
Originally Posted by
Midtowner
It's not really as simple as the Indians "deserve their land." The vast majority of that land was bargained away and sold decades ago and no one is even talking about reversing those sales. This is about who receives the ad valorem taxes from those lands, this is about mineral and water rights from the land. There are cases suggesting that even where a reservation was disestablished, if Congress did not specifically remove the mineral rights, then the tribe retains those. There are cases regarding water which cut the other way--the Winters case, for example, completely undercuts the tribal claims to water rights in the well-watered eastern part of the state as it held there's an implicit grant of sufficient water rights to irrigate the irrigable land within the tribal boundaries (as it was implied [again, don't you love how they get all of this stuff through implicit language, but can't lose stuff except by explicit language?] that the purpose of reservations was to allow tribes to adopt an agrarian lifestyle)--so in Winters, the tribes wouldn't be granted any more water by implication than that which is necessary to irrigate the irrigable parts of the land--and in Eastern Oklahoma, plenty of water falls from the sky, and that for sure wouldn't grant tribal governments the rights to ALL of the water as some of their litigation has claimed.
Until Castro-Huerta, we had a taste of what some of these governments want to argue is their right, and it was 100% a case of the dog catching the car. It was a complete mess. It would be the same with environmental regulation, and the Oklahoma DEQ and the Water Resources Board have more expertise and resources than all of the tribal governments combined, despite the broad negative brush some would try and paint with. Tribal governments would arguably still have to comply with EPA mandates, and they don't have the resources in place to do that.
And then what happens when a company needs to build a pipeline across the state? Should they just build in Kansas, Arkansas and Texas because they don't want to deal with the ever changing landscape of up to 30 different sovereigns all seeking their own pound of flesh?
That it isn't a very workable situation is a very real and very solid argument--and I'll bet dollars to donuts that the current SCOTUS is going to get ahold of some of these cases and restore order to this situation.
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