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Author: Michael C. Blumm
Publisher:
ISBN:
Category :
Languages : en
Pages : 96
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Book Description
Nineteenth century treaties promised Pacific Northwest Indian tribes the right of taking fish in common with the citizens... The meaning of those ten words has produced numerous court decsions in the ensuing century-and-a-half, including a half-dozen from the U.S. Supreme Court. This article explores that case law, and in particular explains how the treaty fishing right evolved from a right to access historic fishing ground (an easement), to a right to be free from state licensing fees and discriminatory regulation (a negative servitude), to a right to an equal harvest share (also a negative servitude, since it restricts non-Indian harvests).An unresolved issue is whether the treaty fishing right protects the habitat necessary to sustain the fish that were the subject of the treaty promise. A quarter-century ago the tribes filed suit, claiming that the treaties implicitly protected fish habitat necessary to make meaningful their treaty-guaranteed right, which the Supreme Court interpreted to be a livelihood, that is to say a moderate living. Although a district court agreed with the tribes, the Ninth Circuit ducked the issue and vacated the lower court decision, due to the fact that it was issued in the absence of a concrete factual dispute.This article argues that, despite the Ninth Circuit's evasion, there is a good deal of case law suggesting that such a right to habitat protection exists, surveying cases involving dams, water rights, timber harvests, and other water-related development projects. The article then attempts to sketch how such a right would function in practice, drawing on pertinent case law and an executive order. The article concludes that the treaty fishing right should be interpreted as a profit a prendre, a venerable real property interest, in this case a piscary profit. Profit-holders may enjoin activities unreasonably interfering with the exercise of the profit, and the article maintains that courts should use this standard to protect the treaty fishing right from habitat damage that interferes with tribal fishing livelihoods.
Author: Michael C. Blumm
Publisher:
ISBN:
Category :
Languages : en
Pages : 96
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Book Description
Nineteenth century treaties promised Pacific Northwest Indian tribes the right of taking fish in common with the citizens... The meaning of those ten words has produced numerous court decsions in the ensuing century-and-a-half, including a half-dozen from the U.S. Supreme Court. This article explores that case law, and in particular explains how the treaty fishing right evolved from a right to access historic fishing ground (an easement), to a right to be free from state licensing fees and discriminatory regulation (a negative servitude), to a right to an equal harvest share (also a negative servitude, since it restricts non-Indian harvests).An unresolved issue is whether the treaty fishing right protects the habitat necessary to sustain the fish that were the subject of the treaty promise. A quarter-century ago the tribes filed suit, claiming that the treaties implicitly protected fish habitat necessary to make meaningful their treaty-guaranteed right, which the Supreme Court interpreted to be a livelihood, that is to say a moderate living. Although a district court agreed with the tribes, the Ninth Circuit ducked the issue and vacated the lower court decision, due to the fact that it was issued in the absence of a concrete factual dispute.This article argues that, despite the Ninth Circuit's evasion, there is a good deal of case law suggesting that such a right to habitat protection exists, surveying cases involving dams, water rights, timber harvests, and other water-related development projects. The article then attempts to sketch how such a right would function in practice, drawing on pertinent case law and an executive order. The article concludes that the treaty fishing right should be interpreted as a profit a prendre, a venerable real property interest, in this case a piscary profit. Profit-holders may enjoin activities unreasonably interfering with the exercise of the profit, and the article maintains that courts should use this standard to protect the treaty fishing right from habitat damage that interferes with tribal fishing livelihoods.
Author: Michael C. Blumm
Publisher:
ISBN:
Category : Fishes
Languages : en
Pages : 107
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Book Description
Author: Michael C. Blumm
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a "servitude upon every piece of land." We have described this servitude as a "piscary profit," a familiar property right at common law that must be exercised free from unreasonable interference. While the universally shared assumption at the time the treaties were signed was that the salmon resource was inexhaustible, in fact the salmon have been in precipitous decline since the late-1800s. This scarcity bred conflicts, which have forced the tribes to enforce their treaty fishing right in the courts for over a century. This article explores the history and contours of the treaty fishing right from 1905 to present, tracing the evolution of the federal courts' understanding that implied within the fishing right is a right of access, a right to a fair share of the salmon harvest, and a right of habitat protection. In particular, the article examines the 2007 Culverts Case, in which Judge Ricardo S. Martinez resoundingly affirmed that the treaty fishing right prohibits habitat-damaging activities that preclude tribes from earning a moderate living through fishing-in this case, the state of Washington's construction and maintenance of fish passage-blocking culverts. The article concludes that not only is Judge Martinez's decision the logical progeny of over a century's worth of precedent, the result is consistent with common law principles of profits. In the end, the Martinez Decision represents the most important treaty fishing rights decision in decades, with the potential to rectify a fundamental unfairness in treaty fishing rights law, which previously provided access to fisheries, allocated harvest shares, and yet allowed destruction of the salmon resource, the central consideration of one of the largest real estate transactions in history.
Author: Hillary M. Hoffmann
Publisher: Cambridge University Press
ISBN: 110862457X
Category : Law
Languages : en
Pages : 179
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Book Description
In A Third Way, Hillary Hoffmann and Monte Mills detail the history, context, and future of the ongoing legal fight to protect indigenous cultures. At the federal level, this fight is shaped by the assumptions that led to current federal cultural protection laws, which many tribes and their allies are now reframing to better meet their cultural and sovereign priorities. At the state level, centuries of antipathy toward tribes are beginning to give way to collaborative and cooperative efforts that better reflect indigenous interests. Most critically, tribes themselves are building laws and legal structures that reflect and invigorate their own cultural values. Taken together, and evidenced by the recent worldwide support for indigenous cultural movements, events of the last decade signal a new era for indigenous cultural protection. This important work should be read by anyone interested in the legal reforms that will guide progress toward that future.
Author: Michael D. McNally
Publisher: Princeton University Press
ISBN: 0691190909
Category : History
Languages : en
Pages : 400
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Book Description
"In 2016, thousands of people travelled to North Dakota to camp out near the Standing Rock Sioux Reservation to protest the construction of an oil pipeline that is projected to cross underneath the Missouri River a half mile upstream from the Reservation. The Standing Rock Sioux consider the pipeline a threat to the region's clean water and to the Sioux's sacred sites (such as its ancient burial grounds). The encamped protests garnered front-page headlines and international attention, and the resolve of the protesters was made clear in a red banner that flew above the camp: "Defend the Sacred". What does it mean when Native communities and their allies make such claims? What is the history of such claim-making, and why has this rhetorical and legal strategy - based on appeals to religious freedom - failed to gain much traction in American courts? As Michael McNally recounts in this book, Native Americans have repeatedly been inspired to assert claims to sacred places, practices, objects, knowledge, and ancestral remains by appealing to the discourse of religious freedom. But such claims based on alleged violations of the First Amendment "free exercise of religion" clause of the US Constitution have met with little success in US courts, largely because Native American communal traditions have been difficult to capture by the modern Western category of "religion." In light of this poor track record Native communities have gone beyond religious freedom-based legal strategies in articulating their sacred claims: in (e.g.) the technocratic language of "cultural resource" under American environmental and historic preservation law; in terms of the limited sovereignty accorded to Native tribes under federal Indian law; and (increasingly) in the political language of "indigenous rights" according to international human rights law (especially in light of the 2007 U.N. Declaration of the Rights of Indigenous Peoples). And yet the language of religious freedom, which resonates powerfully in the US, continues to be deployed, propelling some remarkably useful legislative and administrative accommodations such as the 1990 Native American Graves Protection and Reparation Act. As McNally's book shows, native communities draw on the continued rhetorical power of religious freedom language to attain legislative and regulatory victories beyond the First Amendment"--
Author: Serra J. Hoagland
Publisher: JHU Press
ISBN: 142144657X
Category : Nature
Languages : en
Pages : 432
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Book Description
"The editors have brought together a volume of papers and essays written by tribal fish and wildlife managers and researchers about the work they do. This book will help wildlife professionals and conservationists in private and public sectors draw lessons from the expertise of indigenous peoples in North America, and advise them on how best to incorporate long-established successful Native methods in their own practices"--
Author: Wade Davies
Publisher: Scarecrow Press
ISBN: 0810862360
Category : History
Languages : en
Pages : 649
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Book Description
American Indian Sovereignty and Law: An Annotated Bibliography covers a wide variety of topics and includes sources dealing with federal Indian policy, federal and tribal courts, criminal justice, tribal governance, religious freedoms, economic development, and numerous sub-topics related to tribal and individual rights. While primarily focused on the years 1900 to the present, many sources are included that focus on the 19th century or earlier. The annotations included in this reference will help researchers know enough about the arguments and contents of each source to determine its usefulness. Whenever a clear central argument is made in an article or book, it is stated in the entry, unless that argument is made implicit by the title of that entry. Each annotation also provides factual information about the primary topic under discussion. In some cases, annotations list topics that compose a significant portion of an author's discussion but are not obvious from the title of the entry. American Indian Sovereignty and Law will be extremely useful in both studying Native American topics and researching current legal and political actions affecting tribal sovereignty.
Author: Eric T. Jones
Publisher:
ISBN:
Category : Business & Economics
Languages : en
Pages : 478
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Book Description
A quiet revolution is taking place in America's forests. Once seen primarily as stands of timber, our woodlands are now prized as a rich source of a wide range of commodities, from wild mushrooms and maple sugar to hundreds of medicinal plants whose uses have only begun to be fully realized. Now as timber harvesting becomes more mechanized and requires less labor, the image of the lumberjack is being replaced by that of the forager. This book provides the first comprehensive examination of nontimber forest products (NTFPs) in the United States, illustrating their diverse importance, describing the people who harvest them, and outlining the steps that are being taken to ensure access to them. As the first extensive national overview of NTFP policy and management specific to the United States, it brings together research from numerous disciplines and analytical perspectives-such as economics, mycology, history, ecology, law, entomology, forestry, geography, and anthropology—in order to provide a cohesive picture of the current and potential role of NTFPs. The contributors review the state of scientific knowledge of NTFPs by offering a survey of commercial and noncommercial products, an overview of uses and users, and discussions of sustainable management issues associated with ecology, cultural traditions, forest policy, and commerce. They examine some of the major social, economic, and biological benefits of NTFPs, while also addressing the potential negative consequences of NTFP harvesting on forest ecosystems and on NTFP species populations. Within this wealth of information are rich accounts of NTFP use drawn from all parts of the American landscape—from the Pacific Northwest to the Caribbean. From honey production to a review of nontimber forest economies still active in the United States—such as the Ojibway "harvest of plants" recounted here—the book takes in the whole breadth of recent NTFP issues, including ecological concerns associated with the expansion of NTFP markets and NTFP tenure issues on federally managed lands. No other volume offers such a comprehensive overview of NTFPs in North America. By examining all aspects of these products, it contributes to the development of more sophisticated policy and management frameworks for not only ensuring their ongoing use but also protecting the future of our forests.
Author: Charles Sampford
Publisher: Routledge
ISBN: 1317135466
Category : Law
Languages : en
Pages : 310
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Book Description
This book explores the application of concepts of fiduciary duty or public trust in responding to the policy and governance challenges posed by policy problems that extend over multiple terms of government or even, as in the case of climate change, human generations. The volume brings together a range of perspectives including leading international thinkers on questions of fiduciary duty and public trust, Australia's most prominent judicial advocate for the application of fiduciary duty, top law scholars from several major universities, expert commentary from an influential climate policy think-tank and the views of long-serving highly respected past and present parliamentarians. The book presents a detailed examination of the nature and extent of fiduciary duty, looking at the example of Australia and having regard to developments in comparable jurisdictions. It identifies principles that could improve the accountability of political actors for their responses to major problems that may extend over multiple electoral cycles.
Author: Ricardo Gomez
Publisher: Ethics International Press
ISBN: 1804412414
Category : Social Science
Languages : en
Pages : 249
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Book Description
This book is about the lived experiences of first-generation Latino and Latina (Latinx) students going to college in Washington state, combined with an analysis of immigration enforcement practices. The experiences of resilience and creativity exhibited by Latinx students offer a stark contrast with the human rights violations by law enforcement agents, whose collaboration with immigration enforcement is against the law in Washington state. The book explores the work of the University of Washington Center for Human Rights, particularly its work to defend and promote immigrants’ rights in Washington state. The Center documents the collaboration and information sharing of local and state law enforcement with federal immigration enforcement agencies, which predominantly target Latinx communities in Eastern Washington. Since such collaboration and information sharing is now illegal under Washington state laws, the findings of the work of the Center for Human Rights can be used by frontline human rights organizations in Washington state to advocate for stronger compliance by local and state law enforcement, and stronger protection of immigrants’ rights. In addition to documenting the work of the Center for Human Rights, this book offers a collection of oral histories from UW students or alumni from Eastern Washington who self-identify as Latinx. Latinx is a gender-neutral term for individuals who descend from Latin American ancestry and culture. These Latinx stories offer a glimpse of the rich lived experiences in some of the communities that suffer the racial profiling and abuses of immigration enforcement. These are the communities of migrant farmworkers that tend and harvest the fruits and agricultural produce of Washington, the communities of origin of many of the students at the University of Washington.
