The bison’s massive front- and hindquarters rested on a blue tarp to protect them from dirt and other contaminants. Gut piles left by other hunters, frosted with March snow, dotted the hillsides around Falcon. As she field-dressed the animal, tourists headed to the park passed by less than half a mile away. “We’re using our space that we have always used,” Falcon said. “We’re just using it again now with an audience.”

Falcon’s harvest is a revitalization of Indigenous knowledge and culture. But the hunt is also a public lightning rod — part of an ongoing controversy over managing an iconic species that tribal nations, the federal government and the state of Montana all have deep and different interests in.

“We’re using our space that we have always used. We’re just using it again now with an audience.”

AT LEAST 27 TRIBES have historic ties to the Yellowstone region. In the late 19th century, the United States government forced them out as part of a nationwide effort to exterminate and assimilate Indigenous people. Treaties between tribes and the federal government in the mid-1800s established reservations across the region, but maintained hunting rights in places deemed “unoccupied.”

At the same time, bison, which once numbered between 30 and 60 million in North America, were deliberately slaughtered en masse, part of the campaign to clear the land of Indigenous people: “Every buffalo dead is an Indian gone,” U.S. Army Col. Richard Dodge reportedly said in 1867. By the early 1900s, fewer than two dozen wild bison remained, deep in Yellowstone National Park.

Thanks to federal conservation efforts, bison rebounded in Yellowstone — and tribes began to reclaim their rights to harvest them. In the mid-2000s, the Nez Perce Tribe wrote to Montana’s governor, claiming their right to hunt bison on Forest Service land adjacent to the park. The state acknowledged the tribe’s sovereignty. “Today, after years without meaningful access to bison, the Nimiipuu are reconnecting with bison in the Greater Yellowstone Area, re-asserting our sacred relationship with the bison, and exercising our treaty-reserved right to hunt bison that was secured by our ancestors and promised by the United States,” the tribe said in an emailed statement. Over time, more tribes followed; last winter, eight tribal nations hunted bison outside Yellowstone, some from as far away as Washington and Oregon.

Tribal hunters entered a contentious landscape. For decades, the state of Montana, federal agencies and conservation groups have gone back and forth through lawsuits, legislation and protests over how many Yellowstone bison there should be, and where. Bison and elk in the region harbor the country’s last reservoir of a disease called brucellosis, which can cause cattle to abort and become infertile. While there have been no confirmed cases of wild bison spreading brucellosis to domestic cattle, the state still spends more than a million dollars every year to prevent its spread. If Montana loses its brucellosis-free status, it could forfeit another $10 million or more per year. Tribes, wildlife managers and park officials developed three methods to keep the park’s bison numbers down: hunting outside Yellowstone, transfer to tribes, and capture by park officials for slaughter.

“Today, after years without meaningful access to bison, the Nimiipuu are reconnecting with bison in the Greater Yellowstone Area.” 

By 2022, Yellowstone bison numbered about 6,000 — the highest since recovery began. During particularly harsh winters, when ice and deep snow block forage, the animals migrate north, searching for food. Last year, winter came on strong and early, and buffalo appeared in locations that they likely hadn’t grazed in a century.

That meant they had to pass through Beattie Gulch and other federal land, where hunters waited. Conservation groups have long criticized the park’s bison cull, but this year’s high harvest amplified that tension. Videos circulated online showed gut piles lining the road, blood streaming down the brown dirt as the offal thawed. Billboards popped up across the state, reading: “There is no hunt. It’s slaughter!” One local organization, the Gallatin Wildlife Association, wrote to Interior Secretary Deb Haaland, urging the federal government to “renegotiate how (tribal) treaty rights should be enforced in a modern society.”

Bonnie Lynn, who lives across the road from Beattie Gulch, is a longtime hunt opponent. Monitoring the harvest from cameras placed around her property, she said she’s seen injured animals fleeing into the park, dozens of hunters in a firing line — even people unintentionally shooting toward each other and the road. She’s also concerned about ecosystem health: Lead poisoning from bullets can devastate raptors and other scavenging birds. “To watch this on a daily basis is emotionally draining,” she said.

Lynn, like many others, blames this year’s high harvest on federal and state mismanagement. In May, Jaedin Medicine Elk, a Northern Cheyenne tribal member and co-founder of the group Roam Free Nation, wrote an open letter to tribes that harvest Yellowstone bison. (The Northern Cheyenne Tribe hasn’t participated in the modern hunt.) “I don’t think the buffalo could go through another winter like this one,” he wrote. He said state and federal governments respect tribal treaty rights only when it directly benefits their agenda — in this case, serving Montana’s livestock industry. Bison need more room to roam, he wrote. When that happens, a respectful hunt can begin.

 

 

AT THEIR HOME in East Glacier on the Blackfeet Reservation, more than five hours north of Beattie Gulch, Christen Falcon and her partner, Wyett Wippert, threaded nylon rope through the edges of a bison hide and pulled it taut, like tightening shoelaces. This was the couple’s first experience tanning a hide on their own. Chatting about the harvest with friends and neighbors, they tossed scraps of fat and meat to their dogs, Binks and Noi. “Gonna have all the neighbor dogs over here,” Wippert joked. “They’re comin’!”

Falcon said there’s a running joke about Yellowstone bison hunters in her community: They aren’t real hunters, people say. The hunt is roadside, and the animals are accustomed to tourists wielding cameras, not guns. Still, she said, it’s better than the alternative the animals face: Many of them likely would be slaughtered by the park anyway.

Falcon works for a nonprofit that focuses on Indigenous-led research. The bulk of her and Wippert’s harvest will go to a study she’s leading that will analyze what happens when tribal members consume a completely traditional diet. Animal parts with special meaning, like the tongue, will go to knowledge-holders. Ultimately, she sees the Yellowstone harvest as a blessing; it helps everyone who hunts and receives meat connect to land, culture and identity. “That’s what sovereignty is — taking care of yourself,” she said. “And that’s what we’re trying to do here.”

 “That’s what sovereignty is — taking care of yourself.”

Tribal hunters HCN interviewed said their meat goes to family, community members, even schools. An average bison yields, conservatively, 500 pounds of steak and burger, meaning the winter’s harvest of Yellowstone bison equates to over a half-million pounds of lean meat going straight to tribal communities. In places like the Blackfeet Reservation — where census data shows a poverty rate of 31.1%, roughly triple Montana’s average — that can have a real impact on food security and nutrition. Christina Flammond, a tribal member and the reservation’s sole meat processor, waives her 85-cents-per-pound processing fee for hunters who donate half their meat to local food pantries. “I never dreamed of processing this many bison,” Flammond said one April afternoon at her facility, where a handful of bison quarters hung, aging.

BISON IGNORE STATE, federal and tribal land boundaries, so managing them requires getting parties with sometimes diametrically opposed interests to agree. That’s not easy. As last winter began, the state, federal government and tribes hit an impasse. Montana wanted fewer bison while tribal nations argued that more of the ungulates should graze the hills and valleys of the region. In the end, the park suggested there’s no science-based reason to reduce the population and proposed that at most a quarter of it — 1,500 animals — be removed through hunting, slaughter and transfer to tribes.

Tribes, as sovereign nations, set their own hunting dates and regulations. Reporting hunt numbers is voluntary, and no cumulative goals exist. As bison flooded through Beattie Gulch, the total removed from the Yellowstone population — hundreds of animals were transferred to tribes or slaughtered — exceeded the park’s proposed limit. “I don’t want to see multiple years of substantial population reduction like we just had,” said Yellowstone Superintendent Cam Sholly.

“Everybody’s freaking out that there’s Indians eating from buffalo. That’s not a bad thing; that’s actually a good thing.”

James Holt, a Nez Perce tribal member and executive director of the advocacy group Buffalo Field Campaign, said last winter’s hunt shows how Montana’s efforts to minimize the population have “led to every tribe for itself.” Lamenting the lack of a shared vision, he said, “It’s a tragedy of the commons that we’re seeing on the ground right now.” Still, there’s an opportunity for collaboration that centers both buffalo and tribes. He wants to see tribes work together to oversee a sustainable harvest, much the way Columbia River tribes cooperate on fish management.

“Everybody’s freaking out that there’s Indians eating from buffalo,” said Kekek Jason Stark, a member of the Turtle Mountain Band of Chippewa and professor of law at the University of Montana. “That’s not a bad thing; that’s actually a good thing.”

In “Re-Indigenizing Yellowstone,” published in the Wyoming Law Review last year, Stark and his co-authors offered what he called a “road map” to empower tribal voices in America’s first national park. Their vision encompasses more than bison: They suggested that Congress could return the park to tribal management, much as it did with the National Bison Range on the Flathead Reservation. Short of that, the park should empower tribes as partners with true decision-making authority. Since so many tribes with diverse interests have connections to the Yellowstone area, they suggested creating an intertribal commission. Once that work begins in Yellowstone, Stark said, “it’s going to catch like wildfire” on other federal lands.

Right now, only two of the eight tribes with bison-hunting rights are officially part of the conglomeration of agencies and tribal entities that manage the area’s bison, via an effort known as the Interagency Bison Management Plan, or IBMP. Four treaty tribes are also serving as partners while Yellowstone works on a new environmental impact statement to replace its nearly 25-year-old bison management plan. Last year, the park published the alternatives it’s considering, with population numbers ranging from 3,500 animals to as high as 8,000 or more. The state of Montana pushed back immediately, saying all the alternatives were too high and urging the park to withdraw those population targets.

In a June IBMP meeting — the first since last winter’s hunt — bison managers discussed how to move forward. Yellowstone Superintendent Sholly said there needs to be better landscape-level collaboration among all groups that hunt: “It can’t be a free-for-all.” Others, including the chairman of the Confederated Salish and Kootenai Tribes, agreed. But Ervin Carlson, a Blackfeet member and president of the Intertribal Buffalo Council, said all the talk of the hunt distracts from another way of managing the population: Ramping up the park’s program to transfer living, breathing bison to tribal groups across the country.

The federal government is already in the throes of a massive effort to restore the iconic animal nationwide. A $25 million Interior Department initiative aims to partner with tribes and establish “wide-ranging herds on large landscapes,” to revitalize both ecosystems and cultures. The saga in Yellowstone shows just how difficult it can be to put those ideas into practice. In fact, Montana’s Legislature passed a resolution in April opposing federal bison reintroduction on a wildlife refuge more than 200 miles north of Yellowstone, one of several recent state-led attempts to create barriers to introducing wild bison in the state.

The future of bison management requires governmental policy decisions. But it also depends on the smaller-scale, on-the-ground actions of tribal members like Christen Falcon. “We’re Indigenizing this space,” Falcon said, warming up in a car in March, overlooking the wintry hills of Yellowstone. The dead animals, the publicly visible gore — she understands how unusual it all looks. “We’re showing this Western world that not everything is as it seems.”      

Nick Mott is an award-winning journalist and podcast producer who focuses mostly on climate, public land and the environment. He’s based in Livingston, Montana.

Taylar Dawn Stagner is a writer and audio journalist who’s an editorial intern for the Indigenous Affairs desk at HCN. She’s Arapaho and Shoshone and writes about racism, rurality, and gender. 

We welcome reader letters. Email High Country News at editor@hcn.org or submit a letter to the editor. See our letters to the editor policy.

Savanna Greywind. Daisy Mae Heath. Ashlynne Mike. The reading aloud of those names and five other missing or murdered Indigenous women and girls followed by a moment of silence opened a three-day hearing of the Not Invisible Act Commission in Albuquerque on Wednesday.  The federal commission — made up of tribal leaders, law enforcement, service […]

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Lawsuits were a main point of discussion during last week’s 2023 Sovereignty Symposium, and for good reason. This month, the U.S. Supreme Court has handed down two decisions concerning tribal sovereignty and the federal government’s obligations to tribal nations. Although last week saw the U.S. Supreme Court rule in favor of tribes and uphold the […]

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The U.S. Supreme Court said the United States is not required “to take affirmative steps to secure water for the Tribe” because that provision is not explicitly stated in the Navajo Treaty of 1868, according to its ruling in a 5-4 vote in Arizona v. Navajo Nation, released Thursday.

The case was the third and final federal Indian law case this term.

Thursday’s decision reverses a ruling by the U.S. Court of Appeals for the 9th Circuit. The tribe cannot proceed with a claim against the Department of the Interior to “develop a plan to meet the Navajo Nation’s water needs and manage the main stream of the Colorado River in the Lower Basin.”

The court also ruled that the tribe cannot present a cognizable claim of breach of trust.

Justice Brett Kavanaugh wrote the opinion and was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett.

“And it is not the Judiciary’s role to rewrite and update this 155-year-old treaty,” Kavanaugh wrote. “Rather, Congress and the President may enact—and often have enacted—laws to assist the citizens of the western United States, including the Navajos, with their water needs.

Kavanaugh went on to write that the United States has no similar duty with respect to land on the reservation and it would be “anomalous to conclude that the United States must take affirmative steps to secure water.”

“For example, under the treaty, the United States has no duty to farm the land, mine the minerals, or harvest the timber on the reservation—or, for that matter, to build roads and bridges on the reservation,” Kavanaugh writes. “Just as there is no such duty with respect to the land, there likewise is no such duty with respect to the water.”

The Navajo Nation argued that securing water rights to the Colorado River for the tribe fell under the federal government’s trust obligations that were being unfulfilled.

Critics immediately reacted to the decision saying it is a virtual theft of water from the Navajo Nation.

Navajo Nation President Buu Nygren and Speaker of the 25th Navajo Nation Council Crystalyne Curley shared their disappointment in the decision in a joint press release.

As president, Nygren said it is his job to protect the people, land and future and that he remains “undeterred in obtaining quantified water rights for the Navajo Nation in Arizona.”

“The only way to do that is with secure, quantified water rights to the Lower Basin of the Colorado River,” Nygren said in the statement. “I am confident that we will be able to achieve a settlement promptly and ensure the health and safety of my people.”

“Today’s ruling will not deter the Navajo Nation from securing the water that our ancestors sacrificed and fought for — our right to life and the livelihood of future generations,” Curley added.

As he has done in the past, Justice Neil Gorsuch laid out the history of the tribe and the surrounding circumstances that led to this point in his dissenting opinion. He writes that it is known that the United States holds some of the tribe’s water rights in trust and the government owes the Navajo Nation “a duty to manage the water it holds for the Tribe in a legally responsible manner.”

In his concluding paragraphs, Gorsuch writes that the tribe has tried nearly everything and poses the question, “Where do the Navajo go from here?”

“The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another. To this day, the United States has never denied that the Navajo may have water rights in the mainstream of the Colorado River (and perhaps elsewhere) that it holds in trust for the Tribe,” Gorsuch writes. “Instead, the government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.”

Derrick Beetso, Navajo, is an attorney and director of Indian Gaming and Self-Governance at Arizona State University Sandra Day O’Connor College of Law. He also is a board member of IndiJ Public Media, the non-profit that owns ICT.

He said the opinion acknowledges that the tribe does have water rights, although they are unquantified.

“The tribe itself is pretty much in the same position they were in before this litigation and in some respects has to go back to the drawing board to figure out how they can get the administration to move forward on assessing their water needs,” Beetso told ICT.

He added that the Supreme Court is just one branch of the government and the Navajo Nation may switch focus to the Biden Administration and Congress in the future.

“The administration can do all the things that the tribe’s asking them to do without a court telling them to do it,” he said. “And so I think the Navajo Nation can shift gears and put a lot of pressure on the Biden administration and see what can get done under this administration.”

Native American Rights Fund executive director John Echohawk, Pawnee, said in a joining statement with the National Congress of American Indians that the decision condones a lack of accountability by the U.S. government.

“Despite today’s ruling, Tribal Nations will continue to assert their water rights and NARF remains committed to that fight,” Echohawk said.

Fawn Sharp, Quinault, called the decision a setback but added tribes and Native organizations will continue to fight for and defend tribal sovereignty and the preservation of Indigenous ways of life.

“Water is necessary for all life, and when our ancestors negotiated agreements with the United States to secure our lands and our protection, water was understood and still is understood to be inseparable from the land and from our peoples,” Sharp said in the statement. “Today, the Supreme Court has once again assisted in the United States’ centuries-long attempts to try to get out of the promises they have made to Tribal Nations by stating that treaties only secure access to water, but do not require the United States to take any steps to protect or provide that water to our people.”

The court ruled in mid-June on the other two federal Indian law cases. The high court affirmed the Indian Child Welfare Act in a major win that was celebrated across Indian Country. The same day the ICWA opinion was released, the court also ruled on Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.

In that ruling, the court stated that tribes cannot use sovereign immunity in Bankruptcy Court.

The court still has a number of cases to rule on before taking a summer break. The justices will return for the next term starting in October.

The opinion on Arizona v. Navajo Nation can be read here.

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You might see Elizabeth Johnson’s semi-tractor trailer traveling the U.S. interstate highways, especially between Colorado and Nebraska.

And if you do see it, there’s no way you can miss Johnson’s message.  The entire trailer carries the simple direct message: “Invisible No More.”

It’s a message meant to bring attention to the plight of missing and murdered Indigenous women whose cases are unsolved.

Johnson — a member of the Ho-Chunk Tribal Nation of Nebraska — has been spreading the message since 2017.

“My message as a woman is, if any woman sees this semi-truck and needs help, me and my dog Delilah will help you to safety,” Johnson said. “Knock on my semi-truck door.”

There are an estimated 506 cases of missing or murdered indigenous women across the country. And that’s likely an undercount due to bad data, according to the Urban Indian Health Institute. Of that number, 128 of the women are considered missing, while 280 were known murdered. Another 98 are cases of unknown status, according to the Urban Indian Health Institute.

The group surveyed 71 police stations and one state agency and found 5,712 missing and murdered Indigenous cases were reported in 2016. But of those, only 116 were logged in a Justice Department database.

According to the National Institute of Justice, as of May 2023, 84.3% more than 1.5 million American Indian and Alaskan Native women experience violence in their lifetime. Victimization of American Indian and Native woman is 1.2 times higher than white women.

Johnson and her family moved to Winnebago in Nebraska when she was five, and she was raised as a tribal member of the Nebraska Ho-Chunk tribe and given the name Rainbow Woman.

She left home when she was in her preteens and has kept moving.

“I don’t know if God would bless me to go further in my trucking industry or this is the end of my travels, but when I see family, I want to make an apple pie,” Johnson said.

Nebraska is always her home, she said, but so is Colorado because her son and grandchildren live in Brighton. She spends half her time with them.

Johnson started her mission because she was a victim of abuse herself. It was a two-way abusive situation, she said:  He was abusive to her, but she fought back.

“He would put me on his lap with a knife at my throat,” Johnson said. “It was a toxic relationship. I left, and I was done. As soon that door closed, God, or wherever you want to believe, started to open other doors for me.”

She had worked as a construction driver in the summer and fall. She was laid off in the winter but guaranteed to return in the summer. Even so,  she said she needed a more consistent job, and she needed reliable transportation to do that. She found a pick-up truck she liked and approached a bank looking for a loan.

“They never wanted to give me a loan, but I told them if you don’t give me a loan, I’m going to go somewhere else,” she said. “This is income that comes to your bank and comes back out. They gave me the loan, and I purchased a brand-new Silverado. When I purchased the truck, that was when I left the man. I thought I was going to die leaving him and was heartbroken, but I left.”

Johnson said she drove the Silverado for a while, and although it was nice to drive a cute truck, she was still broke.

“I went back to the bank and asked for a loan to trade off the Silverado for a used semi to make money,” she said. “I told the banker it was a win-win. I could make money at the same cost Silverado. The woman sat across from me and said, ‘I’m going do it for you’. Usually, they didn’t give business loans.”

That opened a door for Johnson, and she started her trucking company, Ho-Chunk Trucking, in 2017. After a couple of years, she was able to upgrade and buy a new semi-truck. Then, after a couple’s years of hauling other companies’ trailers, she took out another loan and purchased her own trailer in 2020.

“I wanted my own trailer because women in the industry are treated badly. It’s a whole other story,” Johnson said.

Johnson said that once she had a trailer, she started thinking about it as a platform for other Native American women.

“I went through hell and back. What is the message I wanted to say to the world?” she said.

Johnson decided to do a custom wrap on her trailer with a message about Indigenous women. She also included pictures of her family dressed in regalia and a friend dancing pow-pow and included information about 500 gone missing or murdered women.

One photo, showing a woman with a red hand over her mouth, is her niece Jalisa Horn who was left for dead from abuse and had to crawl to get help. Horn agreed to add her photo to draw attention to the message.

Gov. Jared Polis signed Senate Bill 22-150,  a law requiring official reports of missing indigenous people within eight hours. Missing children must be reported to law enforcement within two, under the law.

The act also requires the Colorado Bureau of Investigation to work on investigating missing or murdered indigenous persons and also work with federal, state, and local law enforcement to effectively investigate the cases.

In addition, an alert system and an agency called Missing and Murdered Indigenous Relatives are responsible for reporting and improving the investigation of missing and murdered Indigenous women and addressing injustice in the criminal justice system.

This story was previously published by Colorado Community Media and is being republished from AP StoryShare.

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The U.S. Supreme Court ruled Thursday morning that tribes are like any other state or government and cannot use sovereign immunity in Bankruptcy Court.

The ruling derails an argument made by the Lac du Flambeau Band of Lake Superior Chippewa Indians, which tried to extend the reach of tribal sovereign immunity in bankruptcy proceedings.

“The Code unequivocally abrogates the sovereign immunity of all governments, categorically. Tribes are indisputably governments. Therefore, unmistakably abrogates their sovereign immunity too,” Justice Ketanji Brown Jackson said in the opinion of the court.

Sovereign immunity is a legal doctrine that basically means a government cannot be sued unless it wants to.

Last year, the Supreme Court reviewed Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, which was to determine if tribal governments fall under the bankruptcy code’s definition of governments that possess the power of sovereign immunity.

“I know the other side saying, ‘Well, Mike, now tribes are aligned with all the municipalities.’ But it doesn’t say that,” said Mike Andrews, former staff director and chief council for the Senate Indian Affairs Committee. “Just as Justice (Neil) Gorsuch said they moved tribes into foreign governments and quite frankly, we’re not. We’re tribal governments and we were here before the United States. So, (it’s) a little disingenuous, to be perfectly honest.”

Andrews added this ruling is a slippery slope and could bring forward more cases to the Supreme Court that shouldn’t be decided by the courts.

“I thought that the Supreme Court stepped in as the legislature,” he said to ICT. “You often hear about justices legislating from the bench.”

Andrews was disappointed in the ruling because the Supreme Court should have sent this issue to Congress to decide.

“Let’s be clear, it’s not like the court’s going to go out and do a consultation. No, they’re not,” Andrews said.

One form or another of the Bankruptcy Act has existed since 1800. There have been five different Bankruptcy Acts passed since its first iteration. There have been over 40 amendments made to the act.

“There’s been 46, 47 amendments to the Bankruptcy Act and not one person decided, ‘Oh, we should add tribes.’ Maybe there’s a reason for that,” Andrews said. “I think that’s up to tribes through the legislative process, not the judicial process to make those determinations. Part of me feels this was a departure in that decision today. I think it was, quite frankly, an infringement on tribal sovereignty. It was watered down today.”

History of the case

After a borrower declares bankruptcy, all creditors, including governments, are not allowed to attempt any debt collection.

The Lac du Flambeau Band of Lake Superior Chippewa Indians owns a payday loan company called Lendgreen. In July 2019, the company lended $1,100 to Brian Coughlin who declared bankruptcy before the loan was repaid.

Despite bankruptcy code, Lendgreen continued to try to collect the debt. In 2019, Coughlin sued Lendgreen and the tribe in Bankruptcy Court to force them to comply with bankruptcy code. He also sued for emotional distress and attorney fees.

The tribe argued they can’t be sued because the bankruptcy code doesn’t explicitly say tribal governments. Instead stating “other foreign or domestic government.” The tribe argued it is neither a foreign or domestic government. So, the bankruptcy code should not apply in this case. Therefore, the tribe can use sovereign immunity in Bankruptcy Court.

This argument leaned on tribal governments’ unique status in the United States.

The Bankruptcy Court agreed with the tribe.

In May 2022, the case went before the First Circuit Court of Appeals, which concluded that tribes cannot use sovereign immunity in Bankruptcy Court.

This has been upheld by the Supreme Court in an 8-1 decision by the justices. The sole dissenting opinion came from Neil Gorsuch, the only justice with extensive knowledge and experience with federal Indian law.

Justice Neil Gorsuch dissents

Gorsuch essentially argued that tribal governments should not be included in the language of “other foreign or domestic government,” saying tribes should be explicitly named in laws to avoid these generalizations.

“Respectfully, I do not think the language here does the trick. The phrase “other foreign or domestic government” could mean what the Court suggests: every government, everywhere,” Gorusch wrote in his dissenting opinion. “But it could also mean what it says: every “other foreign . . . government”; every “other . . . domestic government.” And properly understood, Tribes are neither of those things.”

Gorsuch added these language interpretations should be handled by Congress not the Supreme court.

“All this explains the now-familiar clear-statement rule that this Court has endorsed on countless occasions,” he wrote. “If Congress wishes to abrogate tribal immunity, its “decision must be clear.” And the Legislature must “unequivocally express” its decision in the text of a statute.”

He asserted that tribes are neither foreign or domestic nations, so they shouldn’t fall under that definition.

“Read in context, the term ‘domestic dependent nations’ is really a term of art meant to capture Tribes’ ‘hybrid position’ between ‘foreign and domestic states,’” Gorsuch said.

Later in his opinion he added, “And their unique character makes their brand of sovereign immunity ‘not congruent’ with the immunity other sovereigns enjoy.”

Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin is two of three federal Indian law cases in Supreme Court hands. The decision for Haaland v. Brackeen, an Indian Child Welfare Act case, was also released Thursday. Arizona v. Navajo Nation is the third case to be decided. The high court has 23 more cases to decide on by the end of the month. 

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The Supreme Court handed down a major decision Thursday in the Haaland v. Brackeen case, affirming the constitutionality of the Indian Child Welfare Act by a 7-2 vote.

Justices Clarence Thomas and Samuel Alito were the lone justices to dissent.

The decision represents a major victory for federal Indian law and tribes across the nation.

The Indian Child Welfare Act was enacted in 1978 and its purpose is “”…to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture…,” the Bureau of Indian Affairs website states.

For years, tribal leaders and Native organizations have long seen ICWA as the “gold standard” for child welfare.

Oral arguments on the landmark case took place in November. Indigenous people from around the country traveled to Washington, D.C. for the hearing.

Kimberly Jump-CrazyBear, Osage and Oglala Lakota, was one of many who showed up to show support for the Indian Child Welfare Act.

“I’m just here on behalf of all of you who can’t be here today. To help lend my voice,” she told ICT before the oral arguments for Haaland v. Brackeen began. “Without our children, we don’t have a people anymore.”

Tribes, Native organizations, advocates and allies cheered for the decision reposting sentiments like “tribal sovereignty wins” or “ICWA stands!” 

This is a breaking story, check back to Buffalo’s Fire for updates.

The post Supreme Court affirms ICWA appeared first on Buffalo’s Fire.

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The Navajo Nation has for years been locked in contentious negotiations with the state of Arizona over water. With the tribe’s claims not yet settled, the water sources it can access are limited.

The hospital tried tapping an aquifer, but the water was too salty to use. If it could reach an agreement with the state, the tribe would have other options, perhaps even the nearby Little Colorado River. But instead, the Dilkon Medical Center’s grand opening has been postponed, and its doors remain closed.

For the people of the Navajo Nation, the fight for water rights has real implications. Pipelines, wells and water tanks for communities, farms and businesses are delayed or never built.

ProPublica and High Country News reviewed every water-rights settlement in the Colorado River Basin and interviewed presidents, water managers, attorneys and other officials from 20 of the 30 federally recognized basin tribes. This analysis found that Arizona, in negotiating those water settlements, is unique for the lengths it goes to in order to extract concessions that could delay tribes’ access to more reliable sources of water and limit their economic development. The federal government has rebuked Arizona’s approach, and the architects of the state’s process acknowledge it takes too long.

The Navajo Nation has negotiated with all three states where it has land — Arizona, New Mexico and Utah — and completed water settlements with two of them. “We’re partners in those states, New Mexico and Utah,” said Jason John, the director of the Navajo Nation Department of Water Resources. “But when it comes to Arizona, it seems like we have different agendas.”

The U.S. Supreme Court ruled in 1908 that tribes with reservations have a right to water, and most should have priority in times of shortage. But to quantify the amount and actually get that water, they must either go to court or negotiate with the state where their lands are located, the federal government and competing water users. If a tribe successfully completes the process, it stands to unlock large quantities of water and millions of dollars for pipelines, canals and other infrastructure to move that water.

“We’re partners in those states, New Mexico and Utah. But when it comes to Arizona, it seems like we have different agendas.”

But in the drought-stricken Colorado River Basin — which includes seven states, two countries and 30 federally recognized tribes between Wyoming and Mexico — whatever river water a tribe wins through this process comes from the state’s allocation. As a result, states use these negotiations to defend their share of a scarce resource. “The state perceives any strengthening of tribal sovereignty within the state boundaries as a threat to their own jurisdiction and governing authority,” said Torivio Fodder, manager of the University of Arizona’s Indigenous Governance Program and a citizen of Taos Pueblo.

While the process can be contentious anywhere, the large number of tribes in Arizona amplifies tensions: There are 22 federally recognized tribes in the state, and 10 of them have some yet-unsettled claims to water.

Federally recognized tribal reservations and trust land in Arizona

The state — through its water department, courts and elected officials — has repeatedly used the negotiation process to try to force tribes to accept concessions unrelated to water, including a recent attempt to make the state’s approval or renewal of casino licenses contingent on water deals. In these negotiations, which often happen in secret, tribes also must agree to a state policy that precludes them from easily expanding their reservations. And hanging over the talks, should they fail, is an even worse option: navigating the state’s court system, where tribes have been mired in some of the longest-running cases in the country.

Arizona creates “additional hurdles” to settling tribes’ water claims that don’t exist in other states, said Anne Castle, the former assistant secretary for water and science at the U.S. Department of the Interior. “The tribes haven’t been able to get to settlement in some cases because Arizona would impose conditions that they find completely unacceptable,” she said. 

Neither Gov. Doug Ducey, a Republican who left office in January after two terms, nor his successor, Democratic Gov. Katie Hobbs, responded to requests for comment on the state’s approach to water-rights negotiations. The Arizona Department of Water Resources, which represents the state in tribal water issues, declined to answer a detailed list of questions.

Shirley Wesaw, a citizen of the Navajo Nation, lives near the not-yet-open Dilkon Medical Center. She eagerly watched as it was built, anticipating a time, after it was completed in June 2022, when her elderly parents would no longer have to spend hours in the car to see their doctors off the reservation. But Wesaw is familiar with the difficulty accessing water in the area. Shared wells are becoming less reliable, she said. It’s most difficult during the summer, when some of her relatives have to wake up as early as 2 a.m. to ensure there’s still water to draw from a community well.

“When it’s low, there’s a long line there,” Wesaw said, “and sometimes it runs out before you get your turn to fill up your barrels.”

Pipe dream

One impact of Arizona’s negotiating strategy was particularly evident at the outset of the pandemic.

In May 2020, as the Navajo Nation faced the highest COVID-19 infection rate in the country, the tribe’s leaders suspected that their limited clean water supply was contributing to the virus’ spread on the reservation. They sent a plea for help to Ducey, the governor at the time.

More than a decade earlier, as the tribe was negotiating its water rights with New Mexico, Arizona officials inserted into federal legislation language blocking the tribe from bringing its New Mexico water into Arizona until it also reaches a settlement with Arizona. John, with the tribe’s water department, said the state “politically maneuvered” to force the tribe to accept its demands.

 A multibillion-dollar pipeline that the federal government is building will connect the Navajo Nation’s capital of Window Rock, Arizona, to water from the San Juan River in New Mexico. But without a settlement in Arizona, the pipe can’t legally carry the water. The restriction left the tribe waiting for new sources of water, which, during the pandemic, made it hard for people to wash their hands in communities where homes lack indoor plumbing.

“For the State of Arizona to limit the access of its citizens to drinking water is unconscionable, especially in the face of the coronavirus pandemic,” then-Navajo President Jonathan Nez and Vice President Myron Lizer wrote to the governor. Nez and Lizer included with their letter a proposed amendment that would change a single sentence in the law. They asked Ducey to help persuade Congress to pass that amendment, allowing enough water for tens of thousands of Diné residents to flow onto the reservation.

Arizona rejected the request, according to multiple former Navajo Nation officials.

The Department of Water Resources did not provide ProPublica and High Country News with public records related to the state’s denial of the Navajo Nation’s request for help getting its water to Window Rock. Hobbs’ office said it could not find the communications relating to the incident.

Land and water

Nearly half of the tribes in Arizona are deadlocked with the state over water rights.

The Pascua Yaqui Tribe has 22,000 enrolled members, but limited land and housing allow only a third to live on its 3.5-square-mile reservation on the outskirts of Tucson. A subdivision still under construction has just started to welcome some Pascua Yaqui families on to the reservation. But the new development isn’t nearly large enough to house the more than 1,000 members on a waiting list. More than 18,000 additional acres of land would be needed to accommodate the tribe’s future population, according to a 2021 study that the tribe commissioned.

But Arizona has used water negotiations with tribes to curtail the expansion of reservations in a way no other state has. 

It’s state policy that, as a condition of reaching a water settlement, tribes agree to not pursue the main method of expanding their reservations. That process, called taking land into trust, is administered by the Bureau of Indian Affairs and results in the United States taking ownership of the land for the benefit of tribes. Alternatively, tribes can get approval from Congress to take land into trust, but that process can be more fraught, requiring expensive lobbying and travel to Washington, D.C.

The policy will force the Pascua Yaqui “to choose between houses for our families and water certainty for our Tribe and our neighbors,” then-Chairman Robert Valencia wrote to the Department of Water Resources in 2020. “While we understand that our Tribe must make real compromises as part of settlement, this sort of toll for settlement that is unrelated to water is unreasonable and harmful.”

For tribes across Arizona and the region, building homes and expanding economic opportunities to allow their members to move to reservations is a top priority.

The Pueblo of Zuni was the first tribe to agree to Arizona’s land requirement when it settled its water rights with the state in 2003. The Zuni had hoped to take into trust more land they own near their most sacred sites in eastern Arizona, but that will now require an act of Congress. Since the Zuni settlement, all four tribes that have settled water rights claims with Arizona have been required to agree to the same limit on expansion, according to ProPublica and High Country News’ review of every completed settlement in the state.

In a 2020 letter, the Navajo Nation’s then-attorney general called the state’s opposition to expansion “an invasion of the Nation’s sovereign authority over its lands and so abhorrent as to render the settlement untenable.”

The Interior Department, which negotiates alongside tribes, has agreed, objecting on multiple occasions in statements to Congress to Arizona’s use of water negotiations to limit the expansion of reservations. In 2022, as the Hualapai Indian Tribe settled its rights, the department called the state’s policy “contrary to this Administration’s strong support for returning ancestral lands to Tribes.”

Tribes in Arizona often wait decades to secure water rights

Seven federally recognized tribes in Arizona have filed but not settled any of their claims to water rights. The settlement process can take decades and wind through courts and Congress.

Tom Buschatzke, director of the state’s Department of Water Resources, explained the reasoning behind Arizona’s stance to state lawmakers, noting it’s based on Arizona’s interpretation of a century-old federal law that Congress is the only legal avenue for tribes to take land into trust. “The idea of having that tribe go back to Congress is so that there’s transparency in a hearing in front of Congress so the folks in Arizona who might have concerns can get up and express those concerns and then Congress can act accordingly,” he told the Legislature, adding that the Bureau of Indian Affairs’ process, meanwhile, puts the decision in “the hands of a bureaucrat in Washington, D.C.”

The Department of Water Resources has even gone outside water-rights negotiations to challenge reservation expansion without an act of Congress. When the Yavapai-Apache Nation filed a trust land application with the Bureau of Indian Affairs in 2001, the department fought it, according to documents obtained via a public records request. The department went on to argue in an appeal that the trust land transfer would infringe on other parties’ water rights. A federal appellate board eventually ruled in favor of the tribe, but the state’s opposition contributed to a five-year delay in completing the land transition.

Pascua Yaqui Chairman Peter Yucupicio has watched non-Indigenous communities grow as he works to secure land and water for his tribe. “They put the tribes through the wringer,” he said.

Arizona’s demands

No one has defined the terms of water negotiations between Arizona and tribes more than former U.S. Sen. Jon Kyl, R-Ariz.

Before entering politics, he was a longtime attorney for the Salt River Project, a water and electric utility serving parts of metro Phoenix. During that time, he lobbied for and consulted on state rules that force tribes to litigate water disputes in state court if they’re unable to reach a settlement. After landing in the Senate, Kyl and his office oversaw meetings where parties hashed out disputes, and he saw his role as that of a mediator. He helped negotiate or pass legislation for the water rights of at least seven tribes.

“I wasn’t taking a side,” Kyl told ProPublica and High Country News, “but I was interested in seeing if they could all reach agreements.”

Tribes, though, often didn’t see him as a neutral party, pointing especially to his handling of negotiations for the Navajo Nation and the Hopi Tribe. He was shepherding a proposed settlement for the tribes through Congress in 2010 when he withdrew support, saying the price of the infrastructure called for in the proposal was too high to get the needed votes. A 2012 version of the tribes’ settlement also died after he added an extension to allow a controversial coal mine to continue operating.

Even when Kyl wasn’t directly involved, tribes were pushed to accept concessions, including limits on how they used their water. Settlements across the basin, including in Arizona, typically contain limits on how much water tribes can market, leaving unused water flowing downstream to the next person in line to use for free.

Even when Kyl wasn’t directly involved, tribes were pushed to accept concessions, including limits on how they used their water.

And several tribes in Arizona were asked to give up the ability to raise legal objections if other users’ groundwater pumping depleted water underneath their reservation.

Tribes have also often had to trade the priority of their water — the order in which supply is cut in times of shortage, such as the current megadrought — to access water. The Bureau of Reclamation recently proposed drastic cuts to Colorado River usage, and, in one scenario based on priority, a quarter of the proposed cuts to allocations would come from tribes in Arizona.

“Some of the Native American folks had a hard time with the concept that they had to give up rights in order to get rights,” Kyl said, adding that tribes risked getting nothing if they kept holding out. “If you’re going to resolve a dispute, sometimes you have to compromise.”

Given the long list of terms Arizona typically pursues, some tribes have been hesitant to settle — which can leave them with an uncertain water supply — so the state has tried to push them.

In 2020, Arizona legislators targeted the casino industry — the economic lifeblood of many tribes. Seven Republicans, including the speaker of the House and Senate president, introduced a bill to bar tribes from obtaining or renewing gaming licenses if they had unresolved water-rights litigation with the state. The bill failed, but Rusty Bowers, the House speaker at the time, said the legislation was intended to put the state on a level playing field with tribes. “Where is our leverage on anything?” Bowers said. If tribes weren’t using the water, then others would do so amid a drought in the growing state, he said.

The state’s economic and population growth has presented tribes with other challenges: They must now negotiate not only with the state and federal governments but also with the businesses, cities and utilities that have, in the interim, made competing claims to water.

It has taken an average of about 18 years for Arizona tribes to reach even a partial water-rights settlement, according to a ProPublica and High Country News analysis of data collected by Leslie Sanchez, a postdoctoral fellow at the U.S. Forest Service’s Rocky Mountain Research Station, who researches the economics of tribal water settlements. The Arizona tribes that filed a claim but are still in the process of settling it have been waiting an average of 34 years.

Chairman Calvin Johnson of the Tonto Apache Tribe — which has a small reservation next to the Arizona mountain town of Payson — remembers, as a child, watching his uncle, then the chairman, begin the fight in 1985 to get a water-rights settlement.

Still without a settlement, the tribe hopes to one day plant orchards for a farming business, build more housing to support its growing population and reduce its reliance on Payson for water, Johnson said. But, faced with Arizona’s demands, the tribe has not yet accepted a deal.

“The feeling that a lot of the older tribal members have is that it’s not ever going to happen, that we probably won’t see it in our lifetime,” Johnson said.

Turning to the courts

Tribes that hope to avoid Arizona’s aggressive tactics can instead go to court — an even riskier gamble that drags on and takes the decision-making out of the hands of the negotiating parties.

The Kaibab Band of Paiute Indians is the only federally recognized tribe in Arizona yet to file a claim for its water. It has a reservation near the North Rim of the Grand Canyon, but with only 400 members and minimal resources, it would face a daunting path forward. To settle its rights, the tribe would have to engage in court proceedings to divvy up Kanab Creek, the only waterway that crosses its reservation; bring anyone with a potential competing claim to the creek’s water; find money to complete scientific studies estimating historical flows; and then, because the waterway spans multiple states, possibly face interstate litigation before the U.S. Supreme Court.

“It’s about creating and sustaining that permanent homeland,” said Alice Walker, an attorney for the band, but the path between the tribe and that water “boils down to all of those complex, expensive steps.”

Arguing before the Supreme Court on behalf of Arizona and other parties in 1983, Kyl successfully defended a challenge to a law called the McCarran Amendment that allowed state courts to take over jurisdiction of tribal water-rights claims.

“It’s about creating and sustaining that permanent homeland.”

“Tribes are subject to the vagaries of different state politics, different state processes,” explained Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho and a citizen of the Cherokee Nation. “As a result, two tribes with identical language in their treaties might end up having, ultimately, very different water rights on their reservations.”

Some states, such as Colorado, set up special water courts or commissions to more efficiently settle water rights. Arizona did not. Instead, its court system has created gridlock. Hydrological studies needed from the Department of Water Resources take years to complete, and state laws add confusion over how to distinguish between surface and groundwater.

Two cases in Arizona state court that involve various tribes — one to divide the Gila River and another for the Little Colorado River — have dragged on for decades. The parties, which include every person, tribe or company that has a claim to water from the rivers, number in the tens of thousands. Just one judge, who also handles other litigation, oversees both cases.

Even Kyl now acknowledges the system’s flaws. “Everybody is in favor of speeding up the process,” he said.

After years of negotiations that failed to produce a settlement, the Navajo Nation went to court in 2003 to force a deal. Eventually, the case reached the Supreme Court, which heard it this March. Tribes and legal experts are concerned the court could use the case to target its 1908 precedent that guaranteed tribes’ right to water, a ruling that would risk the future of any tribes with unsettled water claims.

The Navajo Nation, according to newly inaugurated President Buu Nygren, has huge untapped economic potential. “We’re getting to that point in time where we can actually start fulfilling a lot of those dreams and hopes,” he said. “What it’s going to require is water.”

Just across the Arizona-New Mexico border, not far from Nygren’s office in Window Rock, construction crews have been installing the 17 miles of pipeline that could one day deliver large volumes of the tribe’s water to its communities and unlock that potential. Because of Arizona’s changes to the federal law, that day won’t come until the state and the Navajo Nation reach a water settlement.

For now, the pipeline will remain empty.

Anna V. Smith is an associate editor of High Country News. She writes and edits stories on tribal sovereignty and environmental
justice for the Indigenous Affairs desk from Colorado. @annavtoriasmith

Mark Olalde is an environment reporter with ProPublica, where he investigates issues concerning oil, mining, water and other topics around the Southwest.

Umar Farooq is an Ancil Payne Fellow with ProPublica, where he reports on national issues. @UmarFarooq_

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