Jason Robison has published “Tripartite Water Sovereignty” in the Yale Law Journal.
Here is the abstract:
Former U.S. Supreme Court Justice Felix Frankfurter and former Harvard Law School Dean James M. Landis published in 1925 the seminal work on the U.S. Constitution’s Compact Clause. Their article focused on cosovereignty within the United States, but only in a binary sense. While indelibly shaping interstate and federal-state relations, North America’s original sovereigns—Native nations—were not visible within this influential piece. So, too, with the approximately two dozen compacts later formed to apportion water from rivers running across and along state lines, agreements that acknowledged Native nations and their water rights only at the margins, if at all. Revisiting Frankfurter and Landis’s pivotal piece one century later, this Article urges advocates and scholars to look beyond the binary conception of cosovereignty 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 contends that these cosovereigns must be respected as what they are—sovereigns—and afforded opportunities for direct representation on compact commissions beside their state and federal counterparts. The Article outlines several ways to achieve this indigenization and, ultimately, move from binary to tripartite water cosovereignty.
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