Here.
NYTs Op/Ed: “Native Alaska, Under Threat”
Here.
Environmental
Sarah Krakoff on Settler Colonialism, Natural Resources Law, and Indian Law
Sarah Krakoff has posted “Settler Colonialism and Reclamation: Where American Indian Law and Natural Resources Law Meet” on SSRN. It’s forthcoming in the Colorado Natural Resources, Energy & Environmental Law Review. Here is the abstract:
Three hours east of Phoenix, Arizona, the Colorado River Indian Tribes (“CRIT”), a federally recognized tribe that includes over 3,700 enrolled members of Mohave, Chemehuevi, Navajo, and Hopi descent, occupies a reservation nearly 300,000 acres in size. The CRIT was one of five tribes to have its water rights confirmed in the landmark case of Arizona v. California, and therefore has senior rights to 719,248 acre-feet of Colorado River water, nearly one-third of Arizona’s allocation. How the CRIT came to be a single federally recognized tribe composed of members from four indigenous peoples located on lands that were a fraction of their aboriginal territory is both a federal Indian law story and a natural resources law story. The stories are two sides of a single coin, which is the currency of settler colonialism in the United States. The object of settler colonial societies was to clear the land of their indigenous populations to allow for nonindigenous settlement. In the U.S. context, American Indian law has often done the work of clearing the land, while natural resources law assures the successful occupation of that land by non-Indians. This Article delves into CRIT’s natural resources history, which serves as a reminder that public land and water law do not start from a blank slate. The distribution of land and water to non-Indians required first that those resources be wrested from Indian control. With that as the starting point, current debates about Indian water rights can be seen in their proper context, as measures of corrective justice that recognize indigenous peoples’ preexisting political, moral, and legal claims, rather than as special rights doled out to select minorities. Understanding tribal water rights this way also liberates them from static and limited notions of use, making them all the more relevant to the contemporary challenges of climate change and resource scarcity.
Highly recommended!
Scholarship on Using CERCLA to Save the Native Village of Kivalina
Robert J. Martin has published “The Village of Kivalina is Falling Into the Sea: Should CERCLA Section 9626(b) Be Available To Move the Village from Harm’s Way?” in the Barry Law Review.
Here is the abstract:
The Village of Kivalina, and other similarly situated Native Alaska villages, are in danger of falling into the sea. Regional climate change is melting the permafrost that acts as the foundation of their communities. Sea ice that once acted as a barrier during storm season today melts earlier, and erosion rates are increasing. Kivalina’s situation is further worsened by the threat of contamination from a nearby open dump. Without permanent relocation, Kivalina and its residents face imminent harm.
Congress has given the President authority to permanently relocate an Indian tribe or Alaska Native village under CERCLA Section 9626(b). This article proposes that the President exercise such authority to protect the health and welfare of Kivalina and its residents. In view of the longstanding trust obligation of the United States to Indian tribes and Alaska Native villages, which is embodied in treaties, statutes, executive orders and court decisions, the President should exercise his clear authority to protect the Village from harm.
Montana SCT Authorizes Transfer of Yellowstone Bison to Fort Peck Reservation
New Scholarship: “Re-Thinking Colonialism to Prepare for the Impacts of Rapid Environmental Change”
Nicholas James Reo and Angela K. Parker have published “Re-Thinking Colonialism to Prepare for the Impacts of Rapid Environmental Change” in Climatic Change. Highly recommended.
Here is the abstract:
This essay demonstrates how key concepts from ecology can be applied within historical analyses in order to gain insights regarding contemporary environmental change. We employ a coupled human and natural systems conceptual framework in a nascent historical analysis of rapid societal and environmental change in colonial New England, where European colonization led to stark and rapid transformations. Introduced diseases reduced indigenous communities to a fraction of their pre-contact levels. European agriculture and associated pest species, deforestation and overharvest of ecologically influential species were among key aspects of the rapid changes in colonial New England. Cross-continental biotic introductions initiated reinforcing feedback loops that accelerated the transition of human and natural systems into novel states. Integrating colonial history and ecology can help identify important interactions between human and natural systems useful for contemporary societies adjusting to environmental change.
A Historic Assertion of Water Rights by the Klamath Tribes
An excerpt from the Oregonian
In March, after 38 years of work, the state found that the tribes’ water rights dated to “time immemorial,” making them by far the most senior. That means the tribes will get water to protect fish in traditional fishing grounds, including two species of suckers on the endangered species list.
Farmers irrigating through the federal government’s 1905 Klamath Reclamation Project, covering roughly 200,000 acres that draw from the lake, will also get water, though they’ll face restrictions, too.
But “off-project” irrigators on about 150,000 acres above the lake generally have junior water rights to reclamation-project irrigators. They’ll have to tap wells if they can or see their water supplies reduced or shut off.
The AP story is here.
The administrative law decision and other materials can be found here.
“Gifts from the Elders”
I am looking forward to seeing this film.
In the filmGifts from the Elders, five Anishinaabe youth take a summer to embark on a journey via the stories of their Elders. The youth are taken back to a time when people could live healthily off the land, and they contrast it to the options of today.
“Their stories chronicle the devastating impact that environmental and cultural dispossession had on the flow of knowledge from Elders to youth, and ultimately on the health of their people,” the filmmakers say on the documentary’s website.
Article about the film here.
Official site for the film here.
Alberta First Nations Band Win Right to Trial Over Oil Sands’ Effect on Treaty Rights
A small First Nations band in Alberta has racked up a big win against the energy industry, clearing the way for a trial over whether its treaty rights are being infringed upon as industrial development such as the oil sands expands.
The Beaver Lake Cree Nation argues the so-called cumulative effects of oil sands and other industries such as mining and forestry violated their treaty rights. The provincial and federal governments grant permits which allow for development. Beaver Lake Cree Nation launched a legal battle five years ago and now Edmonton and Ottawa have lost their attempt to have it tossed out.
Full article here.
UN Working Group, Navajo Nation Collaborate on Human Rights Issues
The rest of the article can be found here. Previous coverage here.On April 27, in an official visit to the United States, a United Nations Working Group on Business and Human Rights met with the Navajo Nation’s human rights experts and others in Flagstaff, Arizona. The Navajo representatives reported on two situations facing the Navajo people:Arizona Snowbowl, a ski resort that has begun a much-opposed project to spray treated wastewater on the sacred San Francisco Peaks, and predatory lending issues surrounding the lending group Santander Consumer USA.
Uranium Companies and Others Challenge Secretarial Withdrawal of Lands Around Grand Canyon on Establishment Grounds
In January of 2012, Secretary Salazar announced that he was withdrawing lands near the Grand Canyon. Specifically, the withdrawal prohibits new mining claims and development on old claims that lack “valid existing rights.”
Recently, uranium companies and others have challenged the withdrawal. A portion of Yount’s Second Amended Complaint:
SIXTH CLAIM
The Secretary of the Interior’s rationale for a withdrawal as stated in his Record of Decision is substantially based on granting an unconstitutional preference for the religious belief of Native Americans proximate to the NAPWA. By deferring to Native American religious and cultural beliefs this appears to convey a message of government endorsement of their religious beliefs contrary to established law.
A portion of Quaterra Alaska, Inc.’s Amended Complaint:
Federal law does not recognize the right to preclude land uses
based solely on religious or cultural sensibilities. Sensibilities or feelings that are separate from a site protected under the NHPA or religious practice protected by RLUIPA and enjoy no legal protection. A withdrawal based on protecting sensibilities independent of legally protected sites and religious practices is arbitrary and capricious and contrary to
law. It is based on irrelevant factors not recognized in law and exceeds the Secretary’s authority.
Turtle Talk 
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