The Contemporary Methodology for Quantifying Reserved Instream Flow Water Rights to Support Aquatic Habitat

Since time immemorial, indigenous people have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual needs. Accordingly, tribal people-particularly those in the region now called the Northwestern United States-placed singular emphasis on preserving their traditional subsistence culture when negotiating with the United States during the reservation era. Although rarely expressed in these treaties, the tribes are nonetheless entitled to water rights sufficient to fulfill these traditional subsistence treaty rights. Of the suite of water rights to maintain traditional uses of water, likely the most commonly claimed is for water to maintain fish habitat. A companion article in this same issue explores the evolution of the methodology for quantifying these water rights, which has slowly converged on the Instream Flow Incremental Methodology (IFIM) and its component part, the Physical Habitat Simulation Model (PHABSIM) methodology. The purpose of this Article is to provide an explanation of the current IFIM/PHABSIM methodology to put practitioners in the position to understand and meaningfully apply the method

Cultural Linguistics and Treaty Language: A Modernized Approach to Interpreting Treaty Language to Capture the Tribe\u27s Understanding

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one\u27s identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are land based. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge and from the power to make decisions within their homelands has proven a detriment to the land, waterways, flora and fauna, and human beings. Nowhere would tribal peoples have agreed to our own destruction, it is and has been a forced hand. This Article explores the changing interpretation of the U.S. Supreme Court canon to construe treaties with Native American tribes as the tribe would have understood them, and why mere translation of Native language to English fails to capture a Native understanding. Through the juxtaposition of western legal analysis and the powerful voice of a Native scientist, this Article illustrates how difficult and yet how necessary it will be to bridge that divide if this powerful western nation is to fulfill its sacred promises to Native people. As a contribution to the Issue on the fiftieth anniversary of United States v. Oregon, this Article looks to the future of federal jurisprudence on the interpretation of treaties with American Indians and envisions one in which reconciliation through an understanding of different worldviews is possible

A Familiar Crossroads: McGirt v. Oklahoma and the Future of the Federal Indian Law Canon

Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in Federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, Federal Indian law makes up an inextricable part of American rule of law. Despite its importance, Federal Indian law follows a long and circuitous road that requires wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years. That road has long oscillated between two poles, with the Supreme Court sometimes applying foundation principles that view tribes as sovereigns retaining all their original natural rights, and at other times treating tribes as mere wards subject to a [self-imposed] guardian. The Supreme Court\u27s respect for tribal sovereignty and self-determination reached its zenith in the so-called modern era of Federal Indian law, spanning from 1959 through the late 1970s. During this era, the Court tended to adhere to federal Indian jurisprudence and solidified a relatively coherent doctrine based upon the foundation principles developed in the 1830s. The late Dean David Getches described the modern era as a time that encouraged a reinvigoration of tribal governments throughout the country. During this period, tribes gained political influence and economic security as [the federal government] generally promoted a policy of tribal self-determination. The Court turned away from its foundation Indian law principles with the onset of the 1980s, and the departure intensified as Chief Justice William Rehnquist was appointed chief justice in 1986. Since then, the touchstone of the Supreme Court\u27s federal Indian jurisprudence has been to employ a subjectivist approach whereby it gauges tribal sovereignty as a function of changing conditions demographic, social, political, and economic and the expectations of non-Indians that may be potentially impacted by the exercise of tribal power. These cases have invariably involved fear-based concerns that a decision in favor of the tribes will alter the settled balance of power between tribes, states, and non-Indians As a result, the Supreme Court became a strikingly hostile place for American Indian tribes as the Court became increasingly willing to divest tribes of governmental powers, not by upholding the enactments of Congress, but through its own interpretation of what tribal inherent governmental rights ought to be. The appointment of Justice Sonia Sotomayor and, more recently, Justice Neil Gorsuch seems to have brought change to the Court\u27s direction in Indian law cases. Since then, cases have been consistently decided in favor of tribal litigants by reaffirming treaty rights through the application of foundation principles that focus on the plain language of treaties and the application of the Indian law canons of construction. However, to be sure, even the Rehnquist Court did recite[] and sometimes act[] upon foundation principles, but those cases were limited to situations where non-Indian interests [were] not seriously threatened. All of Indian Country waited for, or perhaps dreaded, a true litmus test. That test came to the Supreme Court in the form of two Indian law cases--Sharp v. Murphy and McGirt v. Oklahoma--both of which were framed by non-Indian parties to affect the interests of an estimated 1.8 million people in the eastern half of Oklahoma. Ready or not, Indian Country found its test case, which squarely placed the Court\u27s competing jurisprudential philosophies--its foundation principles and its subjectivist approach--on a collision course. In a powerful and uncharacteristically passionate decision, Justice Gorsuch wrote for a 5-4 majority, upholding treaty-based rights to re-recognize the historic reservation boundaries of the Muscogee (Creek) Nation, the fourth largest Indigenous nation in the United States. The decision was the fourth consecutive treaty rights victory and seemed to solidify a shift toward a consistent approach rooted in foundation principles. The victory could be short-lived. Just weeks after the Court\u27s decision in McGirt, Justice Ruth Bader Ginsburg passed away, once again shifting the make-up of the United States Supreme Court. As a result, Federal Indian law once again finds itself at a crossroads. The Murphy and McGirt decisions are landmark decisions that bring change to the legal landscape of much of Oklahoma. It remains to be seen whether the perceived new Supreme Court era in Indian law is here to stay

The Legislative History of the McCarran Amendment: An Effort to Determine Whether Congress Intended for State Court Jurisdiction to Extend to Indian Reserved Water Rights

The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise. The Supreme Court, in what has been called a clear example of judicial legislation, interpreted that language to grant state court jurisdiction for the determination of Indian reserved water rights. In so doing, the Court abandoned the deeply rooted federal policy of leaving Indians free from state jurisdiction and control, and has subjected the tribes to hostile [state court] forums in which [the tribes] must be prepared to compromise their [water right] claims. The purpose of this Article is to examine the legislative history of the McCarran Amendment-the available Congressional Record, the Senate Report, as well as the Hearing Minutes--in an effort to ascertain whether it was Congress\u27s intent to include Indian reserved water rights within the scope of the McCarran Amendment. The legislative history indicates that the McCarran Amendment was meant to be interpreted narrowly, not broadly. It demonstrates that the Senators\u27 actual concern had not to do with federal reserved water rights but instead that the United States, acting in a proprietary rather than sovereign capacity, had been acquiring an ever-increasing number of state law water rights but was refusing to enter state court proceedings to either adjudicate or administer those rights. As the presence of the federal government increased in the river basins of the West, the proponents of the McCarran Amendment became increasingly alarmed that federal claims of sovereign immunity would effectively preclude state courts from enforcing state water law, thereby causing the years of building the water laws of the Western States . . [to] be seriously jeopardized Far from a general waiver, the legislative history reveals that the sponsors of the McCarran Amendment intended to address only this narrow but politically explosive problem where the United States was claiming a \u27privilege of immunity that the original owner wouldn\u27t have. Indian reserved water rights, which are reserved by the federal government in its sovereign capacity for the benefit of Indian tribes that have sovereign immunity independent of the United States, do not appear to have been considered or intended to be included by Congress as the McCarran Amendment was passed into law

The Historical Evolution of the Methodology for Quantifying Federal Reserved Instream Water Rights for American Indian Tribes

From the earliest days of their relationship with the United States, the tribes from the region today referred to as the Northwestern United States have been steadfast in their effort to protect the land, waters, plants, and animals of their traditional homelands. That effort is not coincidental; North America\u27s indigenous people have a singular relationship to the environment they have been a part of for millennia. In particular, they have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual sustenance. As a result, through litigation, restoration, and conservation management, tribes have focused on maintaining a good environment for culturally important aquatic species. This Article-a companion to another in this Issue that addresses contemporary methodologies-focuses on but one part of that monumental effort: the historical development of the methods used to ensure adequate quantities of water remain in streams to maintain a healthy habitat for aquatic species