One of the fundamental questions in federal law is the exact parameters of Indigenous property rights. From the first Supreme Court decisions in Indian affairs (such as Johnson v. McIntosh and Lone Wolf v. Hitchcock)Indigenous property has been treated in a of his kind manner that is often to the detriment of Indigenous Peoples. Bryan Newland, assistant secretary for Indian Affairs in the Biden administration, recently delivered a major address in which he explained that the legacy of cases decided in the “atmosphere” of colonization remain impactful in 21st century litigation.
Before the court is a petition to review the U.S. Court of Appeals for the 8th Circuit’s decision in Chase v. Andeavor Logistics LP (now captioned Aubol v. Andeavor Logistics LP), a trespass action by tribal citizen allotment owners against a pipeline company. Allotments are land parcels carved out of Indian reservations in the late 19th and early 20th centuries. The federal right-of-way allowing a pipeline in these Indigenous lands expired in 2013. The Mandan, Hidatsa, and Arikara Nation has agreed to extend the right-of-way for its lands, but individual tribal citizens have not consented to the extension on their lands.
Though the pipeline company is seemingly liable for trespass, the circuit court remanded the issue to the Bureau of Indian Affairs to address the issue in the first instance, pointing to federal regulations that govern the expiration of Indian country rights-of-way. The cert petition argues that the 8th Circuit’s decision conflicts with the Supreme Court’s decision in Oneida County v. Oneida Indian Nationwhich held that there is a federal common law cause of action allowing Indigenous property owners to bring trespass actions in federal court.
The Andeavor case has been accompanied in recent years by a slate of lower court decisions similarly diminishing Indigenous property rights. In Davilla v. Enable Midstream Partnersthe U.S. Court of Appeals for the 10th Circuit held that a pipeline trespasser on Indigenous property would not be ordered to remove the pipeline until the federal district court decided it was, among other things, in the “public interest” to do so. Under federal law, federal courts may not order injunctive relief unless such relief is in the public interest. The 10th Circuit’s decision imposed a public interest standard on Indigenous property when, arguably, it would not have done so in relation to private property.
Similarly, a judge on the U.S. District Court for the Western District of Wisconsin held in Bad River Band of Lake Superior Ojibwe Indians v. Enbridge Inc. that the tribe was not entitled to the immediate removal of a trespassing pipeline because the public interest favored its continued operation. Fortunately, the U.S. Court of Appeals for the 7th Circuit reversed that decision. Other federal courts have also ordered immediate eviction of trespassers to Indigenous lands (e.g., United States v. Osage Wind), but the judiciary tends to invoke the public interest when favoring pipeline or other petroleum industry companies.
Newland argues that some judges may be channeling a long tradition where the federal government assumed that Indigenous property is public property: Most pipelines running through Indigenous lands now originated in an earlier era where the federal government assumed a kind of guardianship over tribal nations, where the Interior Department granted easements and rights-of-way over Indigenous lands without tribal consent. For example, the Supreme Court once held that the secretary of the Interior was empowered to issue leases to natural resources extraction companies even over tribal opposition (Cherokee Nation v. Hitchcock).
The tradition of guardianship arose in early Supreme Court decisions comparing the federal-tribal relationship to a “guardian-ward” relationship (Cherokee Nation v. Georgia). Congress did not enact laws generally asserting actual guardianship over tribal nations; instead, the relationship was more accurately characterized as a trust relationship, with federal government owning and managing tribal and individual Indian asserts in trust.
A trust beneficiary has legal rights that a ward does not. A ward does not possess the legal capacity to make their own decisions, while tribal nations and tribal citizens do. When federal or state actors did assert guardianship over Indigenous assets, tragedy often followed, as evidenced in the early 20th century killings of Osage people fictionalized in the film “Killers of the Flower Moon” or in the flooding of several Indian reservations in the mid-20th century by federal hydroelectric dam projects.
Often, when tribal nations attempted to assert their own legal rights, the judiciary allowed the federal government to block those efforts. Justice Neil Gorsuch recently raised this issue in his dissent in Arizona v. Navajo Nationwhere he pointed out that, decades ago, the federal government blocked the Navajo Nation from asserting their water rights, which remain unsettled to this day. In those older cases, the fact that the federal government could stand in the shoes of Indigenous interests suggested that Indigenous property was therefore, in effect, public property.
The Department of Justice’s litigation positions also frequently hearken back to expansive federal controls over Indigenous property. While the Supreme Court has explicitly overturned the earlier cases analogizing the federal-tribal relationship as a guardianship in cases such as United States v. Sioux NationDOJ attorneys are known to continue to assert guardianship-type control over Indigenous property. Indeed, federal judges have sanctioned them for making such claims post-Sioux Nation.
This legacy of guardianship once again has raised its head. D.C. Circuit briefing has concluded in a claim brought by the Tohono O’Odham Nation against the Department of Homeland Security regarding the administration’s plan to build a border wall on the tribe’s land. The tribe argues that the federal common law cause of action recognized in Oneida undergirds the suit. In response, the DOJ now asserts that tribal nations may not sue the United States for trespass on hands held in trust by the federal government for the benefit of a tribal nation. This claim rings again of guardianship, where a ward normally does not have the legal capacity to sue their guardian.
The import of the government’s claim in the border wall case, like the trespass action in Andeavorhas enormous consequences for Indian country: If the government can confiscate Indigenous property held in trust by the United States, then the judiciary will have allowed the federal government to reassume a guardianship-type relationship regardless of tribal consent or the federal government’s trust duties.
Source: www.scotusblog.com
