Id. at 995. The Supreme Court also remanded for a decision on the Montana exceptions, but as they applied to both parcels of land. However, in the original case, the District Court applied the Montana analysis to the entire taken area and found that neither of the Montana exceptions was met. Bourtand, 113 S. Ct. at 2320. (116) Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 826 (8th Cir. 1983). (117) Bourland, 949 F.2d at 992 (quoting (118)Bourland, 949 F.2d at 993. (1l9)Id. at 991. (120)Id. at 994 (121)Id. (122)Id. (123)Id. (124)Id. (125)Id. at 990. (126)New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). (127)Bourland, 949 F.2d at 990 (citing Mescalero, 462 U.S. at (330-31). The Eighth Circuit noted that in Mescalero the Supreme Court would not even allow concurrent state jurisdiction on the non-lndian land on reservation. Id. (128)See supra text accompanying note 41. (129)Bourland, 113 S. Ct. at 2316 (quoting County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 112 S. Ct. 683, 693 (1992)) ("[Sltatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit."). 130 Montana, 450 U.S. at 564. This broad statement was limited by two exceptions. See supra part lII. (131)Bourland, 113 S. Ct. at 2322 n.2 (Blackmun, J., dissenting). (132)See Montana, 450 U.S. at 558-59. (133)Bourland, 113 S. Ct. at 2316. The Court's use of the term "granted" rather than "reserved" portrays a disposition inconsistent with traditional principles of Indian law, as articulated in the following statement from a turn of the century Supreme Court decision: "[T]he treaty was not a grant of rights to the Indians, but a grant of rights from them--a reservation of those not granted." United States v. Winans, 198 U.S. 371, 381 (1905). The Court has quoted this statement as recently as 1979, in Washington v. Washington State Commercial Passenger Fishing Vessel Ass,n, 443 U.S. 658, 680 (1979). (134)Bourland, 113 S. Ct. at 2316. (135)Id. at 2317. (136)Id. at 2321 (Blackmun, J., dissenting). (137)Id. at 2320 n.l5 (quoting Montana, 450 U.S. at 564). (138)The Court left the application of the Montana exceptions to the District Court on remand. The consensual relationship exception is not relevant to this case. On remand, the District Court made a factual finding that the second Montana exception--a direct effect on the political integrity, the economic security, or the health and welfare of the Tribe--was not met. The Eighth Circuit affirmed. South Dakota v. Bourland, 39 F.3d 868, 870 (11th Cir. 1994). (139)Bourland, 113 S. Ct. at 2316. (140)Id. (141)Id. at 2317 (quoting 2, 68 Stat. 1191). (142)Id. at 2318. (143)Id. (144)Quoting Montana, the Court emphasized, "what is relevant . . . [sic] is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land." Id. (quoting Montana, 450 U.S. at 560 n.9). The Court's quotation in Bourland eliminated the limiting phrase "in this case" from the original and did not address the fact that "that policy" referred specifically to the Allotment Act. For these reasons, the dissent differed with the majority's interpretation of this statement. In Montana, the quotation directly followed a statement acknowledging that the Indian Reorganization Act repudiated the policy of the Allotment Act. Thus, the dissent characterized it as specifying which congressional purpose (i.e., that behind the Allotment Act or that behind the Indian Reorganization Act) was relevant. Id. at 2323. (145)Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). (146)The United States Government has a unique legal relationship with Native American tribal governments as set forth in the Constitution of the United States, treaties, statutes, and court decisions. As executive departments and agencies undertake activities affecting Native American tribal rights or trust resources, such activities should be implemented in a knowledgeable, sensitive manner respectful of tribal sovereignty. Memorandum of April 29, 1994: Government-to-Government Relations with Native American Tribal Governments, 59 Fed. Reg. 22,951, 22,951 (1994).

"[W]e are working hard to strengthen a relationship based on mutual trust and cooperation--one

in which the tribes of the Nation stand shoulder to shoulder with the other govermnental

units that form our Republic ...." Proclamation No. 6450, 57 Fed. Reg. 28,579,

28,579 (1992); "[W]e gratefully salute all American Indians, expressing our support for tribal

self-determination and assisting with efforts to celebrate and preserve each tribe's unique

cultural heritage." Proclamation No. 6407, 57 Fed. Reg. 7873, 7873 (1992); "We will continue

to seek . . . the further advancement of tribal self-government." Proclamation No. 6368, 57 Fed. Reg. 56,145, 56,145 (1991); "The underlying principles of this mission [to improve reservation economies] are the government-to-government relationship, the established Federal policy of self determination and the Federal trust responsibility." Exec. Order No. 12,401, 48 Fed. Reg. 2309, 2309 (1983). (147)The Court required "[1] clear evidence [2] that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and [3] chose to resolve that conflict by abrogating the treaty." Dion, 476 U.S. at 740. (148)In Dion, the Court walked the facts through the test and found that there was clear evidence that Congress intended the Eagle Protection Act to abrogate treaty rights to hunt eagles. The text of the Eagle Protection Act and its legislative history showed that Congress recognized that the Act would affect treaty rights, realized that without an exemption provision the act would cause hardship, and resolved the conflict between the statute and treaty rights by creating a permit program instead of a wholesale exemption for Indians. Id . at 740, 743. (149)Bourland, 113 S. Ct. at 2319. (150)See Id. at 2317-18. (151)See supra note 101. (152)The dissent notes that tribal regulation of hunting and fishing is consistent with the public access mandated by the Flood Control Act. Bourland, 113 S. Ct. at 2324 n.3 (Blackmun, J., dissenting). (153)See supra notes 58-59 and accompanying text for Montana exceptions. (154)In Montana, the three dissenters, Justices Blackmun, Brennan and Marshall, used a more traditional approach than the majority. Likewise in Brendale, the same three members of the Court used a more traditional analysis than the other six. In Bourland, the number of justices using a traditional approach declined to two, Blackmun and Souter. (155)The Clean Air Act and the Clean Water Act are examples of recent congressional delegation of power to tribes. The Clean Air Act has two sections that deal specifically with tribes and reservations. Clean Air Act, 42 U.S.C. [sub-sections] 7474(c) & (e), 7601(d) (1988 & Supp. V 1993). The Clean Water Act allows for tribes to be treated as states for several purposes. Clean Water Act, 33 U.S.C. [sub-sections] 1377 (1988). See also GETCHES ET AL., supra note 5, at 732-36 (discussing environmental legislation giving power to tribes). (156)[sections]4, 58 Stat. 887, 890. (157)[sections]10, 68 Stat. 1191, 1193. (158)[sections]4, 58 Stat. 887, 890. (159)Rules and Regulations Governing Public Use of Water Resource Development Projects Administered by the Chief of Engineers, 36 C.F.R. [sections] 327.8 (1993). (160)See Bourland, 113 S. Ct. at 2324 (Blackmun, J., dissenting). (161)Id. at 2320. (162)36 C.F.R. 327.8 (1993). The regulations also allow for state and local laws and ordinances to apply generally to the project lands and waters. See 36 C.F.R. 327.26 (1993). (163)Bourland, 113 S. Ct. at 2320. (164)Id. at 2324 (Blachmun, J., dissenting). (165)Id. (166) See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 84345 (1984) (requiring courts to defer to an agency's interpretation of an ambiguous statute); Martin v. Occupational Safety and Health Review Comm,n, 499 U.S. 144, 150 (1991) (requiring courts to defer to an agency's interpretation of its own regulations). (167) Bourland, 113 S. Ct. at 2321. (168) Id. at 2320-21. (169) Id. at 2318 n.13. (170) Id. at 2321 n.16. "The primary responsibility for determining zoning and land use matters rests with state, local and tribal governments." General Regulatory Policies, 33 C.F.R. 320.4(j)(2) (1993). This regulation outlines policies for evaluating water use permit applications. (171) Bourland, 113 S. Ct. at 2321 n.16. The regulation governing hunting and fishing refers to state and local 36 C.F.R. 327.8 (1993). The regulation governing zoning and land use refers to state, local, and tribal governmenls. 33 C.F.R. 320.4Cj)(2) (1993). Perhaps there is some argument to be made that the difference between laws and governments is significant enough that the presence of "tribal governments" in one regulation should not be taken as proof that the absence of "tribal laws" in another means that local laws do not include tribal laws. In addition, the fact that the two contrasted regulations were in different parts of the C.F.R. may make the use of one to qualify the other invalid. (172) Chevron, U.S.A v. Natural Resources Defense Council, 467 U.S. 837, 84345 (1984). (173) Id. (174) The majority stated that the federal government's position was "inconsistent with evidence . . . that the Corps in fact believed that jurisdiction over non-lndian hunting and fishing on water project lands [was] a matter of state law." Bourlard, 113 S. Ct. at 2320-21. The Court did not specify which evidence it was referring to or how that evidence related to the fact that the state and tribe had been exercising concurrent jurisdiction. Nevertheless, the rnajority found the government's argument undeveloped. Id. at 2321. (175) Seminole Nation v. United States, 316 U.S. 286, 297 (1941). (176) See supra notes 22-25 and accompanying text. (177) Chambers, supra note 22, at 1246. (178) See, e.g., Morton v. Ruiz, 415 U.S. 199 (1974) (Bureau of Indian Affairs, denial of benefits from a federal general assistance program inconsistent with the trust obligation); United States v. Mitchell, 463 U.S. 206 (1983) (mismanagement of tribal timber resources by BIA found to be a violation of the trust responsibility because the federal statutes and regulations gave the federal government the full responsibility to manage the resource for the benefit of the tribe); see also Chambers, supra note 22, at 1213 (arguing that the case law on this issue reveals Congress intends executive officials to act in accordance with the trust responsibility unless Congress makes an explicit expression to the contrary). See generally Getches, supra note 5, at 369 (examples of conflicts between Indian interests and federal agencies). For problems in agencies, execution of the trust duty, see Subcom. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 91ST Cong., 2d Sess., Discharge of the Federal Trust Responsibility to Enforce Claims of Indian Tribes: Case Studies of Bureaucratic Conflict of Interest (Comm. Print 1971) (Reid P. Chambers). (179) The Supreme Court has upheld Congressional power to delegate regulatory authority directly to tribes. United States v. Mazurie, 419 U.S. 554, 536-57 (1975) (upholding congressional delegation of regulatory authority to tribe to regulate liquor on tribal and fee lands onreservation). (180) Mitchell, 463 U.S. at 206; see also Newton, supra note 22, at 635; Richard W. Hughes, Can the ,Trustee Be Sued for Its Breach? The Sad Saga of United States v. Mitchell, 26 S.D. L. Rev. 447 (1981). (181) Newton also argues that a narTow conception of the federal trust obligation could be good for the tribes. The very concept of the federal trust is patronizing: without it tribes may become increasingly self-reliant and sophisticated in managing their own resources. Newton, supra note 22, at 635. (182) See Brockman, supra note 53, at 151; Getches et al., supra note 5, at 730-36; Walter E. Stern, Environmental Regulation on Indian Lands: A Business Perspective, 7 Nat. Resources & Env't, Spring 1993, at 20. (183) Washington Dep,t of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985); see also Richard DuBey et al., Protection of the Reservation Environment: Hazardous Waste Management on Indian Land, 18 Envtl. L. 449 (1988). See generally Leslie Allen, Who Should Control Hazardous Waste on Native American Lands? Looking Beyond Washington Department of Ecology v. EPA, 14 Ecology L.Q. 69 (1987); Catherine E. Pope, Environmental Law--Federal Indian Law--Recent Developments--State of Washington, Department of Ecology v. United States Environmental Protection Agency, 27 Nat. Resources J. 739 (1987). (184) Washington Dep,t of Ecology, 752 F.2d at 1472. (185) See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). (186) Washington Dep,t of Ecology, 752 F.2d at 1470 (citation omitted). (187) Federal, Tribal and State Roles in the Protection and Regulation of Reservation Environments. 56 Fed. Reg. 64,876 (July 10, 1991). (188) One commentator has argued that combining the trust relationship with environmental statutes that require federal agencies to examine and protect cultural values can broaden the trust and thereby enhance tribal sovereignty. See Fine, supra note 22, at 117. 189 56 Fed. Reg. at 64,892. The EPA goes on to say that it believes that the trust responsibility will not prevent the EPA from being impartial in the dispute resolution process. Id. (190) 31 U.S. (6 Pet.) 515 (1832). (191) Id. at 593-94 (McLean, J., concurring). (192) But McLean did note that as long as treaties exist unabrogated, they must be respected. Id. at 583. (193) See Marshall Trilogy, supra note 17. (194) For another discussion of the Bourland decision, see Chad W. Swenson, Note, South Dakota v. Bourland: Drowning Cheyenne River Sioux ,rribal Sovereignty in a Flood of Broken Promises, 39 S.D. L. REV. 181 (1994). For other law review articles that contain brief discussions of the Bourland decision, see 1993 Federal Recent Developments United States Supreme Court, 18 AM. INDIAN L. REV. 539 (1993); Timothy W. Joranko & Mark C. Van Norman, Indian Self-Determination at Bay: Secretarial Authority to Disapprove 7ribal Constitutional Amendments, 29 GONZ. L. REV. 81 (1993/1994); Dean B. Suagee & Christopher T. Steams, Indigenous Self-Government, Environmental Protection, and the Consent of the Governed: A Tribal Environmental Review Process, 5 COLO. J. INT,L ENVTL. L. & POL,Y 59 (1994); ThOmas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351 (1994); AlliSon M. Dussias, Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty: The Supreme Court's Changing Vision, 55 U. PITT. L. REV. 1 (1993); Stephanie W21d, The Use of Legislative History in Statutory Interpretation Cases in the 1992 U.S. Supreme Court Term; Scalia Pails but Legislative History Remains on Trock, 23 SW. U. L. REV. 47 (1993); PhiliP P. Frickey, MarshaUing Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381 (1993). (195) See supra note 146.

Janis Searles (*) J.D. expected 1995, Northwestern School of Law of Lewis and Clark College; B.A. 1991, Reed College. I wish to thank Professor Michael Blumm for his suggestions and comments.
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Date:Jan 1, 1995
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