The City of Pocatello is petitioning for certiorari in this subproceeding in the Snake River General Stream Adjudication.
Here is the Idaho Supreme Court decision.
Environmental
Judith Royster on Tribal Resources and Economic Development
Judith Royster has posted “Tribal Economic Development: Practical Sovereignty, Political Sovereignty, and the Secretary’s Shrinking Role in Natural Resource Development,” part of the Lewis & Clark Indigenous Economic Development Symposium. Here is the abstract:
One of the primary means of economic development for many Indian tribes is development of the reservation’s natural resources. Despite the extent and economic importance of the resource base, however, tribal control over the development and use of tribal natural resources has historically been limited. In the last few decades, Indian tribes have gained a far greater role in decision-making concerning the use of their natural resources. In part this increased role results from tribes asserting a greater say in what occurs within their territories, and in part from new federal laws that place more of the decision-making power in tribal hands.
The three major natural resources traditionally subject to leasing are agricultural and grazing lands, forests, and minerals. Each has been subject to federal statutes that follow a similar arc – comprehensive federal control and exploitation during the allotment period; a slight loosening of federal control, tribal consent, and concern with tribal revenue streams in the reorganization period; and new approaches focusing more on tribal participation, partnerships, and increased control during the modern era of self-determination. Most recently, Congress has begun to enact a next generation of resource development statutes that authorize tribes, subject to Interior-approved general regulations, to enter into specific development agreements without federal approval. Following a review of the trajectory of tribal resource development statutes, this article explores the most wide-ranging of these new statutes: the Indian Tribal Energy Development and Self-Determination Act of 2005.
NYT’s: Energy Exploration Threatens Indian Artifacts
From the NYTs:
DOLORES, Colo. — The dusty documentation of the Anasazi Indians a thousand years ago, from their pit houses and kivas to the observatories from which they charted the heavens, lies thick in the ground near here at Canyons of the Ancients National Monument.
Or so archaeologists believe. Less than a fifth of the park has been surveyed for artifacts because of limited federal money.
Much more definite is that a giant new project to drill for carbon dioxide is gathering steam on the park’s eastern flank. Miles of green pipe snake along the roadways, as trucks ply the dirt roads from a big gas compressor station. About 80 percent of the monument’s 164,000 acres is leased for energy development.
The consequences of energy exploration for wildlife and air quality have long been contentious in unspoiled corners of the West. But now with the urgent push for even more energy, there are new worries that history and prehistory — much of it still unexplored or unknown — could be lost.
Sarah Krakoff on American Indians and Climate Change
Sarah Krakoff has published “American Indians, Climate Change, and Ethics for a Warming World” in the Denver University Law Review.
From the introduction:
American Indian tribes and people have contributed very little to the causes of global warming, yet for geographic, cultural, and demographic reasons, they stand to suffer disproportionately from global warming’s negative effects. A recent study, Native Communities and Climate Change, prepared by the Natural Resources Law Center at the University of Colorado Law School, documents that these effects include, among others, threats to traditional hunting and gathering, destruction of tribal villages in Alaska, increased pressure on tribal reserved rights to water in the arid Southwest, and inundation of reservation lands in Florida. The disproportion between tribal contributions to global warming and the negative impacts on tribes qualifies this as an environmental justice issue. As the Native Communities and Climate Change Report suggests, a complex of legal rights, in conjunction with Congress’s moral obligation to tribes, provides the foundation and incentive for the federal government to take action to address these impacts.
Great Lakes Compact in Congress
From the Detroit News:
A ban on water diversions from the Great Lakes advanced Wednesday as the House Judiciary Committee voted to move it to the full House floor and the Senate Judiciary Committee heard advocates explain its urgency.
“We’re at the five-yard line,” said Andy Buchsbaum, the director of the Great Lakes office of the National Wildlife Federation. “We’ve really got momentum.”
The compact was signed by the eight governors of Great Lakes states: Michigan, Illinois, Indiana, Minnesota, New York, Ohio, Pennsylvania and Wisconsin.
It would ban diversions outside the basin in all but the rarest circumstances and encourage conservation.
Advocates worry that the looming water crisis in other parts of the nation and around the globe could end in forced diversions from the Great Lakes.
ICT Article on New Grand Traverse Band Casino
From ICT:
WILLIAMSBURG, Mich. – Go green!
That might be the new motto for the Grand Traverse Band of Ottawa and Chippewa Indians.
The northern Michigan tribe, which opened the doors to its rebuilt Turtle Creek Casino & Hotel in June, has received much fanfare for creating an eco-friendly gaming destination.
The project didn’t come without apprehension, though.
As GTB officials excitedly toured tribal casinos in their state and visited gaming properties in Las Vegas during planning stages of their new Turtle Creek property, they were nervous about the direction architect Stephen Knowles envisioned.
Roberts v. Hagener — CA9 Upholds Montana State Hunting Laws
Miccosukee Complaint re: EPA’s Water Transfer Exemption Rule
Here is the new complaint in Miccosukee Tribe v. EPA.
Native Village of Kivalina v. Exxon Update
Here is the motion to dismiss the complaint, from the oil companies. As expected, the key arguments regard the causation issue and the lack of a federal common law cause of action.
Kristen Carpenter: “Real Property and Peoplehood”
Kristen Carpenter has published her excellent paper “Real Property and Peoplehood” in the Stanford Environmental Law Journal. Here is the abstract:
This Article proposes a theory of “real property and peoplehood” in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unwilling to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the United States took from them. This is especially true with regard to Indian “sacred sites.” These are features of the natural landscape holding religious and cultural significance for American Indian tribes. The Supreme Court has held that destruction of sacred sites located on the public lands does not impinge on individual religious belief and falls within the government’s powers as a landowner. This is true even if the sacred site is unique and essential to a particular religious practice. Although recent federal policy has evolved in favor of accommodating Indian sacred sites practices, land management agencies use their considerable discretion to permit competing uses of the public lands–such as natural resource development and tourism–that threaten the physical integrity of sacred sites. Such decisions devastate Indian people and undermine our shared expectation of free exercise rights for all Americans. Thus, federal law needs to prioritize Indian interests in sacred sites over competing uses of the public lands. Unfortunately, we do not yet have a legal theory justifying such a position.
My theory of real property and peoplehood furthers the work of scholars who have recognized the relationship between human beings and property, albeit in other contexts. Most influentially, Professor Margaret Jane Radin *314 has long argued for special legal protection of property that expresses an individual’s sense of self and therefore cannot be translated into a monetary value. But whereas Radin focuses on property that expresses individual personhood, I am interested in property that expresses collective “peoplehood.” As a descriptive matter, this concept of peoplehood reflects that, even in the United States where the individual rights paradigm dominates, individuals affiliate themselves along sub-national political, religious, ethnic, and cultural lines and their exercise of fundamental liberties occurs in those contexts. As a normative concept, John Rawls has argued that as a matter of “reasonable pluralism,” liberal states like the United States should recognize peoples and treat them fairly. To do otherwise is to fall short of our best democratic principles, such as the idea that all Americans are entitled to religious freedom. Working at the confluence of Radin and Rawls, the Article argues that Indian tribes are peoples whose legitimate interests in sacred sites deserve special legal protection as a testament to American liberty for both individuals and groups.
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