cultural resources – Page 53

New Scholarship on Indigenous Water Justice

August 10, 2017Matthew L.M. Fletcher

Jason A. Robison, Barbara A. Cosens, Sue Jackson, Kelsey Leonard, and Daniel McCool have posted “Indigenous Water Justice” on SSRN.

Here is the abstract:

Indigenous Peoples are struggling for water justice across the globe. These struggles stem from centuries-long, ongoing colonial legacies and hold profound significance for Indigenous Peoples’ socioeconomic development, cultural identity, and political autonomy and external relations within nation-states. Ultimately, Indigenous Peoples’ right to self-determination is implicated. Growing out of a symposium hosted by the University of Colorado Law School and the Native American Rights Fund in June 2016, this Article expounds the concept of “indigenous water justice” and advocates for its realization in three major transboundary river basins: the Colorado (U.S./Mexico), Columbia (Canada/U.S.), and Murray-Darling (Australia). The Article begins with a novel conceptualization of indigenous water justice rooted in the historic United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)—specifically, UNDRIP’s foundational principle of self-determination. In turn, the Article offers overviews of the basins and narrative accounts of enduring water-justice struggles experienced by Indigenous Peoples therein. Finally, the Article synthesizes commonalities evident from the indigenous water justice struggles by introducing and deconstructing the concept of “water colonialism.” Against this backdrop, the Article revisits UNDRIP to articulate principles and prescriptions aimed at prospectively realizing indigenous water justice in the basins and around the world.

2017 Canoe Journey Blog

August 8, 2017August 8, 2017Ann Tweedy

The Northwestern Tribes’ Canoe Journey wrapped up this past weekend in Campbell River. Here’s Matika Wilbur’s beautiful blog documenting the Journey. I was privileged to attend the Muckleshoot landing.

: Muckleshoot Canoe Landing © Ann Tweedy

Tribal Comments on Dynamic Risk Draft Alternatives Analysis (Line 5)

August 2, 2017Matthew L.M. Fletcher1 Comment

Here:

Tribal Comments on Dynamic Risk Draft Alternatives Assessment

ATTACHMENT A

D.C. Circuit Vacates Western Great Lakes Gray Wolf Delisting Rule

August 1, 2017Matthew L.M. Fletcher

Here is the opinion in Humane Society of the United States v. Zinke.

An excerpt from Judge Millett’s opinion:

The gray wolf once roamed in large numbers across the contiguous forty-eight States. But by the 1960s, hunting, depredation, and habitat loss drove the gray wolf to the brink of extinction, and the federal government declared the gray wolf an endangered species. After a portion of the gray wolf population rebounded, the government promulgated the rule at issue here, which removes from federal protection a sub-population of gray wolves inhabiting all or portions of nine states in the Western Great Lakes region of the United States. The Humane Society of the United States challenges that rule as a violation of the Endangered Species Act of 1973 (“Act”), 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Because the government failed to reasonably analyze or consider two significant aspects of the rule—the impacts of partial delisting and of historical range loss on the already listed species—we affirm the judgment of the district court vacating the 2011 Rule.

Lower court decision here.

NYTs Profile of ““Rumble: The Indians Who Rocked the World”

August 1, 2017Matthew L.M. Fletcher

Here is “An Encore for the Native Americans Who Shook Up Rock ’n’ Roll.”

And here is a review of the film.

New Scholarship on Standing Rock, Treaties, and the Supremacy Clause

August 1, 2017Matthew L.M. Fletcher

Carla F. Fredericks & Jesse D. Heibel have posted “Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause,” forthcoming in the University of Colorado Law Review.

Here is the abstract:

The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.

At the center of the fight are the 1851 and 1868 Treaties entered into by the United States and the Great Sioux Nation. The pipeline route, which was chosen without input from the Tribes, runs directly through the heart of treaty lands secured to the Great Sioux Nation in the 1851 Treaty of Fort Laramie, lands to which the Sioux Tribes continue to have strong cultural, spiritual, and historical ties. Furthermore, the construction and operation of an oil pipeline directly upstream from their current reservations undoubtedly threatens the Tribes’ hunting and fishing rights expressly reserved in the 1868 Treaty and affirmed in numerous subsequent Acts of Congress, as well as their reserved water rights pursuant to the Winters Doctrine.

But as the Tribe and their attorneys battled for injunctive relief in federal court, the Treaties were largely absent in the pleadings and court opinions. However, with the District Court’s ruling on June 14, 2017, it appears the Treaties now present the crux of the surviving argument, presenting problems for the Court in terms of both their applicability in the face of Congress’ plenary power over Indian tribes and diminished Trust responsibility as well as the appropriate remedy for the Tribes when and if these Treaty rights are violated. As such, the case provides an opportunity to analyze the truth and lies surrounding the Constitutional place of Indian Treaties in federal courts.

Article VI, Clause 2 of the Constitution states “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Known as the “Supremacy Clause,” this consitutional provision has serious implications in federal Indian law. Of particular importance is whether treaties made with Indian tribes can be considered the “supreme Law of the Land”. The current litigaiton and historic indigenous uprising against the Dakota Access Pipeline, the route of which lies within recognized tribal treaty boundaries, provides a contemporary example of the limitations of Supremacy Clause. This article attempts to place the Standing Rock and other Sioux Tribes’ legal battle against the Dakota Access pipeline against the history of Indian treaties and treaty rights for a contemporary examination of federal courts application of Indian treaty rights and the limits of the Supremacy Clause to ensure Indian treaties and treaty rights be respected as the “supreme law of the land.”