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Is the principle of free navigation, as applied to international rivers, relevant to present-day political and economic reality? Ordinarily, the first thing to be done in an article such as this is to define the principal term, i.e., "free navigation," or "navigational freedom." In this case it is impossible to give a single definition. The term, idea, concept, or rationale is a chameleon, changing its meaning from place to place and from time to time. A number of the following pages will be devoted to tracing these various meanings and showing the confusion that arises from their existence. Briefly, there are at least five major meanings that must be dealt with: (1) physical freedom of movement of vessels up and down a river, without regard to trading opportunities or access to port facilities; (2) physical freedom, plus complete laissez faire opportunity for trading among riparian countries; (3) physical freedom, plus the realistically limited trading opportunities of nineteenth century Europe; (4) physical freedom, plus the realistically limited trading opportunities of present-day western Europe; (5) physical freedom, plus the realistically limited trading opportunities of present-day eastern Europe. There is also confusion between the idea of navigational freedom on the one hand and the international commissions sometimes created to assure such freedom on the other. There are other meanings and submeanings to these terms, but those noted above are the most commonly encountered. No one, it seems, has ever successfully settled the definition, although the author has concluded that the most commonly intended meaning is number (2) above. In most instances authors simply fail to indicate which of the various meanings they intend. Unless otherwise indicated, the number (2) definition above will be used in this article. The purpose of this paper will be to analyze the origin of the concept, trace its (their) development, point out the most commonly used meanings, and then demonstrate the substantial irrelevance of ...

In March, 1959; the International Columbia River Engineering Board submitted its report on the co-operative development of the river to the International Joint Commission. In December, 1959, that Commission submitted to the governments of Canada and the United States its recommendations for apportionment of benefits if co-operative development is undertaken. And thirdly, in the last two years there has been much attention directed at the Peace River development, which is considered by some as competitive with the Columbia. Let us examine the effects of these events on the Columbia River problem. A presentation for Panel II, Current Legal Problems Connected with International Traversing River Systems.

The dispute between the United States and Canada regarding the apportionment of the Columbia River is not settled. In March 1959, pursuant to the 1944 reference, the International Joint Conimission submitted to the governments of Canada and the United States a comprehensive engineering report on "Water Resources of the Columbia River Basin" prepared by the International Columbia River Engineering Board. This report contains three plans for utilizing the resources of the Columbia. Two of these plans include diversion of part or all of the Kootenay River into the Columbia at Columbia Lakes. All three plans would develop about the same amount of power and flood control benefits. Interestingly, none of them mentions the sometimes threatened diversion of the Columbia into the all Canadian Thompson and Fraser Rivers.

In November 1990, Congress passed the Native American Graves Protection and Repatriation Act ("NAGPRA"). NAGPRA provides for the protection and disposition of Native American cultural items discovered on federal or tribal lands after NAGPRA's effective date. NAGPRA also addresses disposition of those objects currently held or controlled by federal agencies and museums. NAGPRA represents Congress' attempt to resolve years of debate between tribes, archaeologists, and museums. Like any legislative pronouncement, however, Congress left key issues to agencies and courts to resolve. This article focuses upon one such area, namely, Fifth Amendment takings questions that may arise when tribes or individual Native Americans demand the return of cultural items from persons discovering them on lands owned in unrestricted fee simple on Indian reservations . The first section of the article describes the statutory scheme. The second section delineates the different classes of cultural items and legal principles pertaining to ownership. The third section explores issues related to Fifth Amendment takings. The article concludes with recommendations for both the Department of Interior to consider in forthcoming rulemaking and for Congress to consider in future legislative pronouncements affecting the return of Native American cultural items.

Twenty years ago coastal zone protection was merely a gleam in the eyes of a few west coast visionaries. A flurry of state and federal laws in the late 1960s and into the 1970s changed this. Today, broad coastal management programs are in place in all three west coast states, with a special one for San Francisco Bay. Each program is unique, and at the same time shares significant qualities with the others. This article identifies the major attributes of these four programs and offers insights into the strengths and weaknesses of each. In comparing and contrasting the four programs, this article focuses on five topics. Four topics emphasize the process of coastal zone management: public participation, state and local government relationships, enforcement of program requirements, and federal consistency with approved state programs. The remaining topic stresses substantive changes in patterns of coastal resource use. These five topics were selected in order to distinguish broad aspects of coastal zone management from regulatory programs. These topics also were chosen because of the opportunities they offer for interstate comparison. All three states, for example, have delegated substantial planning and implementation to coastal local governments. Such delegation has created significant program monitoring and enforcement problems. Similarly, all four evaluated programs utilize water dependency as a principal shoreline allocation criterion. The inclusion of water dependency also allows some preliminary attempts to link program processes with concrete program outcomes. For all five topics, the legal framework governing each program is outlined and the experiences of administering the program assessed. Statutes, agency regulations, and court decisions combine to form the relevant legal framework and provide the essentials for how coastal zone management was designed to operate. Of course, the legal framework has been modified as experience in administration dictated. Thus, the article also considers how particular ...

An examination of the tribal courts' civil jurisdiction and sovereign immunity decisions, and a review of the doctrine's origins and purposes in federal and state law reveal the increasing importance of the sovereign immunity doctrine and suggest several options to tribal councils and courts in deciding which aspects of the doctrine to retain. The article concludes that: (1) The doctrine of sovereign immunity is not part of the con-. trolling federal law applicable to Indian tribal courts, except where trust property is involved. (2) Each Indian tribe has inherent sovereign power to adopt, reject, or waive the doctrine of sovereign immunity for suits in tribal courts, except those concerning trust property. In such actions, only Congress may waive sovereign immunity. (3) Where a tribal constitution or ordinance fails to address sovereign immunity, the tribal court must decide whether the doctrine is part of the common law of that tribe and whether and to what extent the doctrine should be limited by exceptions. While sovereign immunity is widely criticized, both the federal and state governments continue to retain certain aspects of the doctrine. Indian tribal governments may find it useful to do the same.

An examination of the tribal courts' civil jurisdiction and sovereign immunity decisions, and a review of the doctrine's origins and purposes in federal and state law reveal the increasing importance of the sovereign immunity doctrine and suggest several options to tribal councils and courts in deciding which aspects of the doctrine to retain. The article concludes that: (1) The doctrine of sovereign immunity is not part of the controlling federal law applicable to Indian tribal courts, except where trust property is involved. (2) Each Indian tribe has inherent sovereign power to adopt, reject, or waive the doctrine of sovereign immunity for suits in tribal courts, except those concerning trust property. In such actions, only Congress may waive sovereign immunity. (3) Where a tribal constitution or ordinance fails to address sovereign immunity, the tribal court must decide whether the doctrine is part of the common law of that tribe and whether and to what extent the doctrine should be limited by exceptions. While sovereign immunity is widely criticized, both the federal and state governments continue to retain certain aspects of the doctrine. Indian tribal governments may find it useful to do the same.

During this new decade, Americans will, and indeed must, become increasingly concerned about the preservation of open spaces and the maintenance of a habitable environment. The lack of adequate open space in metropolitan areas is already particularly disturbing. Despite years of planning and zoning, the few remaining open areas in American cities continue to succumb to developmental pressures. In some communities the existence of lakes constitutes an important exception to this history of failure. Lakes are natural open spaces and are more difficult to destroy, br encroach upon, than dry land areas, and, as such, they offer a special dimension of beauty, color, and recreational potential to metropolitan residents. But recently, even lakes have come to be damaged and destroyed, for population growth and investment potential have combined to attract the attention of developers, who are now commencing, with fills and buildings, to invade and diminish these natural open areas. To date the law has given little notice to this problem. In the past, lake law has been preoccupied with questions of consumptive use, and more recently with disputes between recreational users. Wide-spread filling and building over lake beds is still too recent a phenomenon for much case law to have developed; and, despite the quickening pace of such encroachments, and the increasing publicity given to the problem, urban planners and other officials have not yet taken the necessary remedial action. This lack of any articulated legal thinking on the topic, and our belief that regulation of lake surface invasions must begin soon, if it is ever to succeed, prompted us to investigate the problem. Here we will attempt to identify the more important issues and to suggest possible solutions.

Our primary focus is on small natural lakes, that are nonnavigable for title. Restriction of our discussion to lakes, of course, excludes water bodies too small to be labeled "lakes." No hard and fast definition of "lake" can be derived from the case law, but, intuitively, it is clear, that at some point, a water body will be obviously so small, shallow, or useless, that the established rules of lake law will not be applied The term "natural" also excludes artificial lakes, which present peculiar problems not necessarily resolvable in the natural lake context. We have examined primarily cases dealing with small non-navigable lakes; however, some of the same considerations are relevant to "navigable" lakes as well. That this is so is illustrated by the recent Washington decision in Wilbour v. Gallagher," where the supreme court required removal of a fill on a privately-owned portion of the bed of navigable Lake Chelan. This case plainly suggests that the "navigability" vel non of a lake for title purposes may, in the future, play a less important role in the field of lake law than it has in the past. Nevertheless, the traditional differential treatment accorded to navigable and nonnavigable lakes does persist, and this article will center on. the nonnavigable lakes

This article describes the recent Federal Republic of Germany effluent charge law and the political and legal background that permitted this law to be enacted. The impact of that law is assessed, although the assessment is necessarily tentative in view of the short experience with the law to date. The economic and legal implications of enacting an effluent charge law in the United States also are analyzed. Included in this discussion are the advantages and disadvantages of state vs. federal enactment, the constitutional objections that might be raised to such a law, and how it might be coordinated with existing water pollution control laws in the United States.