Revisiting Merrion V. Jacarilla Apache Tribe: Robert Nordhaus and Sovereign Indian Control Over Natural Resources on Reservations
Posted: 11 Oct 2004
In 1982, the Supreme Court held in Merrion v. Jicarilla Apache Tribe that tribes have the sovereign power to tax non-member oil and gas lessees on reservations. Merrion sanctioned an expansive view of tribal sovereignty at a time when many western tribes were adapting to a new federal policy of self determination by trying to take charge of natural resource production on the reservations. Merrion suggested that the Court would respect the efforts of tribes to govern as distinct political entities.
Twenty years after Merrion, Robert Nordhaus and two co-authors reconstruct the seminal case he brought to the Supreme Court as the Jicarilla Apache Tribe's attorney. The following account is based on transcripts of interviews with Nordhaus taped in 1997 as part of the University of New Mexico School of Law's New Mexico Oral History Project. The interviews were supplemented by legal research in the archives of the New Mexico Federal District Court, the Tenth Circuit Court of Appeals, and the United States Supreme Court. In addition, the authors drew on the personal papers of Robert Nordhaus, as well as the papers of Supreme Court Justices William J. Brennan and Thurgood Marshall. Interviews of various participants - judges, lawyers, and law clerks - completed the research. The resulting annals of litigation provide an intimate portrait of a critical lawsuit involving a critical issue - sovereign Indian control of natural resources on reservations - as important and fragile in the course of the litigation then as it is today.
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