Suchergebnisse

This essay tells the story of the struggle by upper Ahtna people to protect their way of life and their access to a traditional fishery in modern Alaska. Because of the perseverance of Katie John, Doris Charles, other Ahtna people, and the larger Alaska Native community, their right to fish at a traditional fishing site survives. It is a battle that continues to this day––after nearly thirty-five years of litigation in various forums and in successive related cases that illustrate the complex legal and political issues. The rich history, culture, and modern activism of the Ahtna people motivate the litigation to protect an important local fishery, and along with it, the subsistence fishing rights of all rural Alaska Natives. The latest legal chapter is centered on a peculiar case about a moose hunter, a hovercraft, and the jurisdiction of the National Park Service over navigable waters within the boundaries of Park units. This also is a story that will never end, for population pressures, commercial fishing interests, government indifference, and hostility forever have the potential to diminish or undermine longstanding rights.

This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government's moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part III. Part IV reviews the Dakota Access Pipeline controversy and the shortcomings of federal law in protecting tribal reservations and resources. Part V concludes with recommendations for enhanced and improved access to justice as well as substantive changes in the law to advance environmental protection for Indian tribes in the United States.

This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government's moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part III. Part IV reviews the Dakota Access Pipeline controversy and the shortcomings of federal law in protecting tribal reservations and resources. Part V concludes with recommendations for enhanced and improved access to justice as well as substantive changes in the law to advance environmental protection for Indian tribes in the United States.

Ocean acidification will have profound effects on the entire human population and natural resources that depend in any way upon Earth's oceans and lakes. In turn, those effects will be even greater, and potentially catastrophic, for indigenous populations who rely on the seas for physical, cultural, and spiritual sustenance. While most research on carbon dioxide absorption from the atmosphere has focused on oceans and the resulting acidification, many believe that acidification levels also will also increase in the Great Lakes. Indian tribes in the Pacific Northwest and the Great Lakes regions share reliance on marine and freshwater resources, and many treaties contain provisions reserving off-reservation access to these resources. These treaties have consistently been interpreted as the Indians would have understood them, with any ambiguities interpreted in favor of the tribes. While many tribes have fought off incursions on their territories and treaty rights in particular cases, the threats from greenhouse gases and ocean acidification call for even greater efforts due to extensive tribal rights in affected waters and resources. This battle also requires a major effort on the part of the United States government.

The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in the settlement was the failure to provide statutory protections for the aboriginal hunting, fishing, and gathering rights extinguished by ANCSA. Moreover, while ANCSA did not directly address Alaska Native tribal status or jurisdiction, the Supreme Court interpreted the Act to terminate the Indian country status of ANCSA land. Subsequently, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) was adopted in 1980 to provide a subsistence priority for rural Alaska residents, but the approach contemplated in Title VIII failed due to the State of Alaska's unwillingness to participate. On the self-government front, state and federal courts have joined the federal Executive Branch and Congress in recognizing that Alaska Native tribes have the same legal status as other federally recognized tribes in the lower forty-eight states. The Obama Administration recently changed its regulations to allow land to be taken in trust for Alaska Native tribes, and thus be considered Indian country subject to tribal jurisdiction, and generally precluding most state authority. This article explains these developments and offers suggestions for a legal and policy path forward.

Ocean acidification will have profound effects on the entire human population and natural resources that depend in any way upon Earth's oceans and lakes. In turn, those effects will be even greater, and potentially catastrophic, for indigenous populations who rely on the seas for physical, cultural, and spiritual sustenance. While most research on carbon dioxide absorption from the atmosphere has focused on oceans and the resulting acidification, many believe that acidification levels also will also increase in the Great Lakes. Indian tribes in the Pacific Northwest and the Great Lakes regions share reliance on marine and freshwater resources, and many treaties contain provisions reserving off-reservation access to these resources. These treaties have consistently been interpreted as the Indians would have understood them, with any ambiguities interpreted in favor of the tribes. While many tribes have fought off incursions on their territories and treaty rights in particular cases, the threats from greenhouse gases and ocean acidification call for even greater efforts due to extensive tribal rights in affected waters and resources. This battle also requires a major effort on the part of the United States government. This essay describes the nature of Indian treaty rights and the federal-tribal relationship, shows how the United States has sometimes acted to protect Indian treaty rights, and argues that the United States must do more to protect and enhance environmental conditions that are causing ocean acidification. Tribal property rights secured by treaty, and the federal government's trust responsibility require serious protective action by the United States to stop the increase in ocean and freshwater acidification. Part II describes the federal-tribal relationship and the parameters of the federal trust responsibility. Part III reviews legal authority supporting federal litigation and administrative actions to protect Indian treaty rights to hunt, fish, and gather and to the habitat upon which those rights ...

In the seminal Indian water rights case, Winters v. United Slates (1908), the Court posed this question: "The Indians had command of the lands and the waters-command of all their beneficial use, whether kept for hunting, 'and grazing roving herds of stock,' or turned to agriculture and the arts of civilization. Did they give up all this?" The Court's answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to protect their water resources from loss to non-Indian use, they also deploy their inherent governmental authority through tribal water codes and the federal Clean Water Act to protect water quality. As competition for water resources grows and development pressures adversely affect water quality, Indian Nations and their neighbors face new challenges in defining Indian water rights for instream habitat protection and traditional consumptive uses. This article reviews the nature of Indian water rights—both on and off reservations—and the use of tribal sovereignty to protect those rights in terms of quantity and quality. The case law in this arena is sparse, and the ability to predict an all-or-nothing litigated outcome is correspondingly limited. Under these circumstances, parties would be best off to default to the usual presumptions recognizing inherent tribal authority over on reservation water resources and state authority outside of Indian country. From this jurisdictional baseline, tribes, states and the United States should cooperate to ensure that a given regulatory regime protects water quality and access to water.