Turtle Talk

Jason Robison has posted “Beyond Binary Co-Sovereignty: Native Nations & Water Compacts,” forthcoming in the Yale Law Journal, on SSRN.

Here is the abstract:

Former U.S. Supreme Court Justice Felix Frankfurter and former Harvard Law School Dean James Landis published in 1925 the seminal work on the U.S. Constitution’s Compact Clause. The article was, by definition, about co-sovereignty within the United States, though only in a binary sense. While shaping indelibly interstate and federal-state relations, North America’s original sovereigns, Native nations, were not visible within the influential piece. So, too, with the approximately two dozen compacts later formed to apportion water from rivers running across and along state lines, compacts acknowledging Native nations and their water (property) rights only at the margins, if at all. Revisiting Frankfurter and Landis’s seminal work exactly one century later, this Article advocates for moving beyond the binary conception of co-sovereignty apparent in that piece and entrenched in the suite of compacts created in its wake. Tracking Native nations’ growing calls for inclusion in transboundary water management, the Article advocates for these co-sovereigns to be respected as just that—sovereigns—and afforded opportunities for direct representation on compact commissions beside their state and federal counterparts. Food for thought is offered about potential forms and processes for this indigenization, all of which aim at the Article’s ultimate goal: further socializing and institutionalizing tripartite co-sovereignty.