Supporting Tribal Sovereignty and Homelands
The Environment and Natural Resources Division brings affirmative litigation and defends decisions of the United States to support tribal homelands and tribal sovereignty. This work includes protecting tribal lands from encroachment or diminishment. The Division secures federal reserved water rights held by the United States for the benefit of Tribes to ensure that tribal reservations provide viable permanent homelands. ENRD also litigates a significant number of cases defending decisions of the Department of the Interior that promote tribal interests.
Tribal Lands and Jurisdiction
ENRD plays a key role in protecting the almost 60 million acres of lands held in trust by the United States for Indian Tribes and their members. Upholding tribal sovereignty is manifested through cases involving tribal land status and governance over resource management and land use. ENRD’s work includes protecting the integrity of tribal reservation boundaries from diminishment or disestablishment and bringing trespass actions against non-Indians impinging on trust land without permission of the Tribe or damaging such lands.
Tribal Treaty Hunting and Fishing Rights
The United States Constitution’s Treaty Clause authorizes the President to make Treaties, with the concurrence of two-thirds of the Senate. In total, the United States has ratified approximately 374 treaties with federally recognized Tribes. Through these treaties, Tribes ceded land and natural resources to the United States, while retaining all rights not expressly granted. The United States Supreme Court has affirmed this principle of reserved rights, explaining that treaties are “not a grant of rights to the Indians, but a grant of rights from them, a reservation of those not granted.” United States v. Winans, 198 U.S. 371, 381 (1905). These rights often include the right to hunt, fish and gather plants both on and off reservation. ENRD brings affirmative litigation and participates in negotiations to protect the treaty guaranteed rights and resources associated with tribal lands, including tribal treaty hunting, fishing, and gathering rights.
Adjudication of Tribal Water Rights
Finally, the Division secures tribal water rights in adjudications throughout the arid West by asserting federal reserved water rights held by the United States for the benefit of Tribes so that reservations provide viable permanent homelands. Water rights are necessary to ensure water for domestic and economic use as well as providing necessary habitat for culturally important fish, animal, and plant species.