Benham – Spring 2023

The Oil Lease Under the Flower Moon[1]

Anna Benham

What is, one might say, the tenuous link between a child custody case, bitterly fought, pending in the U.S. Supreme Court, and the regulatory and environmental threat to 56 million acres of Indian land under wherein bubbles vast and truly eye-watering reserves of liquid wealth?

The Goldwater Institute, the primary litigant in Brackeen, is a right-wing think-tank which has been connected to primarily private issues regarding free-speech, tax, and property rights. Notably, the Goldwater Institute has evoked Ayn Rand in order to state that taxing oil companies is giving bureaucrats the power “to exhort money from businesses consumers prefer in order to support politically favored cronies”; and filed lawsuits to challenge clean energy initiatives.[2],[3] One might ask—why are they so interested in Indian children?

Here, I hope to juxtapose the racial/political designations of tribal lands and Indians to see how the potential alteration of the federal trust responsibility as a result of the Brackeen ruling may have wide-ranging repercussions for tribal lands held in federal trust across the United States and resulting environmental repercussions.

This similarity rests with the federal-tribal trust relationship and the tenuous and ever changing racial/political tribal designation of Indians within the United States.[4] In 1931, the U.S. Supreme Court first recognized the doctrine of the federal trust relationship between the federal government and Indian Tribes in Cherokee Nation v. Georgia.[5],[6] The federal trust relationship is the: 

Legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages.[7]

This legally enforceable fiduciary power originates from the Indian Commerce Clause,[8] and is the root of Congress’ authority to establish the Indian Child Welfare Act (ICWA) –the primary issue at stake in Brackeen– and the tribal land leases that exist across the United States. For example, and notably, the mineral, oil, and gas rights under the Osage Allotment Act are held in trust under this trust relationship by the United States for the “benefit of Indian tribes”. [9]

At the heart of the fiduciary responsibilities toward both Indian children and land is the racial versus political designation of Indians. In Morton v. Mancari, the Court stated that tribal preferences were non-racial, because the designation “is granted to Indians not as a discrete racial group, but rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the Bureau of Indian Affairs in a unique fashion”.[10] Furthermore, Congress has the power to classify Indians as non-racial entities as long as the classification is in rational fulfillment of the trust responsibility.  

The plaintiff’s primary arguments in Brackeen target this unique fiduciary relationship between the federal government and Indian tribes, fundamentally undermining Indian sovereignty. First, they argue that ICWA’s placement preferences discriminate on the basis of race, and second, that drawing these racial lines exceeds Congress’s Article I powers. Part of the plaintiff’s argument states that additionally, the sphere that is federally protected, because of its Indian status, should be regulated to the domain of states. While seemingly trivial, if tribal designations are determined to be racial, not political, ICWA would be found to violate the Equal Protection clause of the Constitution, and several decades of law reinforcing Indian sovereignty would be eradicated, effectively overnight.

Justice Gorsuch, in oral arguments for Brackeen, stated that such a ruling would undermine “Title 25 of the U.S. code [which outlines the role of Indians in the United States], which in part, allows Congress to permit tribes to exercise power over environmental regulations that have indirect effects off of reservations”.[11]

Indian environmental control over their land rests in this racial/political classification which maintains the federal trust relationship. Traditionally, Indian lands have a federal restraint on their land—meaning only the federal government, (hopefully) in cooperation with tribal leaders can allow non-Indians to operate, or sign leases to extract resources on tribal land. As a result, there are protections on that land that are federal and rooted in Indian status. These protections include environmental protections that derive from the Clean Water Act, the Clean Air Act, National Historic Preservation Act, Surface Mining Act, and various additional protections that the U.S. Environmental Protection Agency enacts or delegates to tribes.[12],[13] These protections can be withdrawn – and placed in state control as seen following an October 2020 (now repealed) order by the Trump Administration granting the Oklahoma state government authority over environmental issues in Indian land.

Although unlikely, if the racial designations in ICWA are undermined, the very nature of the federal trust relationship regarding Indian lands will likely change—granting states increased control over Indian lands. In April 2021, the Oklahoma state government stated, that if tribal control over Indian land was expanded, it risks “losing control of a big tax base”, and “foresees increased uncertainty over future regulation of natural resources extraction, industry, and future development in the region”. [14]

It is not so difficult, to see then, what may happen to tribal-controlled land if the federal-trust relationship becomes weakened. If tribal designations shift to a racially determined basis, we should most likely expect to see Indian affairs which have been traditionally managed federally—such as family law, environmental and land rights—start falling to the states—with gross wide-ranging environmental repercussions.

Anna Benham is a Junior Editor with MJEAL. Anna can be reached at

[1] I want to thank Professor Matthew Fletcher for his incredible advice regarding this short piece. All mistakes and faults are my own.

[2] Sandefur, Christina Truth is Graver than Fiction (2014),

[3] Leach v. Reagan 430 P.3d 1241(2018)

[4] See generally; United States v. Mitchell 463 U.S. 206, 225 (1983); United States v. Navajo Nation 537 U.S. 488, 490 (2003).

[5] 30 U.S. 1 (1831)

[6] Washington Secretary of the Interior, Order No. 3335

[7] U.S. Department of the Interior, What is the Indian Trust Responsibility? (2017)

[8] Article 1, Section 8, Clause 3 “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, is also colloquially known as the “Indian Commerce Clause”.

[9] Supra, note 1.

[10] 417 U.S. 535 (1974)

[11] Brackeen Oral Arguments pg.72: 12-21

[12] Correspondence with Professor Matthew Fletcher.

[13] Generally known as “Treatment as a State” status by the EPA

[14] Jennifer Hiller, Biden Admin Discusses Tribes’ Broader Oversight in Oil Rich Oklahoma Reuters (2021),

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