DEVELOPING ENVIRONMENTAL LAW IN INDIAN COUNTRY

September 30, 2013 Comments Off on DEVELOPING ENVIRONMENTAL LAW IN INDIAN COUNTRY

Professor Elizabeth Ann Kronk Warner recently posted a working paper, entitled Examining Tribal Environmental Law, that reviews the existing tribal laws governing environmental protection and provides some initial thoughts on further development of tribal environmental law.[1] In this article, Professor Kronk (Director of the Tribal Law and Government Center at the University of Kansas School of Law) surveyed the publicly available tribal laws and found that just over one-half of all federally recognized Indian tribes have enacted an environmental law in at least one of four categories (air, water, solid waste, and environmental quality). She also found that only the Navajo Nation has enacted tribal environmental laws in all four categories.

After discussing the legal and jurisdictional context for tribal environmental law, and the results of her survey of existing tribal codes, Professor Kronk provides three initial thoughts on the development of tribal environmental laws. First, she suggests that, because some tribes may not be ready to enact fully developed environmental laws (due to financial considerations, small land bases, limited natural resources, or other tribal priorities), tribes may want to consider codifying their environmental ethic without implementing a full environmental code. At a minimum, codifying an environmental ethic will provide an important interim statement and emphasize the tribe’s intrinsic connection with the land, water, plants, and animals on tribal land and elsewhere.

Second, tribes may want to craft tribal environmental laws that will apply to non-Indians and non-member Indians who are acting on non-Indian lands within tribal land. Professor Kronk bases this suggestion directly on the Montana rule,[2] which holds that Indian tribes do not have jurisdiction to regulate the activities of non-members who act on non-Indian land within a reservation’s boundary. Notably, however, the Montana rule has two exceptions that will permit the tribe to regulate non-members acting on non-Indian fee land if: (1) the non-member has significant commercial dealings with the tribe or tribal members; or (2) the non-member’s activities threaten the political, economic, or welfare interests of the tribe. Professor Kronk contends that a tribe can obtain jurisdiction over the non-member by enacting tribal environmental laws requiring that permits for the discharge of pollution affecting tribal land be issued only if the non-member agrees to tribal jurisdiction (under the first exception to the Montana rule). Further, she suggests that tribes can invoke the second exception by drafting tribal environmental laws designed to protect the health and welfare interests of the tribal community.

Third, Professor Kronk suggests that tribes may want to consider tribal customs and spirituality when developing tribal environmental laws. In so doing, each tribe’s environmental laws will reflect the environmental ethic of that tribe. Federal environmental laws do not regulate to protect cultural and religious interests, and thus, federal law does not preempt or prevent Indian tribes from exercising their sovereignty and regulating for such purposes. Thus, a tribe could enact an environmental law to protect a cultural or sacred site that is within the boundaries of its reservation.

Finally, Professor Kronk contends that, although many reasons exist for tribes to adopt environmental laws, tribe may want to consider adopting environmental laws for two main reasons. First, tribal environmental laws will promote both tribal sovereignty and tribal environmental ethics. Second, tribal environmental laws are necessary because of current environmental issues and the development of natural resources.

The research of Professor Kronk and others on tribal environmental law seems particularly relevant today as tribes seek to develop natural resources and green energy as well as protect tribal environmental, cultural, and religious interests. A copy of this paper can be downloaded from the Social Science Research Network.

We hope that this summary has been informative and helpful. For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

Endnotes

[1] Elizabeth Ann Kronk Warner, Examining Tribal Environmental Law (Sep. 7, 2013) (unpublished working paper), available at http://ssrn.com/abstract=2322322.

[2] Montana v. United States, 450 U.S. 544, 564-66 (1981).

JURIES, VENUE, AND THE MAJOR CRIMES ACT: RECENT SCHOLARSHIP

September 22, 2013 Comments Off on JURIES, VENUE, AND THE MAJOR CRIMES ACT: RECENT SCHOLARSHIP

A recent comment published in the Wyoming Law Review argues that federal law on jury pools and venue, when applied to Indian country criminal cases, is not consistent with Major Crimes Act. The Major Crimes Act gives the federal courts jurisdiction over most felonies occurring on reservation land and was upheld in United States v. Kagama, 118 U.S. 735 (1886). The Major Crimes Act is unique because it creates jurisdictional limitations based on geography (within Indian country) and racial-political identity (Indian v. non-Indian).

First, the author shows that the location—or vicinage—of a criminal case is so important in United States jurisprudence that the Founding Fathers included it in the Constitution. Under Article III and the Sixth Amendment, criminal cases must be tried in the “district wherein the crime shall have been committed.” In addition, the Federal Rules of Criminal Procedure call for criminal cases to be heard in a location that is convenient for the defendant, victims, witnesses, and the “prompt administration of justice.” The purpose of these rules is to promote public participation and scrutiny of the prosecutor and the legal process. The author then argues that, in light of the unique jurisdictional limitations of the Major Crimes Act, the victim of the crime should be seen as the reservation and the surrounding community and that the federal prosecutor is representing this specific community of Indians and local non-Indians.

Second, the author reviews the federal jury selection process. This process is designed to select a jury from a representative cross-section of the district or division where the court is situated (usually a state or a large portion of a state). The author then argues that the federal jury selection process is inconsistent with the Major Crimes Act because most crimes prosecuted under the Act occur in areas of a district or division that are more densely populated by Indians—raising a possible fairness issue under the Sixth Amendment. By contrast, in state-level cases, the venire (the pool from which the jury is selected) is drawn from citizens within each county. Since offenses under the Major Crimes Act would otherwise be prosecuted under state law, the author suggests this state-level contrast further supports an inconsistency between the federal jury selection process and the Major Crimes Act.

The author concludes by suggesting a number of changes intended to overcome these inconsistencies. One suggestion is that federal district courts hearing cases under the Major Crimes Act hold court in locations closer to the specific community affected by the crime. Under the Tribal Law and Order Act of 2010, federal prosecutors and courts are required to at least attempt to conduct trials and other proceedings in Indian country. Another suggestion is to improve the process of identifying jury venires in Major Crimes Act cases so that the venire is a more representative cross-section of the affected community. Possible solutions include identifying jury pools from federal income tax filings, tribal voter registration rolls, tribal membership rolls, or other public records related to Indian country.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

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