Turtle Talk

Jason Robison has posted “Equity Along the Yellowstone,” published in the University of Colorado Law Review, on SSRN.

Here is the abstract:

As one of three major rivers with headwaters in the sublime Greater Yellowstone Ecosystem, the Yellowstone and its tributaries are subject to an interstate compact (a.k.a. “domestic water treaty”) litigated from 2007 to 2018 in the U.S. Supreme Court in Montana v. Wyoming. Four tribal nations exist within the 71,000 square‑mile Yellowstone River Basin: the Crow, Eastern Shoshone, Northern Arapaho, and Northern Cheyenne. Yet, the Yellowstone River Compact, ratified in 1951, more than a decade before the self‑determination era of federal Indian policy began, neither affords these tribal sovereigns representation on the Yellowstone River Compact Commission nor clearly addresses the status of their water rights within (or outside) the compact’s apportionment. Such marginalization is systemic across Western water compacts. Devised as alternatives to original actions for equitable apportionment before the U.S. Supreme Court, this Article focuses on the Yellowstone River Compact and its stated purpose of “equitable division and apportionment,” reconsidering the meaning of “equity,” procedurally and substantively, from a present‑day perspective more than a half‑century into the self‑determination era. Equity is a pervasive and venerable norm for transboundary water law and policy contends the Article, and equity indeed should be realized along the Yellowstone in coming years, both by affording the basin tribes opportunities to be represented alongside their federal and state co‑sovereigns on the Yellowstone River Compact Commission, as well as by clarifying the status of and protecting the basin tribes’ water rights under the compact’s apportionment.