Comment
15 May 2026
One of the nation's oldest law reviews focused on public lands, natural resources, and Indian law, the Public Land & Resources Law Review is student-edited and based at the University of Montana's Alexander Blewett III School of Law.
Our publications, online journal, and signature events — including the biennial Public Land Law Conference and Jestrab Lecture on Water — connect students, scholars, and practitioners around the legal issues shaping the American West and beyond.
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Volume 48, Issue 2 (2025)View issue
Featured Content
- Comment15 May 2026
Unleashing Consultation: Tohono O’odham Nation v. Department of Interior and the Case for Reforming the National Historic Preservation Act
The Ninth Circuit’s 2025 decision in Tohono O’odham Nation v. Department of Interior highlights an ongoing failure by federal land management agencies to consult meaningfully with tribal nations as mandated by the 1966 National Historic Preservation Act. This article argues that the NHPA’s framework for tribal consultation enables federal land management agencies to sidestep meaningful engagement with tribes, undermining both cultural resource protection and the federal Indian trust responsibility. To address these deficiencies—particularly in the context of renewable energy development on federal public lands, directly at issue in Tohono O’odham Nation—this article proposes amendments to the NHPA informed by tribal co-management principles, emphasizing shared decision-making authority and sustained federal–tribal relationships.
Current Articles
Most Popular Articles
- Editor's Note15 September 2025
- Article15 September 2025
TRIBAL SOVEREIGN IMMUNITY: ABSOLUTE AUTHORITY OR ACCOUNTABILITY
In the wake of the recent United States Supreme Court decision of Trump v. United States, the Court determined that the President as Chief Executive is immune from conduct associated with official acts.3 The question that emanates from this opinion is how will this decision affect Indian Country and tribal court determinations of tribal sovereign immunity? This article will attempt to address this question. I begin with the Anishinaabe story of Bebaamosed miinawaa Gawigoshko’iweshiinh (The Trickster and the Little Scary Bird)5 in an attempt to understand the complicated nature of tribal sovereign immunity. - Article15 September 2025
DISCOVERING THE DOCTRINE OF DISCOVERY
The doctrine of discovery is a concept in crisis. A principle of public international law associated with the so-called Age of Discovery, the doctrine of discovery is commonly said to have authorized European nations to claim the lands of indigenous peoples and establish settlements on the basis of “discovery” alone. Today, with good reason, the doctrine is widely condemned. The United Nations has denounced it as “the very foundation of genocide.” Describing its manifest injustices against indigenous cultures, dominion, and sovereignty as “devastating, far-reaching and intergenerational,” the UN Economic and Social Council has called for the doctrine to be categorically repudiated and its ongoing effects redressed. Many nation-specific organizations agree. The American Indian Law Alliance cites the doctrine of discovery as the theoretical undergirding for centuries of European land theft worldwide, the genocide of indigenous peoples, and the origin of the Atlantic slave trade.5 In 2015, the Canadian Truth and Reconciliation Commission called for its repudiation, asserting that it fraudulently legitimized European sovereignty over indigenous peoples and their lands. Criticism of the doctrine has been especially pronounced within twenty-first century Christian . . . - Article15 September 2025
USES AND ABUSES OF JOHNSON v. M’INTOSH IN NATIVE AMERICAN LAND RIGHTS CASES: INVESTIGATIVE INSIGHTS FROM THE INDIAN LAW JUSTICE FILES
The 200th anniversary of the foundational Indian law decision Johnson v. M’Intosh has come and gone, with many scholars contributing criticism and commentary. The dominant focus has been the case’s notorious embrace of the so-called “doctrine of discovery,” an odious theory for rationalizing European nations’ claims of superior rights to lands occupied by Indigenous Native American peoples. Commanding less attention, however, is the Johnson decision’s core protective legal feature, i.e., its reinforcing the United States government’s duty to guard against the alienation of Indian lands through private, unauthorized acquisitions. - Essay15 September 2025
A RECIPROCITY: OFF-RESERVATION TREATY HUNTING RIGHTS
Hunting encompasses a reciprocal relationship between animal and hunter—a social act between two equals. To hunt is to be given a gift and to be indebted to the animal. American Indians recognize an animal’s autonomy and “inner vital essence of being”—the animal as a “loci of causality in the dynamics of the universe.” The social reciprocity between hunter and animal is greater than metaphor or belief; it is real. Since time immemorial, tribes have relied on the gift of the animal for survival. By doing so, they have established what American law recognizes as aboriginal title. As Montana tribes negotiated the cession of their traditional territories and took smaller tracts called reservations, many tribes impliedly reserved the right to hunt within these tracts and some reserved the right outside the reservation’s exterior boundary. The tribal signatories’ understanding that the animal is “intimately connected and related” to the hunter informs their reserved right . . . - Article15 September 2025
INDIAN CASINOS UNDER THE BIG SKY: WHY TRIBES IN OTHER STATES HAVE BEEN MORE SUCCESSFUL WITH GAMING AND THE PATH FORWARD FOR MONTANA’S TRIBES
The most successful method of economic development for many Indian tribes in the United States has been gaming. Tribes across the country have risen out of poverty through their casino operations and have been able to use the profits to diversify their investments and improve tribal infrastructure, education, and social programs.