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Abstract:
Indian land claims have long been a foundational and fundamental subject of American law. Indians and Indian tribes have long been acutely aware that their land base has been shrinking since the beginning of the European invasion. Outnumbered, outgunned, and outbrutalized, Indians have had little choice but to recede. But Indians and Indian tribes have never forgotten their sacred homelands and continuously seek to restore whatever lands they can. This behavior, it seems, baffles non-Indian legal experts and legal philosophers, who argue that these "ancient" Indian land claims should be dismissed. Conversely, there are legal scholars who argue that the Indian rights to land are as absolute as to justify the restoration of vast amounts of land to Indian tribes. In short, there is a wide spectrum of choice for courts in relation to Indian land claims - courts can dismiss the claims altogether or restore the vast tribal land base or choose a middle ground.

Until recently, the courts have chosen a version of the middle ground, best exemplified by the Supreme Court's decisions in the Oneida Indian Nation's land claims. The federal courts might not approve of tribes suing hundreds or thousands of "innocent" landowners for eviction, but were willing to allow tribes to sue for trespass damages. The Second Circuit recently rejected this long-established middle ground in Cuygua Indian Nation of N.Y. v. Pataki and dismissed the Cuyuga Indian Nation's land claims based on the equitable doctrine of laches, relying exclusively on a recent Supreme Court case, City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y.

This Article rejects the conclusions of the Second Circuit and argues instead that there is no principled reason to depart from the middle ground of earlier cases. We choose to begin by discussing tribal land dispossession from the point of view of the Indians who had been victimized by non-Indians. We discuss two instances of tribal land dispossession of the lands of the Michigan Anishinabeg that have yet to be remedied. These forms of tribal land dispossession are remedial under the middle ground of analyzing Indian land claims. We further discuss the origin of equity and its relationship to the law. We introduce the notion that laches is a powerful judicial tool subject to arbitrary and abusive exercise by the judiciary. We conclude our argument by asserting that laches is an improper judicial tool for resolving Indian land claims. We note that non-Indian defendants have long argued that Indian land claims should be barred by laches and, in the most persuasive cases, those defenses have been rejected. We argue that the underlying purpose of laches is not consistent with the exercise of laches by the City of Sherrill and Cuyuga Indian Nation courts. We conclude by lamenting that the dispossession of tribal lands has moved from the 19th century notion of brute force and the 20th century notion of corrupt political processes to the 21st century notion of final and complete judicial action to eradicate Indian land claims.

Abstract:
Federal and state statutory and regulatory protections do not appear to be the answer to preventing the calamity ongoing in the waters of the Great Lakes. To fill in the gap, environmental advocates and scholars devote much of their attentions to the public trust doctrine, first articulated in this context by Joseph Sax. There is little attention devoted to the insights of Indian tribes or the potential legal benefits of invoking Indian treaty rights. The Supreme Court has long affirmed the supremacy of Indian treaty provisions and, while the Court's interpretation of some treaties has been cramped at best, the Great Lakes and Pacific Northwest treaties have been interpreted in a manner that suggests there is room to provide for protection of major water bodies.

We propose to incorporate Indian treaty jurisprudence into the strategy for saving the Great Lakes. The interests of the parties tend to be the same - the preservation of the resource. Indian treaties negotiated by Indian peoples that relied on water as a means of survival - economic, cultural, and political - provide a potential (and as yet untested) legal tool for the preservation of major water bodies such as the Great Lakes.

Indian, tribe, treaties, environmental law, Great Lakes, water, conservation, public trust, critical race theory