A Hell of a Complex: The Miscarriages of the Federal Hydropower Licensing Regime

What you are about to read is an illustration of systemic racism. Systemic racism is the current effects of statutes and policies developed through a singular and racially-charged narrative. The current hydropower relicensing regime fails to acknowledge the overarching Treaty-reserved rights of American Indian tribes while statutorily granting state and federal authorities the power to prescribe mandatory conditions on hydropower projects. This fact remains constant whether the hydropower project is within or outside a tribe’s reservation or aboriginal territory. Specifically, the Hells Canyon Complex, which rests along the Snake River, has had and continues to have enormous impacts on fisheries including blocking all fish migrations. The Hells Canyon Complex is currently under consideration for a new fifty-year operating license. This Complex resides inside the exclusive aboriginal territory of the Nez Perce Tribe and the geographical region that harbors the Tribe’s usual and accustomed fisheries. The Nez Perce Tribe devotes significant resources to protecting the existence of Salmonids. Accordingly, the Tribe continues to fight for fish passage in the Hells Canyon Complex. There is no question the Tribe will continue to pursue the actions necessary to protect and rebuild its Treaty-reserved fisheries. The Tribe’s Treaty-reserved fishing rights, which are the supreme law of the land under the United States Constitution, must be fully acknowledged and embraced. This strive for self-determination is the result of the paternalistic dialogue of American history, a narrative I hope allows you to recognize why systemic repair must take place

Interpretive Sovereignty: A Research Agenda

In federal Indian law, the treaty operates as our foundational legal text. Reflecting centuries-old historical political arrangements between Indian nations and the United States, treaties remain vital legal instruments that decide dozens of legal cases each year. Yet, these treaties--originally drafted in English by the federal government, following negotiations with tribal representatives who usually spoke their own languages--present a number of ambiguities for contemporary courts. The dominant model of treaty interpretation is one in which judges interpret treaties in a manner they they believe to reflect Indians\u27 understanding of treaty terms and, more generally, to promote the interests of Indian nations. While this liberal approach to treaty interpretation has secured a number of important Indian rights in the courts, it does not necessarily reflect the ways in which Indians actually perceived treaty terms in their own languages and cultures. Deeper investigation of treaty law reveals, however, that Indians have long been interpreting treaties for themselves. From their earliest encounters on the negotiating field to recent advocacy in the courts, Indians have, out of necessity or strategy, articulated what treaty provisions mean to them. Here I identify this much-overlooked practice as interpretive sovereignty and define it as the interpretation of treaties through the lens of tribal cultures, and more particularly, through tribal languages. The practice of interpretive sovereignty has particularly great potential today as a tribal language revitalization movement sweeps Indian Country. Interpretive sovereignty may have the power to transform historical understandings of treaties and help tribes forge contemporary legal approaches that reflect tribal norms and values. Beyond federal Indian law, attention to the role of language differences can inspire reflection on the interpretation of other legal texts. For these reasons, this Essay calls for research into the role of tribal languages in treaty interpretation and begins to contemplate some of the challenges associated with such work

State v. Wolfe Clerk\u27s Record v. 1 Dckt. 41750

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/6068/thumbnail.jp

Court cases related to administration of the range resource on lands administered by the Forest Service

Gerald W. Williams Collectio

The Controversy Over Permit-Exempt Wells in Washington

In a groundbreaking 2016 decision commonly referred to as the Hirst decision, the Washington State Supreme Court recognized the interrelationship between land use and water use. The Court held that the state’s Growth Management Act required local governments to protect water resources through measures ensuring that new development would not deprive senior water users of their water rights. The decision focused on development relying on permit-exempt wells. Permit-exempt wells reflect a pioneer mentality that encourages dispersed development by allowing rural property owners and developers to appropriate water without obtaining a permit. Permit-exempt wells are subject to the state law of prior appropriation, however, and the Court found that junior permit-exempt wells should not be allowed to deprive senior water users of their water rights. Hirst upheld four purposes of Washington State water law: (1) protecting existing, senior water users; (2) protecting the public interest in instream values; (3) protecting tribal water rights and tribal fisheries; and (4) enhancing the state’s ability to adapt to climate change. In contrast, a recent state legislative “fix” conflicts with all four of these water law goals and undermines the State’s ability to address present and future water shortage problems