Messed Up Animal Ecology. Why you can't separate out your favorite animal, and demonize your least favorite, and make a lick of sense.

The other night on the local news, some guy from some environmental outfit was yapping about "wild horses", equating them "with other wild animals like deer and elk", and suggesting that cattle need to be removed from the range.

One of the things he brought up about cattle were their numbers, in comparison to "wild" horses.

His argument was intellectually bereft, but then arguments in this area often are.

Winslow Homer painting of a (fairly thin looking) plow horse.  Lots of "chunks" were let go in the 30s when their owners droughted out, their descendants still roaming the range today.

There are no wild horses in North America at all.

None, nada, zippo, "0".

There are a little over 64,000 feral horses, all in the West, in the Western United States.  If we include burros, which at least nobody pretends are a wild animal, there are 82,000 feral equines.  

All wild equines stem, at the very oldest, from animals that were brought on to the continent in 1519.  Quite a few probably don't really have any Spanish blood in their veins at all, and hail from horses much more recently brought in. There's fairly good evidence that in the upper West horses came down out of Canada, not up from Mexico.  

Some poor coureur des bois awakened one morning, in other words, and thought "Chu dans marde! Mon cheval est parti!"

"Bourgeois" W---r, and His Squaw" by Alfred Jacob Miller, depicting a coureur des bois and his Native American spouse.  This is a famous painting, but we're not supposed to like it now.  One art museum notes about it:  "These words, which shaped how Miller's contemporaries viewed the watercolors, reveal the racism and sexism embedded in 19th-century exploration and colonization of the western part of what is today the United States."  Oh, horse crap.  Most trappers were culturally French, and the French had intermixed with the native population from day one.  This could just as easily be "guy and his wife."  The comment itself imposed an Anglo-American view on a Franco-American and Native American landscape.

Moreover, the introduction date to the Native Americans, at least on the Northern Plains, is much more recent than supposed, and even then, they didn't take them right up.  Indeed, among the Shoshone it produced a big argument, with the arguers, mostly young men, taking off and acquiring the name "The Arguers", i.e., Comanche.

In the 1930s, a lot of farmers in the West droughted out and simply let their horses go, including stocky draft horses, i.e., "chunks". Then again, in the 1970s the numbers of wild horses expanded as recent imports abandoned pasture pets out on the range and went back to their homes in Port Arthur, or wherever, and even now some of that happens.  The majestic broom tail of the range today may have been Little Becky's 4H project before she left for UW, died her hair purple, and started protesting for Hamas.

Okay, so what about cows?

Long horn in a herd of Angus or Black Baldies.  I'm not really sure how this bovine ended up in this herd.

They came in at just about the same time, or earlier.  Cattle were brought to the Caribbean as early as 1493 by Columbus, which is really early.  "In 1492 Columbus sailed the Ocean Blue", but in 1493 the livestock truck, basically, pulled up to the dock.  Cows can and do go wild, but nobody gets very romantic about it, and there isn't a Wild and Free Ranging Cow Act.  Nobody goes by the moniker "Wild Cow Annie".  A wild cow we had went rogue and recruited other cows to her rogue wild cow band, which shows how wild they can get.  A neighboring rancher, caught her and shipped her as a menace. We got the check, and were happy for that end.

There are about 90,000,000 head of cattle in the United States as of this past summer, down from 100,000,000 in 1998.  

Okay, that's a lot of cows.

Which bring back our ignorant protagonist's point.  Before Columbus came and said "let's stock this range and lose some horses doing it", he seems to argue, the rangeland was empty of large ungulates.

Um, nope.

There were something like 50,000,0000 to 75,000,000 buffalo.

But, gee, Yeoman, that would mean that the entire ungulate supporting range of North America has always had a lot of large ungulates on it. . . 

Yep, that's what it means.

Currently, there are about 20,500 Plains bison in wild herds and an additional 420,000 in commercial herds, which we are supposed to pretend are wild herds.

Given our inability to accurately state how many head of anything were on the Pre Columbian landmass, what this basically tells you is the ungulate population hasn't changed very much.  Overall populations of large wild animals, i.e., "big game" are way up, however, due to water projects and farmed fields.

So the entire Cow Bad/Horse Good argument is pretty flawed.

Now, the line of last defense on this is that cows cause global warming. That's because cows fart.

Buffalo don't.

Umm. . . 

Well, buffalo do, but only Febreeze.

Well, no, they fart methane too.

In reality, all mammals fart, but some fart more than they otherwise would due to diet.  You already know this due to your coworker who has, every day, the Lumberjack Special at Hefty Portions for breakfast, followed by the Ejército del Norte special at El Grande Conquistador for lunch, a quart of scotch around 2:00 p.m., and goes home and has his spouse's Roast Wildebeest Surprise for dinner (all Keto approved, of course).  The only real argument here, therefore, is that maybe cattle ought not to be finished off on corn, which they probably wouldn't normally do unless somebody left a gate down. That likely makes them gassy.

Lascaux painting of aurochs, approximately 36,000 years ago.  Note also the deer/roebucks and horse depicted.

Taking this out worldwide, I'd note, cattle are native to the entire rest of the planet in some form, save for Australia.  Wild cattle ranged Europe, Asia and Africa.  They aren't new here, and they've been wondering around chewing their cuts and farting for longer than we've been a species.

So back to environmental destruction.

The first real notable example of it was Cottonwood bottoms in the American West.  During the winter, buffalo hang out in them.  Feral horses took it up.  And mounted Native Americans, who previously had a pretty limited impact on the environment, did too.

But you can't really say anything about that.

Address of His Holiness Pope Francis to the Conference of Parties to the United Nations Framework Convention on Climate Change (COP28)

Pope Francis released this statement yesterday:

Mr President,

Mr Secretary-General of the United Nations,

Distinguished Heads of State and Government,

Ladies and Gentlemen,

Sadly, I am unable to be present with you, as I had greatly desired.  Even so, I am with you, because time is short.  I am with you because now more than ever, the future of us all depends on the present that we now choose.  I am with you because the destruction of the environment is an offence against God, a sin that is not only personal but also structural, one that greatly endangers all human beings, especially the most vulnerable in our midst and threatens to unleash a conflict between generations.  I am with you because climate change is “a global social issue and one intimately related to the dignity of human life” (Apostolic Exhortation Laudate Deum, 3).  I am with you to raise the question which we must answer now: Are we working for a culture of life or a culture of death?  To all of you I make this heartfelt appeal:  Let us choose life!  Let us choose the future!  May we be attentive to the cry of the earth, may we hear the plea of the poor, may we be sensitive to the hopes of the young and the dreams of children!  We have a grave responsibility: to ensure that they not be denied their future.

It has now become clear that the climate change presently taking place stems from the overheating of the planet, caused chiefly by the increase of greenhouse gases in the atmosphere due to human activity, which in recent decades has proved unsustainable for the ecosystem.  The drive to produce and possess has become an obsession, resulting in an inordinate greed that has made the environment the object of unbridled exploitation.  The climate, run amok, is crying out to us to halt this illusion of omnipotence.  Let us once more recognize our limits, with humility and courage, as the sole path to a life of authentic fulfilment.

What stands in the way of this?  The divisions that presently exist among us.  Yet a world completely connected, like ours today, should not be un-connected by those who govern it, with international negotiations that “cannot make significant progress due to positions taken by countries which place their national interests above the global common good” (Encyclical Letter Laudato Si’, 169).  We find ourselves facing firm and even inflexible positions calculated to protect income and business interests, at times justifying this on the basis of what was done in the past, and periodically shifting the responsibility to others.  Yet the task to which we are called today is not about yesterday, but about tomorrow: a tomorrow that, whether we like it or not, will belong to everyone or else to no one.

Particularly striking in this regard are the attempts made to shift the blame onto the poor and high birth rates.  These are falsities that must be firmly dispelled.  It is not the fault of the poor, since the almost half of our world that is more needy is responsible for scarcely 10% of toxic emissions, while the gap between the opulent few and the masses of the poor has never been so abysmal.  The poor are the real victims of what is happening: we need think only of the plight of indigenous peoples, deforestation, the tragedies of hunger, water and food insecurity, and forced migration.  Births are not a problem, but a resource: they are not opposed to life, but for life, whereas certain ideological and utilitarian models now being imposed with a velvet glove on families and peoples constitute real forms of colonization.  The development of many countries, already burdened by grave economic debt, should not be penalized; instead, we should consider the footprint of a few nations responsible for a deeply troubling “ecological debt” towards many others (cf. ibid., 51-52).  It would only be fair to find suitable means of remitting the financial debts that burden different peoples, not least in light of the ecological debt that they are owed.

Ladies and Gentlemen, allow me to speak to you, as brothers and sisters, in the name of the common home in which we live, and to ask this question: What is the way out of this?  It is the one that you are pursuing in these days: the way of togetherness, multilateralism.  Indeed, “our world has become so multipolar and at the same time so complex that a different framework for effective cooperation is required.  It is not enough to think only of balances of power… It is a matter of establishing global and effective rules (Laudate Deum, 42).  In this regard, it is disturbing that global warming has been accompanied by a general cooling of multilateralism, a growing lack of trust within the international community, and a loss of the “shared awareness of being… a family of nations” (SAINT JOHN PAUL II, Address to the United Nations Organization for the Fiftieth Anniversary of its Establishment, New York, 5 October 1995, 14).  It is essential to rebuild trust, which is the foundation of multilateralism.

This is true in the case of care for creation, but also that of peace.  These are the most urgent issues and they are closely linked.  How much energy is humanity wasting on the numerous wars presently in course, such as those in Israel and Palestine, in Ukraine and in many parts of the world: conflicts that will not solve problems but only increase them!  How many resources are being squandered on weaponry that destroys lives and devastates our common home!  Once more I present this proposal: “With the money spent on weapons and other military expenditures, let us establish a global fund that can finally put an end to hunger” (Encyclical Letter Fratelli Tutti, 262; cf. SAINT PAUL VI, Encyclical Letter Populorum Progressio, 51) and carry out works for the sustainable development of the poorer countries and for combating climate change.

It is up to this generation to heed the cry of peoples, the young and children, and to lay the foundations of a new multilateralism.  Why not begin precisely from our common home?  Climate change signals the need for political change.  Let us emerge from the narrowness of self-interest and nationalism; these are approaches belonging to the past.  Let us join in embracing an alternative vision: this will help to bring about an ecological conversion, for “there are no lasting changes without cultural changes” (Laudate Deum, 70).  In this regard, I would assure you of the commitment and support of the Catholic Church, which is deeply engaged in the work of education and of encouraging participation by all, as well as in promoting sound lifestyles, since all are responsible and the contribution of each is fundamental.

Brothers and sisters, it is essential that there be a breakthrough that is not a partial change of course, but rather a new way of making progress together.  The fight against climate change began in Rio de Janeiro in 1992, and the 2015 Paris Agreement represented “a new beginning” (ibid., 47).  Now there is a need to set out anew.  May this COP prove to be a turning point, demonstrating a clear and tangible political will that can lead to a decisive acceleration of ecological transition through means that meet three requirements: they must be “efficient, obligatory and readily monitored” (ibid., 59).  And achieved in four sectors: energy efficiency; renewable sources; the elimination of fossil fuels; and education in lifestyles that are less dependent on the latter.

Please, let us move forward and not turn back.  It is well-known that various agreements and commitments “have been poorly implemented, due to the lack of suitable mechanisms for oversight, periodic review and penalties in cases of non-compliance” (Laudato i’, 167).  Now is the time no longer to postpone, but to ensure, and not merely to talk about the welfare of your children, your citizens, your countries and our world.  You are responsible for crafting policies that can provide concrete and cohesive responses, and in this way demonstrate the nobility of your role and the dignity of the service that you carry out.  In the end, the purpose of power is to serve.  It is useless to cling to an authority that will one day be remembered for its inability to take action when it was urgent and necessary to do so (cf. ibid., 57).  History will be grateful to you.  As will the societies in which you live, which are sadly divided into “fan bases”, between prophets of doom and indifferent bystanders, radical environmentalists and climate change deniers…  It is useless to join the fray; in this case, as in the case of peace, it does not help to remedy the situation.  The remedy is good politics: if an example of concreteness and cohesiveness comes from the top, this will benefit the base, where many people, especially the young, are already dedicated to caring for our common home.

May the year 2024 mark this breakthrough.  I like to think that a good omen can be found in an event that took place in 1224.  In that year, Francis of Assisi composed his “Canticle of the Creatures”.  By then Francis was completely blind, and after a night of physical suffering, his spirits were elevated by a mystical experience.  He then turned to praise the Most High for all those creatures that he could no longer see, but knew that they were his brothers and sisters, since they came forth from the same Father and were shared with other men and women.  An inspired sense of fraternity thus led him to turn his pain into praise and his weariness into renewed commitment.  Shortly thereafter, Francis added a stanza in which he praised God for those who forgive; he did this in order to settle – successfully – an unbecoming conflict between the civil authorities and the local bishop.  I too, who bear the name Francis, with the heartfelt urgency of a prayer, want to leave you with this message: Let us leave behind our divisions and unite our forces!  And with God’s help, let us emerge from the dark night of wars and environmental devastation in order to turn our common future into the dawn of a new and radiant day. 

 Thank you.

I'll be frank that I've gone from being cautious about Pope Francis to being in the "non fan" category.  I do not, however, by that mean that I'm in the flirting with sedevacantism category like Patrick Coffin and the like.  He's the Pope.   I tend to think, however, that as the Pope he represents his generation of Westerner to a very large degree, which has retained a view it formed in its youth that things need to change in a "progressive" direction and be more "inclusive".  The better evidence is that this is in error and we see a strong trend in the young Church in the other direction. The ultimate irony of that is that the mantilla wearing young women at Mass may be much more representative of the future than the young man this state sent to the Synod.

And it's been hard to ignore that while the Pope struggles with his racing into oblivion and potentially apostasy European contingent and some of their American allies, he hasn't suppressed them.  He's done just that with his critics on the right. The recent actions against Cardinal Dolan are shocking, particularly while the leadership of a German church with lots of Euros but emptying pews are given verbal warnings but are not otherwise checked.  

But he continues to surprise in ways. Contrary to what people assert, he's never endorsed things long regarded as sins, even though he seems increasingly willing to tolerate them.  And on greater issues, he certainly remains both catholic and Catholic.

This is one of them.

The Pope here is indeed acting both very catholic and Catholic.  This is going to receive howls of protests in some quarters, including in those quarters of the West where populists assert they are acting on Christian principles.

Some of those howling will be Catholics, but as noted here earlier, in the United States, Catholics are often heavily Protestantized.  Not all Protestants will object to this statement, of course, and I'd be surprised if any serious "main line" Protestant body does.  But people like Speaker of the House Mike Johnson will, and others will object to it along similar lines as he's likely to, assuming he says anything (which he's not likely to, as 1) taking on the Pope is a bad idea, and 2) it's definitely a bad idea if you are from a state with a lot of Catholics).  Other politicians will of course oppose this, and will do so openly if they're in a place that's safe to do it.

And as noted, some rank and file Catholics in the U.S., and I imagine in the increasingly MAGAized Canadian West, will as well.

Blog Mirror: Mystic Plains

 Mystic Plains

Today In Wyoming's History: January 1, 1863

Today In Wyoming's History: January 1. New Years Day: Today is New Years Day. 45 BC  January 1 celebrated as the beginning of the year for the first time under the Julian Calendar.  Recogni...

One I missed on its anniversary:

1863  Daniel Freeman files the first homestead under the newly passed Homestead Act.  The homestead was filed in Nebraska.

While the original Homestead Act provided an unsuitably small portion of land for those wishing to homestead in Wyoming, it was used here, and homesteading can be argued to be responsible for defining the modern character of the State.

Coal in Alberta - It Ain't Over Until It's Over!

This is a video by Canadian singer/rancher Corb Lund.

I'm posting it here for an odd reason. This reminds me so much of the view that Wyomingites and Montanans held back in the 70s its not funny.  You'd never guess that now.

A Thankgiving Day pondering.

(Note, this is one of many post that was lingering in the draft section for years, and was only now posted).

Something has happened . . . some ground moving departure from reality in the West.  But was it a slow evolution, or a rapid one.  Has it always been occurring, and does that mean perhaps we're just on the crest of a big wave, and some future generations will look back and see this era as simply insane?

When you are in the midst of something, it's not really obvious that it's occurring until it's far advanced, whether that change is for good or ill.  I'm sure, for example, Neanderthals didn't appreciate that the arrival of Cro Magnons in the neighborhood signaled the end of their human line, as for the very first of them, it didn't. The first Shoshone to meet a European American probably didn't think; "well. .  better ask for a reservation bordering the Wind Rivers right now". . . that's not how human experience work.

But at some point, at least for the observant, that day does arrive when you can look out and say "this is really amiss", but that doesn't mean that you grasp how it went amiss.

Well, things are amiss.

That's been obvious to me for a long time, but not to the degree to which it currently is, and not with what seems to be the clarity which I think I have on it now.  But, suffice it to say, at some point we boarded the train to unnatural existence, and it's plaguing us now.  Getting back will not be easy, and while I think nature and providence always self correct, I won't live long enough to see that correction.

It's important to note, when you state such things, that a perfect past never existed.  Other people, who sense something is wrong and turn their gaze back, far too often imagine a perfect past in some distant era.  That was never the case.  There was never a Camelot.

And even if there might have been a real Arthur of some sort, and even if he was a chieftain of some type, it was still the case that for most people the world hasn't been prefect.

Being a Medieval lord, in other words, may have been grand, but eking out your existence on a handful of oats and barley every day as a bound serf. . . not so much.

And so with every era.  Being a Roman magistrate would have been nifty, probably. A Roman slave? Not.  Being an American in 1830 would seem cool to me. . . as long as I wasn't black or an Indian on the border of lands about to be consumed by the American nation.

You get my point.

But one thing that has occurred since those times, or at least since the late period of the Roman Empire, is that we, and by that I mean Western Society, and which by that I mean the force that seems to drag the entire world along with it, has slipped into some sort of perverse anti-natural state.

How did that happen?

And when did it start to occur?

Colter Wall "Bury Me Not on the Lone Prairie"- Live from Speedy Creek

Lost as to what to do, Stepping back to the bench, Leaving and coming back, and Cultural heritage. More conversations, was Lex Anteinternet: Mid Week At Work. Overheard retirement conversations.

Lex Anteinternet: Mid Week At Work. Overheard retirement conversati...: Now it's 67, after a certain age. . . for the time being.  Just like Wyoming judges used to have to retire at 70 and Game Wardens at 60....

I posted this just the other day, but since that time have heard two more conversations, both among fellow lawyers, regarding retirement that made me pause.

The first was from a lawyer I know well, well I'm related to him, more or less (it's sort of complicated).

Anyhow, he stated something to the effect that he'd be completely lost as to what to do with his time if he retired and therefore, implicitly, has no intention of doing so.

Now, it's not the case that this individual is 80 years old or something.  He's in his mid 60s.  But still, this is remarkable for a variety or reasons that I'll not put in here.

One of the most remarkable things about it is that an individual with a really lively mind, in an occupation that appeals to polymaths by it very nature, wouldn't at some point to want to leave it to explore other interests, while they still could.

It truly baffles me, but I hear that a lot.

Of course, some of that view is subject to a person and pressure.  At least, from what I've observed, lawyers who have that view are the ones who have a very limited number of things going on at any one time.  Lawyers who are extremely busy seem to be more inclined to ponder retiring, as they really can't look into things other than what their work demands.

I'd note that there's a legal journal out there that notes this view as a problem for the law.  Some lawyers get to where they can't leave it, as they're so dedicated to their work. But their work starts to decline anyway with advancing age.

Not related to this conversation, but to another one that I recently also heard, a lawyer I know whose just past his mid 60s and who has been talking about retirement for years, now says he wants to step back to a more advisory role.

The concept that this can be done is something you'd read in things like the ABA Journal.  Maybe some small percentage of lawyers actually can do that, but I think it's pretty small, and it also depends on what they did.  Litigators?  Nah, can't be done.

Again, it's interesting.  A person goes from wanting to step back, and just take life easy, to wanting to step back and let somebody else carry the ball and only be called in for special plays.  But once you are the quarterback, if you will, you probably are going to be hesitant to do that, particularly with an older lawyer, who will tend to criticize your decisions, if you are younger.  And lawyers who do only what they want to do, in litigation, rather than what has to be done, don't turn out to be that much help and people know that.

Which leads to another random observation.  A couple of years ago I ran into a lawyer who had switched from some sort of business law field into litigation, and into insurance defense litigation at that.

That's the hardest kind of law there is, and people don't get in it when they are old.  But he must have entered into it in his 60s.  He was good at it, I'd note, but I think that's frankly crazy.  It's also a little pathetic.

It's crazy for one thing in that it's one of the fields of law that's 24 hours a day, 7 days a week, all the time.  Just at the time most people would actually think about retiring, that's effectively retiring into backbreaking work.  It's like giving up a seat in the construction company's front office to go dig ditches.

Of course, there are some people who like fighting or crave field excitement.  That's why you see old guys try to volunteer for wars in some instances, or policemen who have worked as bailiffs for 20 years ask to go out on the street.  They probably really love their occupations, but felt less worthy of them as they'd never been in the thick of it.  People who have been in the thick of it are less likely to feel that way later on.

And on another overhead item; 

But that’s not what I came here to talk about. I came to talk about becoming native to this place—

Wes Jackson, taken grossly out of context.

There's a fellow (I'm clearly not going to name him) whom I first knew when he was part of a professional firm years ago.  It was significant, to be sure, and therefore, he was also, as part of it.

He left it for some reason, I never knew why.  In the following period, he practiced his profession on his own.  He ran for office in that time period.  I might have voted for him, I can't recall, but he remained a pretty serious figure and I recall at least contemplating voting for him.

Then he left the state.

For decades.

Things happened in the intervening decades.  People died, people arrived, new political figures came and replaced the old.

He returned. But, as would be the case, he returned a couple of decades older, or more than that, than he'd been when he left.

A couple of decades in a person's life is a long time.  We sometimes tend to forget that.  

Returns from long absences are not uncommon in this region.  People grow up and move out, taking jobs in far off regions of the country, and then come back in retirement.  Others, like the fellow I mentioned above, grow up here, go to work here, and then leave for brighter horizons, or due to marriages, or due to family, or just because they've become sick of living in a place where life is always hard, and life here is always hard. And then they return, having secured their fortunes, usually, in the form of some sort of secured retirement.

Everyone once in a while, however, a person returns to go back to their original pursuits. That's really rare.  That's the case here, however, in the instance of the fellow I'm mentioning.

This nameless essay is about all sorts of these folks.

When you leave a place, you leave it.  Some of that place remains with you, but it remains with you in a way that's sort of fixed in time.  Ft. Sill is that way with me.  It'll always be part of me, even though I wasn't there for eons, but it is the Ft. Sill that existed in the early 1980s.  It's changed since then.  I know that from people who have been there since.  Yes, much of what makes Ft. Sill, Ft. Sill, still exists, but the Army of 2022 isn't the Army of 1982.  I can look back and still see it in my distant rearward looking mental view, but that view isn't the same, exactly, for those who are receiving artillery training in 2022.

Now, things would be much different if I'd never left Ft. Sill.  It'd all be part of my mental makeup.

When you leave and go to a new place, and stay there for quite some time, that new place becomes part of you significantly.  At some point, while the old place never leaves you, what it is today isn't.  Or, in quite a few places in modern American life, quite frankly, no place becomes part of you.  You aren't native to this place. . . . you aren't native to any place.

The fellow I started this essay off with is beyond retirement age, which makes this sort of a strange return in the first place.  He's not retired.  He's at an age where he really should be, truly.

And in the intervening years, he's lost his relevance, but doesn't seem to know that. Due to a recent event in which he participated, he really ought to.  You really don't get to spend half your life somewhere else, and then go back to where you were from, and pick up again and expect people to know or care who you are, or to treat you like you are thirty years younger than you really are.  You are an old stranger in a country which, as Cormac McCarthy reminds us, is "no country for old men", at least to the extent that you were a young man when last here, grew old somewhere else, and came back as though you never aged.

Back to my original interlocutor, the other thing he noted is that he'd be worried whether or not he had saved enough money to retire.

Knowing him, I'll bet he has.  As we are from the same extended family and share the same general cultural roots, we're in the group of, essentially, blue collar Catholics who ended up lawyers.

There are, frankly, a lot of us, and in many instances our parents weren't industrial workers either.  But we're drawn from the same pool of Irish, Italian, and South Slavs by cultural heritage whose ancestors never would have thought of going to university prior to World War Two, and who worked in industries or agriculture in one way or another that were pretty working class in some fashion.  He tends to bring that up, in another form, more than I do.

The reason that matters is that we all live pretty modest lives, so it's not like we're taking big fancy vacations or driving new cars all the time.  

It also means, however, that even in our early 60s we probably still have kids in college and, due to the history of our families, we expect things to fail.  There's going to be an economic depression. There's going to be hyperinflation.  Things are going to be bad.  It's just earlier to work until we're sure that we're safe, and that day will never come.

Old Corrals and Sagebrush

Old Corrals and SagebrushOld Corrals and Sagebrush

Tuesday, April 7, 1942. Race and the War in the United States.

Sarah Sundin, on her blog, related to incidents in the history of racism in the United States and more particularly during World War Two.

Today in World War II History—April 7, 1942: Representatives from 11 western states meet with War Relocation Authority to protest Japanese-Americans evacuating to their states.

As she goes on to note, only Colorado provided the exception to rule here, indicating its willingness to accept internees.  

Wyoming, which would end up with Heart Mountain, was very hostile to accepting them, but would end up with a camp nonetheless.

She also noted on her blog:

US Navy announces that Blacks can enlist for general service (Seabees, shore duty, stevedores), not just in the mess, as of 1 June 42, allowing time to build segregated facilities.

As we've noted in a detailed entry on this blog, the military was segregated at this time and black sailors were relegated to the mess, as noted.  The irony in the case of the Navy was that it had not been segregated in the 18th and 19th Centuries, but became segregated, and indeed beyond segregated in that it relegated blacks to the mess, with the onset of modern steel warship at the end of the 19th Century.  As we earlier noted:

The story for the Navy was somewhat similar, in that it saw the return of blacks to active combat service.  Starting off the war being relegated to secondary service roles, as the war progressed blacks were reincorporated, on a segregated basis, into combat service. By the war's end it was the case that even two ships had all black crews and blacks had

The all black enlisted crew of a submarine chaser.

Black sailors of the USS Mason, a ship crewed by all black enlisted men.

Under pressure from the Roosevelt Administration, the Navy also commissioned a handful of black officers for the first time since the Navy's early history.  The officers largely saw service limited to shore roles due to the segregated nature of the Navy, but at least one was assigned as an officer on board one of the two entirely black crewed ships.

The first black Naval officers during World War Two.

The Maltese capital of Valletta was heavily hit by a German air raid, destroying the famous Royal Opera House.

The Indian National Congress Working Committee rejected the Cripp's plan for Indian post-war independence, taking a position for something basically immediate.

Turnabout and fair play. Riding for the brand, working for community, and the Western television political ad.

Here recently, and elsewhere recently, and again coming up once more soon, I've posted on the Western phenomenon of ranching in political ads.

I'll admit that I am not a fan of this genre of ad for a variety of reasons, part of that being, frankly, that I'm cynical.  When ever somebody tells me, as a Wyoming native and whose first ancestor in this region came into the 1860s, well I get crabby about it.

And I really don't like it when locals adopt some slogan introduced by some Wall Street dude or when people who move in here suddenly declare loudly and frequently what it means to be a Wyomingite.  It's one thing if somebody from Nebraska or Montana does that, but unless you are a native of a Rocky Mountain or bordering Plains state. . . you don't know what it means to be a Wyomingite.

Heck, for that matter, people from Platte County and people from Sweetwater County are different, and that's just one example.

Anyhow, in honest short video snippets with a ranching themes, I still think this takes the A+ for honesty.

If there was an ad like that, I'd listen to it.

Anyhow, Wyoming native Harriet Hageman, who does come from a ranching family, has this recent Wyoming ranching setting television ad.

I'm not going to comment on the political positions themselves, but rather on the back theme to this.

As far as anyone can really tell, there's no real difference between the politics of Hageman and Congressman Cheney.  As one recent local politician and former primary opponent of Cheney stated, Ms. Hageman's complaint about Ms. Cheney is that Ms. Cheney doesn't love Donald Trump enough.

That'd be reducing the dispute between them to an over simplistic level, but there's something to it.  As far as politics go, there really isn't any difference between them, or at least not an obvious one. What brings this primary dispute up is that Cheney is taking a principled stand for democracy, and the local GOP has bought off on the "stolen election" theme.

I don't know if Ms. Hageman believes the election was stolen, but I sort of doubt it. She's extremely intelligent and probably knows much better. For that matter, she's a former opponent of Trump's.

That gives us an oddity in which Cheney, who never opposed Trump's running in the first place, is facing a candidate who opposed Trump running the first time he did and who called him some choice terms.  So if not loving Trump is a political crime, well I guess they've both committed at some point. 

Now, of course, Hageman is using the "ride for the brand theme", which is scary frankly as it comes pretty close to the old SS phrase. "my honor is loyalty" phrase.  I'm sure nobody, perhaps other than me, has taken it that way.

Loyalty is in fact not honor.  Loyalty must be earned and earned again to be kept. And if your brand is proposing to ride into a neighbor's place and scatter their cattle, you ought not to be riding for them.

For that matter, in the 19th Century, from which that phrase supposedly stems, most career cowhands were riding for themselves.  Top hand took part of their cattle so that they could start their own places.  The brand they were ultimately riding for was the one that they hoped to apply to their own cattle, which may be what Ms. Hageman is really suggesting.

Most hands only worked from the spring through the fall.  They rode for the brand then, and then were let go.  Not an ideal model, really.

Anyhow, she's released the ride the brand video, with lots of cowboy hat wearing relatives, so we know she's an authentic Wyomingite, which she is of course.  Cheney we know is not really from here (the majority of Wyomingites aren't from here either), which bothered me when she first ran, but it's a little late now to complain about that, particularly if the dispute is the degree to which we're loyal to democracy itself.

Indeed, in another irony, when she ran the first time I pointed out to one of her door-to-door boosters, whom I've since learned was pretty high up in the GOP, that she wasn't from here and one of her opponents, whom I was going to vote for in the primary, was, and that person insisted that Cheney was in fact from here, as she attended some part of grade school here.  Given what I know of that person's politics, I'm pretty sure she's now in the anti Cheney camp.

These things are fickle.

Anyhow, down in the big rectangle to the south of us, Colorado, the whole western ranching theme and native them has been turned on its head:

Donovan is the underfunded Colorado Democrat from Vail.  She's a Colorado native, from Vail, something that's also a rarity, and a graduate of Notre Dame.  Her grandfather was in the 10th Mountain Division, which is pretty darned cool.

Her ad takes on Western themes as well, as well as community, which is frankly probably quite a bit more authentic than "ride for the brand.".

Up to our north, Democratic Senator Jon Tester had a series of ads from his campaigns emphasizing that he's a farmer, and he is a farmer.  Not from a farm, but farming.  It's harder to get more authentic than that.  His ads even poked fun at his very old-fashioned crew cut.

The point?  

Well, I don't know that there is one, and then again there is.  Maybe the reader has to ponder that, however, to discern that.

The Enigma of Western Writers.

This post is on Western writers.

By which I mean writers from the West who write about the West.  By the "West", I mean the West of the Mississippi United States in general, and the various regions of the West as well. 

I don't mean writers like Annie Proulx, who move into an area, write something that they set in the area, and then are celebrated by reviewers outside of the area who are completely ignorant on the area in the first place.  Or even ones like Sam Western.

Nothing was western about the originator of Western writing, Owen Wister, who was an East Coaster through and through.

I'm not saying, well not saying completely, that a person has to be born in one area to write knowledgeably about it. There are certainly examples to the contrary.  Cormac McCarthy has notably written about the west of Texas and in the Southern Gothic style, but he's from Rhode Island originally.  Owen Wister, who is sometimes credited with inventing the Western novel (and at the time he wrote The Virginian he was writing about the recent past) was very much an Easterner.  His friend Theodore Roosevelt wrote beautifully about the West of his day, but he was a new Yorker.  Frederic Remington, the legendary illustrator and painter, is not only famous for his Western paintings and illustrations, which dramatically capture an era, but he was a writer as well, writing on the same topics that he depicted in his paintings.   Edward Abbey was from Pennsylvania and didn't experience the West until he was 18 years old.  Thomas Berger who wrote the only really great novel about Indians, Little Big Man, lived on the East Coast his entire life.

President Theodore Roosevelt, who was also a prolific reader and writer.

But I am saying that there's something different about writing on a culture that you are part of and about a region you are from.  I'd even go on to say that its really difficult to do that without being born in an area. Some writers can pull that off, but they are few.  So if you were born and raised in New England, or Zimbabwe, two actual examples for recent "Western writers", you can probably credibly pull off novels about the shipping news, or not going to the dogs tonight, but your regional novels aren't going to appear authentic to anyone from the region at all, because they are not.

Indeed, could Go Kill A Mockingbird have been written by anyone but a Southerner?  What about anything that Flannery O'Connor wrote. . . would they have been just as impactful if written by a Vermonter?   Would Doctor Zhivago have been what it was if it was written by a New Yorker?  Could Musashi have been written by anyone other than Ejii Yoshikawa?

I doubt it.

Boris Pasternak, who was born in Imperial Russia in 1890 and who died in the Soviet Union in 1960.  His famous work is the novel about the Russian doctor Zhivago, who would have been born right about the same time and and have experienced many of the same things.  Hardly anybody would maintain that a non Russian, let alone a non Russian who hadn't experienced these things, could have written a novel like Doctor Zhivago.

So I'm talking about writers who have spent their youth, even if not perhaps born here, in the real West.  Writers growing up, like Norman Maclean, in Montana, or writers growing up in Wyoming, Idaho, Nebraska, North and South Dakota, New Mexico, and so forth.  And writers, I will credit, from Texas.  Having said all of that, I'd currently exclude writers, for the most part, who may be from any of those regions but whose lives have been spent in the really big cities of the region, like Denver, Dallas or Houston. Big cities are their own thing, and that thing isn't the West.  Modern Denver, and indeed increasingly much of the Front Ranger for hundreds of miles around it, are no more The West than Newark is.  So too with Las Vegas, Phoenix, or any of the giant Texas cities.

Anyhow, some observations.

Western writers, as I've defined them, clearly have a deep, deep, love for the region.  If you read, for example, Norman Maclean's work, he clearly loved Montana.  Indeed, no other writer described the Rocky Mountain West as accurately and deeply as Maclean.  Nobody.

Mari Sandoz clearly loved Nebraska and the plains.  So did Willa Cather.

And what's so notable about that is that they all left the region they loved.

In the film A River Runs Through It and in the novella, Norman Maclean has his brother express the view that he, the brother, will "never leave Montana".  Indeed, Maclean has Paul, his brother, express the view that those who moved from Montana to the West Coast suffered from moral defects, a view a lot of Westerners do in fact have.  But both Paul Maclean and Norman Maclean, in real life, moved to Chicago. At the time that he wrote his works, late in life, Norman Maclean had spent more years in Chicago than in Montana.  He died in Chicago in 1990 at age 87 (his wife, Jessie, had a much shorter life, dying due to respiratory aliments in 1968 at age 63).

Mari Sandoz was born in Nebraska in 1896. She moved to Denver, which at that time remained a Western city, in 1940, at which time she was 44  years old, but then moved to New York City in 1943, where she remained until her death at age 69 in 1966.

Wila Cather, was born in 1873 and her family moved to Nebraska in 1883.  She was steeped in the West from her youth, but she moved to Pittsburgh in 1896, at which time she was an up and coming writer.  She moved to New York in 1905, which is where she remained for the rest of her life.

What's going on here?  It seems that "Western" writers don't achieve success at that unless they've moved to somewhere distinctly non Western.

Maybe some of that has to do with what Garrison Keillor, who is a Western writer (Minnesota and North Dakota are part of the West the way I've defined them) noted about the region in general.  Our number one export is our children.  While we often don't credit it, and we frequently argue about it, the West has both a small population and a good educational system.  We work hard here to educate our youth, but we really don't have anywhere for them to go, as a rule.  That's been noted by outsiders, such as non Westerner, Sam Western (who is in  the non Westerner import class of writer), but they rarely seem to grasp the nature of it.  The West remains the West, where it has, because of natural features which translate into economic ones.  This means that while we really appreciate the need for solid educations, it also means that we educate generation after generation of Westerners who have no place to go with their educations. So they go elsewhere.

That seems to me to be the story for Maclean and Cather.  Norman Maclean obtained a degree in English from Dartmouth in 1924. What use would that have been in the Montana of 1924, or for that matter in the Montana of 2019?  It'd be limited, at best.  He clearly retained his affection for Montana and spoke of himself, from his actual home in Chicago, as a Montanan in his writings.  He married a woman from Montana in 1931, showing the extent to which he retained actual roots there. But he lived and died in Chicago.

The situation for Cather was likely even more pronounced.  An educated woman in the West in the 1890s, her career options were necessarily  highly limited.  Indeed, they were limited in the Western world in general. She never married, something very unusual for her era, and focused on her writing career, but that would fairly obviously be a lot easier to do from New York than from Nebraska.

Sandoz doesn't quite fit this mold, but maybe she provides another example.  Sandoz was a difficult character from her youth on but first found herself published while living in Nebraska, having relocated to Lincoln from the Sand Hills. She's struggled up to that point to establish herself as a writer, but when she did, it was with two novels both of which met with gigantic disapproval in Nebraska.  So she moved to Denver, and then on to New York.

And perhaps Michael Punke gives us another example.  Punke is the author of The Revenant.  Punke was born in Torrington Wyoming.  He's a practicing lawyer, as well as an author (and therefore obviously a much more disciplined person than myself), but he has worked nearly exclusively outside of the West, both inside of and outside of government.

And maybe Punke's example brings home that this phenomenon is widespread with Westerners in general.  At what point you cease to be a Westerner by leaving a region can be debated.  I think it that does happen, and am one of the many who disregard lamentations published in the letters to the editor section of the newspapers that start off with "I read the article about so and so last week, and while I left Wyoming forty years ago. . . .". 

But it's clear that people who were largely raised in a region conceive of themselves, quite often, as remaining part of it their entire lives.  Which I suppose makes sense.  Wendell Berry has lamented that modern American life means that people don't become "of" a place, but maybe they do more than we might imagine (which is another reason that novelist from Zimbabwe or Vermont don't become regional authors by moving here).  Beyond that, however, what we see with writers may be nothing more than what we see with legions of Westerners.

For a long time, at least for rural Westerners, which is a definition that would fit many in the West, growing up and getting an education has meant either narrowing the scope of your education or leaving.  I.e., if you are educated as a lawyer, doctor, veterinarian, school teacher, accountant, or engineer, you can find work here.  But if you have a PhD in English, you probably better be looking elsewhere.

Indeed, even with these other professions, as time marches on, this is becoming more and more true.  In 1990, at the time I graduated from the University of Wyoming's law school, it was already the case that maybe 1/3d of the class was headed to Colorado.  In some recent years over half the class has, as changes in the nature of practice have made that necessary.  Indeed, with the passage of the UBE, there's really no longer a reason for a Wyoming law school at all, and its only a matter of time until the legislature realizes that.

For some this is compounded with the American ethos of money meaning everything.  There are areas of various professions you can find work in the state, to be sure, but it won't pay the same lucrative amount that it might elsewhere.  So people move for the money.  Interestingly, they often find themselves in personal conflict after that, and are often among those writing to the editor with letters such as; "I'm distressed to read that such and so is going in near my beloved home town of Little Big Horn. . . I want it to be just like it was when I left in 1959 and I'm planning to return soon from the hideous dump of Los Angeles where I've been piling up cash since the early 1960s . . ." 

So, maybe it's the nature of the regional economy, and perhaps the national economy at that.  Writers gravitate to where the writers are, and the writers, by and large, are in the big cities.

Not all of them of course, but a lot of them.

Maybe.

Maybe something else is also at work, and perhaps that's most notable in what we noted above about Mari Sandoz. She didn't leave Nebraska for more futile publishing grounds.  She left Nebraska as she was taking a lot of heat after getting published.  Indeed, her second novel was censored in the state.

So maybe its the classic example of a person not really being too welcome on their own home ground in some instances.

In fairness, Sandoz's writing was always very critical of various things, and indeed quite frankly her histories, for which she remains famous, aren't terribly accurate in various ways.  At least her histories haven't born the test of time except, perhaps, for Old Jules, the book her extraordinarily difficult father asked her to write about him after his passing.  But still, maybe the West doesn't welcome its own writers much?

Or maybe it does.  Novelist Jim Harrison, who was from Michigan, which is pretty rural in some locations and the near west to a degree, lived in Arizona and Montana after leaving Michigan.  Garrison Keillor, mentioned above, flirted with New York after already being well known, but returned to Minnesota.  Patrick McManus, the humor writer, lived in the West his entire life.  Current crime writer C. J. Box, whose protagonist is a Wyoming Game Warden, is from Wyoming.  Tim Sandlin, whom I've never read, was born in Oklahoma but lives in Jackson.

Indeed, if Oklahoma is sort of like Texas in some ways, it's worth noting that Texas has had a lot of native authors who have continued to live in Texas, Larry McMurtry notable among them.  McMurtry grew up on a ranch outside of Archer, Texas, a town so far north in Texas its nearly in Oklahoma.

So added to that, maybe these long distance travels aren't as far as they seem. . . in some instances.  In my grandfather's era Chicago was the hub of the western cattle industry and Denver just a very large city on the plains.  Chicago's role in that went away, but the point is that economists and politicians who are baffled by the fact that the West doesn't spawn very many large cities are potentially missing the point that it has. . . its just that everything is more spread out here.  So Chicago, a Midwestern city, may have more of a link to the West of an earlier era than we might suppose.  Denver serves that purpose for much of the Northern Plains now and, I dare say, Calgary does as well at a certain point.

Indeed, those cities filled that roles, or fill them, as they were, or are, centers of industry for regions.  And while we don't like to think of writing as an industry, it's a type of one, so perhaps some relocation makes sense.  Indeed, it might even now, in spite of the electronic age, which seems to be pulling the working population towards the city centers like a black hole draws in light.

Anyhow, something to ponder.

Lex Anteinternet: A Potential Wildlife Management Disaster or A Redefinition of "Unoccupied". Where forward from here.

I just posted this item:

Lex Anteinternet: A Potential Wildlife Management Disaster or A Rede...: That's what the United States Supreme Court's decision in Herrera v. Wyoming stands to be. Or at least it certainly has th...

It was one of those that took me quite awhile to draft and then more time to edit.  Not that the topic is old.

Anyway a person looks at this, it's going to have to be addressed. The Wyoming Game & Fish, and frankly the wildlife agencies of the United States, Montana, Wyoming, the Dakotas, Utah, Colorado and Idaho. . .and others are all going to be dealing with it this fall.

The Governor has appropriately reacted, particularly as the decision actually leaves a door wide open towards further defining "unoccupied".  Indeed, if this gets back up to the Supreme Court, and that's a big "if", my suspicion is that unoccupied will be defined to mean not lands that are not leased for use and are withdrawn from occupation.

Those lands are:

• Wilderness areas, maybe (quite a few of those actually have leases on the).
• Lands withdrawn under the Antiquities Act
• Parks

My suspicion is that the Federal Government, in a self serving manner, will oddly find that Parks are occupied.

I frankly have no problem at all with hunting in the National Parks, and I think it ought to be allowed.  Game is excessively plentiful in Yellowstone and I'd support allowing Native Americans to hunt in a regulated fashion in the Parks.  I know that this voice is solely a local one, and most people in the U.S. would find that horrifying.  But truth be known, the human natural element is the one thing missing from the Yellowstone ecosystem now.   I'd close the park in late September and open it to Native hunting through late November, in a regulated permitted fashion.

That's not going to happen, irrespective of the Supreme Court decision.

My second suspicion is that the Court will also say that the state may regulate hunting for conservation, and that means regulate it, but that Native Americans will have to be taken into account for permits.  I think there's a very high likelihood of that. 

That may all have to be worked out in the Courts, which the Governor's letter, which we'll now set out below, takes into account.  I'll come back with commentary below that:

The governor was correct in his comments.  But what might those "solutions for all those who hunt" (which includes Governor Gordon) be?

I think there might be some, and I'd suggest they consider them now.

My view is that the state ought to reach out to the native populations who had a historical presence in the state, which would include the Shoshone, Arapaho, Sioux, Cheyenne and Crow and work towards a solution.  What I see that solution being is as follows.

A number of licenses, on a draw basis, needs to be set aside for Native American hunters.  It doesn't, I don't think, have to be wholly unregulated.  Essentially, therefore, they'd be a new classification of hunter.

Or an old one, if you prefer to view it that way.

That classification should buy licenses at the same price as in state hunters.  Indeed, some will be instate hunters.

Those numbers, whatever they prove to be, should displace out of state licenses.

The net effect of that would be to allow the impact of the decision to be taken into account.  Moreover, it could be done in an efficient manner that doesn't actually need to restrict anyone to just Federal lands for hunting, plenty of that those there is.

And it would help address the slow evolution towards head hunting.

I've addressed that here before, but that's an evolution that operates against hunting and hunters.  Most hunters don't have anything against people preserving a trophy from a hunt, but making it the main focus is another matter entirely.  Indeed, in recent years there's been a really negative trend towards "donating meat" which I feel leads in an entirely wrong direction and shouldn't be tolerated.  

Conversely, most people support hunting for the table, and that's what hunting around here was for locals forever. This might serve to refocus that a bit, which would be a good thing.  

Indeed, awhile back I posted something on subsistence licenses, and this sort of heads in that direction.

Now, of course, while this plays out legally this is unlikely to occur.  But I think the state ought to start looking at it. And if they can get to this point either with the cooperation of the Tribes, or perhaps without them, I think they should.  They might have to.

What's the deal with Ryan Zinke?

The Trump Administration has become such a revolving door that I've really lost track of what's going on with it.  People come and go, are hired and fired, with such rapidity that a person would have to be a political fan in the extreme, right or left, to keep up with it.

Secretary of the Interior is one of the posts that I watch, however, as the positions taken by the occupant of that office really matter to me. . . and not just because I live in the West or in a mineral producing state.  Having a Leopoldian view of the world, what goes on in that office is something I follow, usually, and policy wise.

So, I've tried to watch Zinke a bit, although it hasn't really been easy.  I was glad that he was a hunter and from the West, as that was encouraging.  Since then, however, like nearly every occupant of the Trump Administration, picking up unbiased news has been pretty much impossible, so it's been really hard to know what his policies on any one thing really are. A couple of days ago, after the news about Zinke resigning hit the press, I read an article about him in the Ducks Unlimited magazine that, from a conservationist and hunting prospective, could not help but be heartening.  Others felt that in spite of his outdoors credentials he was a wolf in sheep's clothing and was at least partially responsible for a retreat of protection of Federal lands.  One of the most unique critiques of him I I saw was in the Washington Post, were somebody commented:

“He rode into D.C. on a horse in an English saddle,” Tawney said, adding that a true Westerner, as the secretary claims to be, would’ve chosen a Western saddle. “That just kind of shows there’s a disconnect in how he likes to see himself. He doesn’t practice what he preaches.”

Well, as the reporting on individual members of the Trump Administration has become so polarized, I still don't know what to think. 

I do know that the Department of the Interior has been plagued with impropriety for quite some time.  During the Obama Administration news broke of some conduct (which I'm certainly not attributing to Obama) that had BLM employees acting more like courtiers in the Caligula's anterooms than employees of a Federal agency.

The specific allegations against Zinke have to do with dealings with Halliburton in his home state of Montana that predate his role as Secretary of the Interior, and that's part of the reason that I'm not terribly impressed with allegations against him, irrespective of whether or not he has been a good or bad Secretary of the Interior.  Looking for a Western politician who hasn't had dealings with the oil and gas industry is a lot like looking for a Midwestern politician who hasn't had dealings with Big Ag, or a New York politician who isn't fundamentally irritating to non New Yorkers at an existential level.  Nearly impossible.  And in recent years, dating back at least to the Clinton Administration, there's been a disturbing tread of criminalizing what is simply normal behavior, and political advantage.  The whole "insider trading" set of laws, for example, basically criminalizes knowledge.

So now I'm more than a little worried about his replacement, whomever that will be.

Indeed, at this point, I don't know why anyone takes a job in the Trump Administration.  The revolving door quality of things would mean that you have to suspect that if you took one of those jobs that you're going to be packing up in disgrace shortly thereafter.  Or you're going to resign as you're mad.  I can't see why a person would endure it.

Well, somebody will.  And given the way things are going I hope that whoever takes up that role is not hostile to public lands.

FWIW, Cynthia Lumis has been mentioned.  She's very sharp, which leads me to suspect she won't take the job.

Leavin' Cheyenne. (For Friday Farming, an actual "Western" song. . . not that honky pop stuff)

Lex Anteinternet: And then the shoe dropped. (But not when thought). Ryan Zinke nominated to the Interior

Just recently I reported on Cathy McMorris Rodgers being nominated, in anticipation style, to be Secretary of the Interior by President Elect Donald Trump:

Lex Anteinternet: And then the shoe dropped.: Yesterday I published this item: Lex Anteinternet: Whining, crying, panic in the editorial room of th... : Following the flood of analys...

I don't know what happened, but in the end, she wasn't.

When the announcement was made it turned out to be Montana Congressman Ryan Zinke.

And I think that's a good thing.

I know very little about Zinke, but I do know that the Republican Montanan is opposed to the transfer of Federal lands, which was something that was much less certain about Rodgers.  And I also know that as he comes from Montana, he'll be familiar with the situation and conditions down here in Wyoming, which are very similar.  Moreover the former Navy SEAL is a lifelong hunter and fisherman.  He's drawn some initial praise from sporting quarters.

A good turn of events.  In some ways, I feel like we may have dodged a bit of  a bullet on this one.

Tribal Court Jurisdiction

 Delivered at the Wyoming State Bar Convention, September 2010.

And just published here as a separate page.  Most of the rest of the separate pages here originally were articles on the blog, so I'll publish this one here as well.

 Note, this is out of date.  I wouldn't rely on it anymore, if I ever would have.  Law evolves, and since 2010, it's sure evolved in Wyoming on this.  We even have a new Wyoming Supreme Court opinion addressing this topic, which is really phenominal.

Tribal Court Civil Jurisdiction

            Most practicing attorneys in Wyoming think of there being two complimentary court systems offering civil jurisdiction over civil litigation.  The courts most frequently resorted to for civil cases are Wyoming’s State Courts, divided, as we all know into State District Courts and Circuit Courts.  In addition we have the Federal Courts, in instances of diversity of citizenship or in instances in which the Federal government has provided for original jurisdiction.

            In addition to this, however, there is a third court system, that of the Wind River Indian Reservation.  Determining the presence or absence of Tribal Court jurisdiction involves a somewhat unique set of questions, and the procedure for determining the presence or absence of Tribal Court jurisdiction differs from the same consideration in other courts.

            A.  The origin of Tribal Court Jurisdiction.

            While the long history of European American expansion into Indian lands and the resulting conflict is well known and well studied, providing a reader with everything from scholarly treatises to cheap novels, the resulting legal history of the same historical episode is rarely serious addressed in popular histories.  According to at least some, there are more books on George Armstrong Custer on the Western Frontier than there are about any other character in American history, and books on the history of the Indian Wars continue to be written and read.  In the last few years, popular histories have been published on everything from King Philips War[1], to the Indian Wars of the American Southwest[2], to yet another book on the Battle of the Little Big Horn[3].  And yet a person would have a difficult time finding any common text dealing with the legal aspects of the United State’s relationship with the country’s native peoples.  This is a significant omission in the story as there was never a moment in that story during which the United States was not operating under a theory of a legal relationship to the native peoples.

The history of tribal jurisdiction is an instructive and illuminating aspect of that story. After the American Revolution, the various states at least theoretically held all governmental power.[4]  By virtue of the Constitutional Convention of 1787 that power was temporarily held by Congress until the ratification of the Constitution, and exercised by the representatives empowered by the States for drafting the Constitution.  The Constitution permanently set out how power within the federal system would be held, setting out for Congress certain powers superior to all other sovereigns, including exclusive jurisdiction for certain legal actions.  Through the Ninth, Tenth, and Eleventh Amendments to the United States Constitution, first proposed in 1789 and adopted in 1791, the Federal Government limited its own powers, including judicial powers, and reserved all remaining powers alternatively to the States and to the people.  U.S. Const. Amend. IX, X and XI. 

The Federal government, initially by way of the Constitution, and subsequently through statutory enactments, reserved unto itself all rights to deal with Indian tribes and deprived the states of the ability to do so without its express consent.  U.S. Const. Art. I, Sec. VIII, Cl. 3; Art. II, Sec. II, Cl. 2.  This recognized a series of lesser and greater sovereigns and political entities, with the United States essentially recognizing that the Indian Tribes were sovereigns holding that sovereignty to the extent that the United States chose not to extinguish it.  This sovereignty was conceived of as less than that of the Federal government’s, but separate from that of the individual states in which the tribes were located.  This is the system that essentially remains today.  Each sovereign and political entity is free to accept or limit its powers, including jurisdictional powers, but only up to limits of the power recognized by the superior sovereign, that being the United States.  See Cherokee Nation vs. Georgia, 30 US  (5 PET) 1 (1831) and Worcester vs. Georgia, 31 US (6 PET) 515 (1832).  In the case of States, the States can and do confer jurisdiction upon lesser municipal corporations and other political entities.  Therefore, counties and municipalities may operate up to the limit of that power and jurisdiction referred to them by the State, including conveying jurisdiction to Courts that may operate within these political entities.  However, the political entities are not free to confer any jurisdiction to them beyond that which is already conveyed to them by the State.

            Tribal Courts are faced with a similar limitation upon their jurisdiction, except that the grant of their jurisdictional powers has essentially come through Congress, and Federal law likewise sets the limits upon their jurisdictional powers.  Congress declared the Federal government to have all existing power and rights in dealing with the Indian tribes.  Over a course of well over a century, the United States granted to the tribes various powers that it had earlier deprived them of, including jurisdiction to hear certain disputes.  Presently, the United States still requires that disputes heard in Tribal Courts, with certain distinct and clear exceptions, must involve at least one tribal member. 

B.     The Wind River Indian Reservation.

While the law pertaining to the presence or absence of Tribal Court jurisdiction is general in nature, and is generally applicable to any situation involving a question concerning the civil jurisdiction of an Indian Tribe, in the Wyoming context such questions only pertain to the Wind River Indian Reservation for the obvious reason that the Wind River Indian Reservation is Wyoming’s only Indian Reservation.

The Reservation includes approximately 2.2 million acres of land, approximately twice the size of the State of Rhode Island.  The Reservation was originally created in 1868, following the 1863 Treaty of Ft. Bridger, for the Eastern Shoshone tribe under the leadership of Chief Washakie.  The Reservation came to permanently include the Northern Arapaho tribe in 1878 but in a manner that did not take into account the existing treaties with the Eastern Shoshone Tribe.[5]  Each tribe elects its own Business Council, which when jointly assembled forms the legislative body of the Reservation as the Joint Business Council.  The seat of government, including the Tribal Court, is located at Ft. Washakie, which is just north of Lander.  The Joint Business Council has enacted a Law & Order Code, which is available on-line at http://shoshone-arapahotribalcourt.com/[6].  The Law & Order Code includes the complete set of laws jointly enacted by the Tribes, including the appellate rules of the court and the rules of civil procedure.[7]  A separate code, however, has been enacted by at least the Northern Arapaho Tribe, on some topics.[8]  Significantly in terms of civil litigation, the Wind River Reservation has retained joint and several liability, which provides a significant concern in terms of strategy for both plaintiffs and defendants in civil litigation.[9]

In this discussion it may always be presumed that references to Tribal Court, while general in nature, have Wyoming’s locality in mind, and therefore are written in the context of the Wind River Indian Reservation being the state’s only Indian Reservation.

C.    The Wind River Indian Reservation Court.

The Wind River Indian Reservation Court is unique in some ways in that it is the only court in Wyoming that generally hears all types of cases, except where precluded from hearing them by Federal law.  This means that the Court hears civil and criminal cases as well as certain types of domestic cases.  In the civil context, the Court hears everything from cases that would be in the general area of a Small Claims cases in State Circuit Court, up to cases that have the highest level of damages.  The Court’s criminal jurisdiction is not as broad, however, due to Federal provisions on the same.  The Code provision establishing the Court is found at Section 1-3-1 of the Law & Order Code.

Section 1-3-1 Courts Established

(1) There is hereby established a Shoshone and Arapaho Tribal Court to handle all matters of a judicial nature within the jurisdiction of the Shoshone and Arapaho Tribes as provided in this Code. It shall be a court of general civil and criminal jurisdiction and shall hear appeals from administrative bodies of the Shoshone and Arapaho Tribes. It shall consist of one

(1) chief judge and three (3) associate judges. Each tribe may appoint two (2) as mutually agreeable.

(2) There is hereby established a Shoshone and Arapaho Tribal Appellate Court to handle all appeals from the Children*s and Tribal Courts. It shall consist of three (3) judges.

(3) There is hereby established a Shoshone and Arapaho Tribal Children’s Court to handle all matters set forth in the Children and Juvenile Code contained in this Law and Order Code.

(4) There is hereby established a Shoshone and Arapaho Tribal Probate Court which shall have exclusive original jurisdiction of all matters relating to the probate and contest of wills and testaments and of administration, and the settlement and distribution of decedent’s estates of all property on the reservation.

(5) Each court will function as a court of record.

            The Wind River Indian Reservation Tribal Court may be somewhat unique as a tribal court in that it serves two separate Federally recognized Indian tribes.  The norm would be for a Court to serve a single tribe, but then the norm also is for a reservation to be dedicated to a single tribe.

            Civil trials may be to a jury of six.  The jury is generally empanelled from residents living within the Reservation without regard to Tribal enrollment.

            The Court has an appellate branch that also sits in Ft. Washakie, Wyoming.  The appellate branch of the Court is established in Article 15 of the Law & Order Code.

Section 15-1-1 Creation of the Court

There is hereby created a Court of Appeals of the Wind River Indian Reservation, Wyoming, which shall be part of the Shoshone and Arapaho Tribal Court.

Section 15-1-2 Jurisdiction of the Court

The Court of Appeals shall have exclusive jurisdiction of all appeals from final orders and judgments of all the Shoshone and Arapaho Tribal Courts and shall have original jurisdiction to issue all writs of habeas corpus on the reservation. The court shall have jurisdiction:

(1) To take all steps necessary to preserve and protect the jurisdiction of the court.

(2) During the pendency of any appeal, to release the appellant on his own recognizance or on bail pursuant to Section 15-1-7 (1) of this code.

(3) To make any order appropriate to preserve the status quo or to protect any ultimate judgment of the court.

            Appeals of civil matters are by not by right, but leave of the Court.

D.  Tribal Court Civil Jurisdiction.

i.                    Territorial Jurisdiction.

The Tribal Court’s civil jurisdiction is the exterior boundary of the Wind River Indian Reservation.  The Tribal Code itself recognizes this limitation.  Section 1-2-5 of the Tribal Code provides:

Section 1-2-5 General Subject Matter Jurisdiction Limitations

Subject to any contrary exceptions, or limitations contained in either federal or applicable tribal law, the Wind River Tribal Court shall have general subject matter jurisdiction over all civil causes of action, arising of the reservation and over all offenses prohibited by this code which occur within the exterior boundaries of the Wind River Indian Reservation to adjudicate and determine the rights and responsibilities of all parties.

Section 1-2-2, specifically addressing Territorial Jurisdiction, provides:

Section 1-2-2 Territorial Jurisdiction

(1) The jurisdiction of the Tribal Courts of the Shoshone and Arapaho Tribes shall

extend to the territory within the Wind River Indian Reservation and to such other lands without such boundaries as may have been or may hereafter be added to the reservation or held in trust for the tribes under any law of the United States or otherwise.

(2) The jurisdiction of the Tribal Courts of the Shoshone and Arapaho Tribes shall

extend beyond the territorial limitation set forth above, to effectuate the jurisdictional provisions set forth below, to the greatest extent permissible by law

This seemingly simple topic is somewhat complicated by the fact that the effective boundary of the Wind River Reservation remains in dispute.  This stems from the fact that the external boundaries of the reservation have changed somewhat over time for a variety of reasons, and the residents of the Reservation today do not uniformly recognize the current exterior boundaries as the proper ones.[10]  Given this, it is possible that jurisdictional questions can arise where personal jurisdiction would exist, but territorial jurisdiction may be in dispute.

ii.                  Personal Jurisdiction

A person or party’s relationship to the sovereign determines personal jurisdiction in Tribal Court.  Tribal Court clearly has jurisdiction over civil suits involving at least one member of an enrolled Indian Tribe involving a claim arising within its territorial jurisdiction.  Tribal Court generally lacks, however, jurisdiction over suits arising between those who are not enrolled members of Indian Tribes, even when a party’s claim arises within the exterior boundaries of the Reservation.

The Tribal Court, through the Tribal Code, claims fairly extensive personal jurisdiction, even though the text may place it in conflict with the applicable United States Supreme Court decisions on this topic, which are addressed below.  At any rate, the Tribal Code provides:

Section 1-2-3 Personal Jurisdiction

(1) As used in these jurisdictional provisions the word “person” shall include any individual, firm, company, association, corporation or tribe.

(2) The Tribal Courts of the Shoshone and Arapaho Tribes shall have personal jurisdiction over the following persons:

a) Any person residing, located or present within the reservation for any civil cause of action;

b) Any person who transacts, conducts, or performs any business or activity within the reservation, either in person or by an agent or representative, for any civil cause of action;

c) Any person who owns, uses or possesses any property within the reservation for any civil cause of action;

d) Any person who commits tortious conduct within the reservation, either in person or by an agent or representative, for any civil cause of action arising from such act, conduct or omission; and

e) Any enrolled or non-enrolled member of any indigenous Indian tribe who commits a criminal offense prohibited by this Code or other law of the tribes by his or her conduct or the conduct of another for which they are legally accountable, if:

i) the conduct occurs either wholly or partly within the reservation;

ii) the conduct which occurs outside the reservation constitutes an attempt, solicitation, or conspiracy to commit an offense within the reservation, and an act in furtherance of the attempt or conspiracy occurs within the reservation; or

iii) the conduct which occurs within the reservation constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited by this Code, tribal law or such other jurisdiction.

(3) None of the foregoing bases of jurisdiction is exclusive, and jurisdiction over a person may be established upon any one or more of them as applicable.

Section 1-2-4 Jurisdiction Over Property

Subject to any contrary provisions, exceptions, or limitations contained in either federal laws and regulations, the Courts of the Shoshone and Arapaho Tribal Court shall have jurisdiction over any real or personal property located on the reservation to determine the ownership thereof or rights therein or to determine the application of such property to the satisfaction of a claim for which the owner of the property may be liable.

* * *

Section 1-2-6 Concurrent Jurisdiction

The jurisdiction invoked by this Code over any person, cause of action, or subject shall be concurrent with any valid jurisdiction over the same of the courts of the United States, any state, or any subdivision thereof; provided, however, this Code does not recognize, grant, or cede jurisdiction to any other governmental entity in which jurisdiction does not otherwise exist in law.

Section 1-2-7 Exclusive Original Jurisdiction

(1) The Shoshone and Arapaho Tribal Court shall have exclusive original jurisdiction in all matters in which the Shoshone and Arapaho Tribes or their officers, employees, or agents are parties in their official capacity.

(2) Nothing in this code shall be construed as a waiver of sovereign immunity of the tribes, their employees, officer and agents unless specifically denominated as such.

Tribal Court Jurisdiction over non-enrolled litigants.

Tribal court jurisdiction over non-members is governed by the principles set forth in Montana v. United States, 450 U.S. 544 (1981). See Plains Commerce Bank v. Long Family Land and Cattle Co., reaffirming the holding of Montana v. United States as controlling. In Montana, the Court held:

These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations.  But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type.  They involve only the relations among members of the tribe.  Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status.  (Emphasis added).

Thus, in addition to the powers to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations amongst members, and to prescribe rules of inheritance for members . . . But exercise of tribal powers beyond what is necessary to protect tribal self government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.

Montana v. United States, 450 U.S. at 564 (emphasis in original), citing United States v. Wheeler, 435 U.S. 313  (1978), Mesclaero Apache Tribe v. Jones, 411 U.S. 145 (1973), Williams v. Lee, 358 U.S. 217 (1959), U.S. v. Katma, 118 U.S. 375 (1886) and McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973). 

The Court, in Montana, further stated:

To be sure, Indian tribes retain inherent sovereign powers to exercise some forms of civil jurisdiction over non-Indians on the reservation, even on non-Indian fee lands.  A tribe may regulate, through taxation, licensing, or other means, the activities of non-members who enter consensual relationships with the tribe or its members, due to commercial dealing, contracts, leases, or other arrangements . . . A tribe may also attain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or health or welfare of the tribe.”

Montana, 450 U.S. at 565-566, citing Williams v. Lee, 358 U.S. 217 (1959), Morris v. Hitchcock, 194 U.S. 384 (1904), Buster v. Wright 135 F 947 (8^th Cir. 1905), Washington v. Confederated Tribes of Coleville Indian Reservation, 447 U.S. 134 (1980), Fisher v. District Court, 424 U.S. 382 (1976), Montana Catholic Missions v. Missoula County, 200 U.S. 118 (1906), Thomas v. Day, 169 U.S. 264 (1898) and Arizona v. California, 373 U.S. 546 (1963).

 Montana provides that there is no Tribal Court jurisdiction in suits between non-Indians except in two distinct exceptional instances.  Montana notes, “…that the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members of the tribe”.  Montana supra. at 565.  As noted in a post Montana decision:

Where non-members are concerned, the ‘exercise of tribal power beyond what is necessary to protect tribal self government or to control internal relations is inconsistent with the dependant status of tribes and, so cannot survive without express congressional delegation’. 

Nevada v. Hicks, 533 U.S. 353 (2001) (emphasis in original). 

Montana provides two exceptions under which tribes may exercise "civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands," 450 U.S., at 565, 101 S.Ct. 1245: (1) "A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements," ibid.; and (2) a tribe may exercise "civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," id., at 566, 101 S.Ct. 1245.

Plains Commerce Bank v. Long Family Land and Cattle Co, id (emphasis in original).  See also Strate v. A1 Contractors, 320 U.S. 438, 446 (1997). 

            The United States Supreme Court has since built upon the Montana decision to make clear that: 

Where non-members are concerned, the ‘exercise of tribal power beyond what is necessary to protect tribal self government or to control internal relations is inconsistent with the dependant status of tribes and, so cannot survive without express congressional delegation’. 

Nevada v. Hicks, 533 U.S. 353 (2001) (emphasis in original). 

The Court affirmatively stated that Indian tribes generally, “…lack civil authority over the conduct of non-members on non-Indian land within a reservation...” except where the non-members entered into a consensual relationship with the tribe or its members sufficient to justify vesting the tribe with civil authority over the non-members conduct or a tribe seeks to exert civil authority over activity that directly effects the tribe’s political integrity, economic security, health, or welfare.  Strate v. A1 Contractors, 320 U.S. 438, 446 (1997).  The Court further determined that, “The ownership status of land…is only one factor to consider in determining whether regulation of the activities of non-members is ‘necessary to protect tribal self government or to control internal relations’”.  Nevada v. Hicks, supra.  The mere existence of tribal ownership of land, in and of itself, is insufficient to support regulatory jurisdiction over non-members.  Hicks, supra. 

Summary of Tribal Court Civil Jurisdiction

Tribal Court’s, including the Wind River Indian Reservation, are free to assert civil jurisdiction up to the limits imposed upon them Congress.  As defined by the United States Supreme Court, this means that:

1.  Tribal Courts have civil jurisdiction in suits involving at least one enrolled tribal member that arise within the territorial confines of the jurisdiction.

2.  Tribal Court’s lack jurisdiction in suits in which there are no enrolled members except where:

a.  "A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements; and

b.  A tribe may exercise "civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,".   This impact must be substantial in nature.

E.      Challenging Tribal Court Jurisdiction.

As Tribal Courts exist by way of Congressional authority, it is possible to challenge the presence of Tribal Court jurisdiction in Federal Court in a declaratory judgment action, but a party must first consider comity concerns as expressed by the Federal Courts. Generally, while there has been erosion of the doctrine in recent years, it is the case that a party must challenge the presence of Tribal Court jurisdiction in Tribal Court prior to challenging jurisdiction in Federal Court.

a.      Challenging jurisdiction in Tribal Court.

A challenge to Tribal Court jurisdiction in Tribal Court is by simple motion practice.  Motions to dismiss in Tribal Court are conventionally presented and a challenge to jurisdiction only requires a motion and a brief.  The Tribal Court generally always schedules an oral argument on motions of this type.

b.      Directly challenging Tribal Court jurisdiction in Federal Court.

As noted above, a long series of cases generally hold that a party must exhaust his or her remedies prior to presenting a jurisdictional question to Federal Court.  This is not universally the case, however, and has recently been addressed by Federal Judge Johnson in McDonald’s v. Crazy Thunder Case No. 06-CV 180J;

Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement must give way, for it would serve no purpose other than delay.

Strate v. A1 Contractors, 520 U.S. at 459 n. 14 as quoted by the Honorable Alan B. Johnson in McDonald’s v. Crazy Thunder Case No. 06-CV 180J (emphasis added).

            The extension of comity and “abstention” are discretionary acts. “The doctrine is one of discretion rather than jurisdiction”.  Rocky Mountain Oil and Gas Association v. Watt, 696 F.2d. 734 (10^th Cir. 1982).  The Court, therefore, has some leeway in considering jurisdictional challenges, although they remain difficult due to the Federal District Court’s natural desire to allow the Tribal Court to consider the question first.

            Having said that, the Federal District Court, in McDonald’s Corporation v. Irene Crazythunder, Case No. 06CV-180J an exhaustive opinion, made it clear that exhaustion is not required in all circumstances:

In the past this Court has applied the “colorable claim” standard in tribal exhaustion cases. See Farmers Ins. Exchange v. Alison Sage, Jr., D. Wyo. Case No. 02-CV-94-J (stating that “where a colorable claim of jurisdiction in the tribal court exists, exhaustion should be required and the federal court should defer to the tribal court.”) The “colorable claim of tribal jurisdiction” has been applied in other circuits. See Bank One, N.A. v. Lewis, 144 F. Supp.2d 640, 644 (5^th Cir. 2001); see also Smith v. Salish Kootenai College, 434 F.3d 1127, 1131 n.1 (9th Cir. 2006) (quoting Stock West Corp. v. Taylor, 964 F.2d 912, 919 (9^th Cir. 1992)) (stating that, “ordinarily, so long as there is a ‘colorable question’ whether a tribal court has subject matter jurisdiction, federal courts will stay or dismiss an action in federal court ‘to permit a tribal court to determine in the first instance whether it has the power to exercise subject matter jurisdiction in a civil dispute between Indians and non-Indians that arises on an Indian reservation.’”); see also Stock West Corp. v. Taylor, 964 F.2d 912, 919 (9^th Cir. 1992) (explaining that “by colorable we mean that on the record before us, the assertion of tribal court jurisdiction is plausible and appears to have a valid or genuine basis.”)

See McDonald’s v. Crazy Thunder opinion attached to submission.  Judge Johnson went on to note that:

There are four exceptions to the exhaustion requirement. First, the rule does not apply where an assertion of tribal court jurisdiction is motivated by harassment or made in bad faith. Second, the tribal court exhaustion rule is inapplicable when the tribal court action violates express jurisdictional prohibitions. Third, the tribal court exhaustion rule does not apply if exhaustion would be futile due to an inadequate opportunity to challenge the tribal court’s jurisdiction. See Nat’l Farmers Union, 471 U.S. at 857 n. 21. Fourth, the tribal court exhaustion rule does not apply “when . . . it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by . . . [the] main rule [outlined in Montana v. United States] so the exhaustion requirement would serve no purpose other than delay.” Nevada v. Hicks, 533 U.S. 353, 369 (2001) (quoting Strate v. A-1 Contractors, 520 U.S. 438, 446 (1997)).

The Tenth Circuit Court of Appeals explained that if “none of the National Farmers exceptions is present, the court must then make an inquiry whether to abstain based on [comity] concerns. So long as the policies behind the tribal exhaustion rule are served by its application, ‘comity requires the parties to exhaust their tribal remedies before presenting their dispute to the district court.’” Kerr-McGee, 115 F.3d at 1507 (quoting Texaco, Inc. v. Zah, 5 F.3d 1374,1378 (10th Cir. 1993)). A court must analyze whether it should apply the tribal exhaustion rule “based on comity concerns for Indian tribes in maintaining their remaining sovereignty.” Kerr-McGee, 115 F.3d at 1507. Three specific comity concerns are advanced by proper application of the rule: (1) furthering congressional policy of supporting tribal self-government; (2) promoting the orderly administration of justice by allowing a full record to be developed in the tribal court; and (3) obtaining the benefit of tribal expertise if further review becomes necessary. Petrogulf Corp. v. Arco Oil & Gas Co., 92 F. Supp.2d, 1111, 1113 (D. Colo. 2000) (citing Kerr-McGee, 115 F.3d at 1507)).

See McDonald’s v. Crazy Thunder opinion attached to submission.

            In McDonald’s v. Crazy Thunder, the Plaintiff’s challenging Tribal Court jurisdiction claimed that all four of the exceptions were applicable, while the Defendants asserted that none of them were.  Judge Johnson examined the exceptions in great depth.  He found that one of the exceptions was indeed applicable. Judge Johnson noted that the United States Supreme Court held:

When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana’s main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct . . . Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement must give way, for it would serve no purpose other than delay.

Strate, id.

c.       A note about jurisdictional challenges.

Jurisdictional challenges can present a difficult topic for any court involving complicated issues of law, facts and even policy. This is particularly true in regards to the issues faced by the Tribal Courts and the Federal Courts in this context.

To start with, the Federal Court sits in this context as a court of original jurisdiction, not as an appellate court, as to the issue of Tribal Court jurisdiction. There exists no way in which to appeal a Tribal Court decision to a Federal Court.  Nor is it possible to remove a Tribal Court case to Federal Court, unlike the situation involving removal of a State Court case to a Federal Court.  The general Federal policy is to recognize comity concerns and allow the Tribal Court to act first.  The Federal Court can then be asked to consider the jurisdictional question as an original question, rather than as a court offering an appellate review.

This means that frequently the jurisdictional questions are never decided, in this dual system, with what must be regarded as finality.  The Tribal Court, of course, does rule with finality within its system, but an early Federal decision, no matter how much it might comment on jurisdictional questions, does not decide the jurisdictional issue if it allows the Tribal Court case to proceed due to comity concerns. This is well demonstrated by a case involving two panel members here today, Corey Johnson v. Marathon Oil Co., in which the early Federal decision actually only went to comity, and allowed the Tribal Court case to proceed to trial, and then to Tribal Court appellate review.  Subsequently, in the second Marathon Oil Co. v Johnson case the Federal Court was asked to determine the question of jurisdiction, the Tribal Court remedies having been exhausted, but it never was able to enter an opinion, as the case settled before the jurisdictional question could be determined.  Therefore, in the United States District Court for Wyoming, there are very few cases that have actually addressed issues of Tribal Court jurisdiction.

---

[1] King Philip’s War, 1675-1676 was a major New England Indian War and one of the first to rise to the level of a full scale protracted war.  It has recently been the topic of Nathanial Philbrick’s book Mayflower, published in 2006.

[2] The general history of the American Southwest in the American Frontier period in Hampton Side’s 2007 book Blood and Thunder.

[3] Nathanial Philbrick, having written on King Philip’s War, has now authored a just released book dealing with the Battle of the Little Big Horn, George Custer and Sitting Bull.

[4] To a degree, the dispute even had a pre Revolution origin, as the Crown’s attempt to restrict migration to lands west of the Appalachians, which was based on its assertions of ownership of that land, was regarded as one of the “Intolerable Acts” given rise to the Declaration of Independence by the Continental Congress.

[5] This would result in compensation to the Eastern Shoshone tribe in 1937.

[6] This is the website of the Wind River Indian Reservation Tribal Court.

[7] http://shoshone-arapahotribalcourt.com/images/Title_II_SALOC-11-04.pdf

[8] The Northern Arapahoe Code may be found at http://www.northernarapaho.com/tribal_code.

[9] Law & Order Code Section 14-1-2.  Contribution is addressed at Law & Order Code Section 14-1-3.

[10] This relates in part to a disagreement on the validity of grants of Reservation territory back to the United States.