Decolonising the Nile water agreements

The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international has an article by Fekade Abebe, "Exclusion vs Cooperation in the Utilisation of Transboundary Watercourses: The Case for Decolonising the Nile Water Agreements". The abstract:

The relationship between Egypt and Ethiopia was marked with tension for centuries due to the utilisation of the Nile river. Recently, it took a turn for the worst after Ethiopia announced it is building the Grand Ethiopian Renaissance Dam (GERD) on the Nile river. This article argues that one important explanation for the deep-seated disagreements between Egypt and Ethiopia is the history of the legal instruments frequently invoked which were set up to safeguard the colonial interest of Britain over Egypt and the entire upper Nile region. Britain’s use of these legal instruments to advance its colonial domination of the region, with disregard to the interests of native communities, had left a legacy of exclusive utilisation over the river which haunts the current legal discourse. The article argues that the Nile basin countries need to acknowledge this colonial legacy in the legal discourse and need to move towards cooperation.

Yellowstone at 150

Anna Price of the Library of Congress's In Custodia Legis recently posted on the 150th anniversary of the creation of Yellowstone National Park, the US's first. Price goes through the legislative history of the statute creating the park, as well as some of the legal issues that arose, including American Indian treaty rights and potential conflicts with settlers claiming preemption and homesteading rights. The latter issue, as the blog points out, also arose in the context of Yosemite Park in the 1872 US Supreme Court Case of Hutchings v Low (a.k.a. The Yosemite Valley Case).

poster designed by Don C. Powell (LOC)

Ecological consequences of Spanish colonialism

Last year's The Americas published an article by Christopher Woolley, "'The Forests Cannot be Commons': Spanish Law, Environmental Change, and New Spain's Council on Forests". The abstract:

This article examines the sylvan political ecology of late colonial New Spain and the colonial government's attempt to address deforestation through the Council on Forests, the first body in the kingdom's history dedicated to the conservation of natural resources. Drawing primarily from the corpus of documents produced by and remitted to the council, this article gives a trans-regional perspective on colonial forest use and argues that the Spanish crown's usurpation of indigenous communities' eminent domain over forests was the first step in a process that over centuries progressively severed the cultural ties that bound communities and forests by converting common-pool resources into open-access commons. The catastrophic mortality of the Spanish invasion was the second step, which rendered conservation measures seemingly unnecessary among both woodcutters and officials. But it was during the eighteenth century that older Habsburg notions of protectionism intersected with economic and political changes associated with Bourbon rule to further compel this cultural severance. While previous works have studied the ecological impacts of mining, ranching, and flood control, this article moves beyond the study of a single industry to suggest some of the larger ecological consequences of Spanish colonialism.

Forest in the Sierra Juarez, Oaxaca, Mexico (credit: Prsjl)

The Million-Dollar Duck

The American Historical Review recently published Miranda Johnson's "The Case of the Million-Dollar Duck: A Hunter, His Treaty, and the Bending of the Settler Contract". The abstract:

In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire.

Dene men gathered for Treaty Day at Fort Resolution, ca. 1924

Indigenous peoples, political economists and the tragedy of the commons

Next in our series on "The Tragedy of the Commons at 50" (the last post is here) is Michel Morin's "Indigenous Peoples, Political Economists and the Tragedy of the Commons". The abstract:

In “The Tragedy of the Commons,” Garrett Hardin implicitly moved from bounded commons — a pasture or a tribe’s territory — to the case of boundless commons — the ocean, the atmosphere and planet Earth. He insisted on the need for imposing limits on the use of these resources, blurring the difference between communal property and open access regimes. The success of his paper is due in great measure to his neglect of economic, scientific, legal  and anthropological literature. His main lifelong focus was on limiting population growth. He could have avoided the conceptual confusion he created by turning to well-known political economists such as John Locke and Adam Smith or, for that matter, jurists, such as Blackstone. Instead, he simply envisioned indigenous lands as an unbounded wilderness placed at the disposal of frontiersmen. Though he eventually acknowledged the existence of managed commons, he had little interest in community rules pertaining to resource exploitation. For him, these were simply moral norms which inevitably became ineffective after a community reached a certain level of population. He also took economists to task for failing to include in their analysis the true environmental and social costs of public decisions. Still, the famous example of the indigenous people of Northeastern Quebec illustrates a shortcoming of his analysis: community members did not act in total isolation from each other. On the contrary, communal norms could prevent an overexploitation of resources or allow for the adoption of corrective measures.

Beaver Hunting in Canada,
from Charles Theodore Middleton’s A New and Complete System of Geography…, after Chiedel, 1777-1778
(Library and Archives Canada)

Aboriginal water rights

Aboriginal men obtain water from mallee root at Yalata in South Australia, 1981
(National Library of Australia)

Peter D. Burdon, Georgina Drew, Matthew T. Stubbs, Adam Webster, and Marcus Barber recently posted "Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law". The abstract:

This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal system’s regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

From Charlottesville to Yosemite

The Ahwahnee Hotel in 1980 (George Rose)

Daniel Duane has an interesting piece in yesterday's New York Times on genocide of the Yosemite Valley's natives and the replacement of their names with Anglo ones, and it all starts from a trademark dispute. After detailing the killing and renaming of places in Yosemite carried out by California militia, Duane explains both the legal dispute and the complexity of the name issue:

The recent furor over the name of the Ahwahnee began in 2015, when a subsidiary of the Delaware North Corporation, which operated the park’s hotels, restaurants and shops for more than two decades under a government concession contract, lost its contract to Aramark (no tragedy there — the burgers were criminal). The government says Delaware North quietly registered the trademarks for the names on the hotel and the other places and is now demanding payment for their use. The National Park Service came up with new names and told Delaware North to get lost. Now there’s a federal lawsuit.

I dearly hope Delaware North loses, but I also hope that the National Park Service sticks with the new names, however ridiculous — and, while they’re at it, changes dozens of others. My vote would be to change Tenaya Lake to Pywiack Lake, relabel Yosemite Valley itself Ahwahnee and sprinkle the park with new historical plaques saying things like “On this spot, in 1851, American militiamen shot Tenaya’s son in the back, let him bleed out in the grass, then dragged Tenaya up to have a look and enjoyed watching him weep.” 

Indian water rights, federal water rights, and state courts

Ed Mendoza of the Gila River Indian Community, Arizona (photo: Monica Almeida/NYT)

Dylan Hedden-Nicely recently posted "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", published in Environmental Law. The abstract:

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’s 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’ 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 “privilege of immunity that the original owner wouldn’t 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.

For more on Indian water rights, see here.

Unraveling the racial context of property rights

Joseph Singer recently posted "Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest", an article relevant, I think, to those engaged with the history of law and the environment. The abstract:

John Marshall

The case of Johnson v. M'Intosh, 21 US 543 (1823), is taught in many property law classes and is the only information given to new law students about the property rights of Indian nations. However, the case is often misunderstood as denying title to those nations. A close reading of the opinion, in light of three later cases decided in the early 19th century, reveals that the Supreme Court intended to recognize "Indian title" while granting the United States a right of first refusal if tribes sought to sell property on the open market to non-Indians. Far from denying tribal property rights, Justice Marshall's opinion in this case, as explicated by later cases, actually sought to protect tribal title from expropriation by the United States unless the tribes voluntarily consented to the transfer of land.

While it is true that the opinion contains offensive and racist language, assumptions, and arguments, it is important not to ignore the ways in which the opinion sought to criticize, as well as justify, conquest and to put a halt to it in the future. Of course, history did not turn out that way but it did result in our current reality where conquest was incomplete. There are 567 federally-recognized Indian nations in the US and if property law professors teach students that conquest was complete and that tribes have no property rights in their land, those messages have current consequences for tribes trying to exercise sovereignty and property rights today. The truth is that Indian nations have both sovereignty and property rights over their lands and they do not have a mere license or "permission from the whites to occupy" (as the Supreme Court suggested in the 1955 case of Tee-Hit-Ton v. United States).

Both property law professors and scholars of federal Indian law should understand both the offensive racist reasoning in the decision and the ways in which the opinion represents one of the most pro-Indian nation decisions in the history of the Supreme Court. Treating the opinion as simply a racist relic of the past, like the Dred Scott decision, and nothing more, deprives Indian nations of the ability to use the case (and later cases like it) as a bulwark against further non-consensual deprivation of tribal property rights. And such a misreading of the case infects current politics by suggesting that tribes are being unreasonable when they seek to have their property rights be given equal respect to the property rights of non-Indians.

The importance of recognizing that federal law does protect tribal title can be seen easily if one simply considers the Standing Rock Sioux's opposition to a pipeline that threatens their ancient lands—lands that are currently protected both by tribal law, a treaty with the United States, and federal statutes and common law. Understanding Indian title as an estate in land that is every bit as powerful as the fee simple—as equally "sacred" in the words of the Supreme Court—is the message we should be sending to new lawyers, not the opposite.

The river as legal person

Whanganui River

H-Law's World Legal History Blog published this week Debjani Bhattacharyya's post, "Being, River: The Law, the Person and the Unthinkable". Some excerpts:

While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to  laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.

So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity.... 

Offshoring environmental law

The latest issue of Environmental History just arrived, leading with an environmental-legal history article, M.X. Mitchell's "Offshoring American Environmental Law: Land, Culture, and Marshall Islanders’ Struggles for Self-Determination During the 1970s". The abstract:

This article explores the impact of environmental law in US-controlled Micronesia. Historians have suggested that US environmental legislation and legal activism during the 1960s and 1970s often overlooked issues of environmental racism and injustice. This article establishes the importance of these emerging environmental laws for Marshall Islanders living under American rule and subjected to the harms of nuclear weapons testing. In 1972 the displaced people of Enewetak Atoll—a former nuclear test site—sued the United States hoping to stop a new program of conventional weapons testing on their badly contaminated ancestral atoll. The capacious concept of the environment used in the National Environmental Policy Act of 1969 and the statute’s ambiguous territorial reach offered islanders important new opportunities to articulate their environmental values and to further their struggles for self-determination over ancestral lands and waters. This article argues that environmental law transcended the artificial territorial boundaries between the United States and its Pacific dependencies, opening up an important new venue of negotiation and conflict over the scope and environmental footprint of US offshore power.

Test of hydrogen bomb at Enewetak, 1952

Treaty rights, fish harvesting, and toxic risk

Symbolic Petition of Chippewa Chiefs, presented at Washington, January 28, 1849,
headed by Oshcabawis of Monomonecau, Wisconsin

In the latest development on the history of Indian treaties and the environment (see also, for example, here and here), the new issue of Water History has an article by Valoree Gagnon, "Ojibwe Gichigami (“Ojibwa’s Great Sea”): an intersecting history of treaty rights, tribal fish harvesting, and toxic risk in Keweenaw Bay, United States". The abstract:

Ojibwe Gichigami (“Ojibwa’s Great Sea”) is the spirit name for Lake Superior; it is also the homeland of the Keweenaw Bay Indian Community (KBIC) where Gichigami fishing has sustained the people for nearly a millennia. As signatories to the 1842 Treaty With The Chippewa, the KBIC retain rights for hunting, fishing, and gathering, and worship within ten-million acres of ceded land and water territory. However, due to elevated levels of toxics such as methyl-mercury and polychlorinated-biphenyls (PCBs), Lake Superior is currently under numerous fish consumption advisories that inform the public of harmful contamination levels. Thus, harvesting provides socio-cultural and spiritual wellbeing for the KBIC, and simultaneously, places their physical health at great risk. By using ethnographic methods and oral histories, this article illustrates how an intersecting history of KBIC treaty rights, tribal fish harvesting, and toxic risk is the center of their water story. Over the course of several decades, they have encountered dire consequences due to federal assimilation policies, state regulatory control over their harvesting, and environmental degradation and contamination. KBIC present-day perspectives of toxic risk are rooted in this history. In 1971, the Michigan Supreme Court presented a landmark decision: the People v. Jondreau reaffirmed 1842 treaty rights for the KBIC. This precedential decision was followed by Great Lakes states issuing the nation’s first fish advisories. The KBIC historical context is imperative to understanding present day environmental policy and its relevance (or irrelevance) for those most at-risk, emphasizing how social injustices are manifested through a people’s water history.

More on Indian treaties

"Salmon Fishing at Chenook", James G. Swan,
in The Northwest Coast; Or, Three Years' Residence in Washington Territory, 1857

Yesterday we posted on Indian treaties in the northeastern US (and Canada); today it's the Northwest. Michael Blumm recently posted "Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration". The abstract:

In 1970, twenty-one tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington, claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes 1) a share of fish harvests for both cultural and commercial purposes, 2) inclusion of hatchery fish in that harvest share, and 3) protection of the habitat necessary to provide the fish that were the basis of the bargain which led to peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee convinced the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third, requiring a specific factual dispute. 

Some two decades later, in 2007, the tribes and the federal government convinced district judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting wholesale the state’s allegations. This article discusses the reasoning of both the district court and the Ninth Circuit and makes some assessment of the road ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity.

Squirrels, bears, and treaties

Black Squirrel, Stirling Ontario (Robert Taylor)

Loren Michael Mortimer recently posted at Early Canadian History on bear and squirrel migrations across the St. Lawrence River in the late 18th century:

In September of 1759, great armies were on the move through the upper St. Lawrence Valley. Not the military forces under the command of Montcalm and Wolfe en-route to their climactic showdown on the Plains of Abraham, but an army of black bears migrating en-masse southward from Canada into Britain’s Atlantic colonies. During that autumn, newspapers from New England and New York recorded a southern migration of bears, accompanied by an equally mysterious appearance of thousands of black squirrels. Bears were reported in the city of Boston for the first time in a century—a large bear “the size of small cow” was shot on a Boston wharf as it swam across the harbor from Dorchester Neck.

Bears were “spreading mischief” on colonial farms from the New England frontier to the lower Hudson Valley, devouring fields of “Indian corn” and destroying stocks of hogs, sheep, and calves. British army officers bemoaned frequent bear sightings near General Jeffery Amherst’s field headquarters on Lake Champlain. Newspapers printed lurid tales of a bear attacking and eating two children as they picked beans in a field in Brentwood, New Hampshire. One bear reportedly attacked a female colonist walking near her house, but only made off with the “hind part” of her gown. As much as these armies of marauding bears and squirrels vexed Anglo-American colonists, they provided a critical windfall for indigenous hunters residing beyond New England in the Canadian borderlands and the vast St. Lawrence watershed to the north. 

There's a legal angle to this, as well:

Resource extraction and property rights in Guyana

Joshua Bryant, Rainbow over a Plantation (Demerara, early 19th century)

Environment and History recently published Janette Bulkan's "'Original Lords of the Soil'? The Erosion of Amerindian Territorial Rights in Guyana". The abstract:

The consequences of State claims to, and controls over, the territories of Guyana's Indigenous Peoples (Amerindians) are traced through successive Dutch and British colonial to post-Independence governments. From the mid-eighteenth century, a numerically small sugar plantocracy wielded influence within local government and ensured that colonial policy served its interests located on the coastland. Hinterland policies extended the capitalist approach to natural resources extraction and favoured the dominance of the small stratum of monied interests over the majority of Crown licences for forestry, mining and ranching, which were superimposed on claimed Indigenous lands. The colonial governments' approach to Amerindians was protectionist, but the Amerindian land rights were not codified in law. Authoritarian post-Independence governments have used the discretionary power in the legislative framework inherited from the colonial times to expand the numbers of, and areas covered by, logging and mining licences. The State is aided by the lack of a participatory reservation process for forests and/or a formal settlement process to determine and codify pre-existing customary rights of Indigenous Peoples, twin processes that were instituted in the majority of British colonies. Indigenous rights and privileges on their customary lands have been steadily eroded in law, policy and practice. Amerindians receive few economic benefits from natural resources operations on either their legally titled communal lands or customary lands.

Indian water rights

Continuing coverage of the special issue of Western Legal History on Southern California water: Tanis Thorne's contribution is "Indian Water Rights in Southern California in the Progressive Era: A Case Study." Thorne writes:

The consensual opinion of water rights historians is that piecemeal legal transfer of Indian water rights to the non-Indian majority progressed unabated, decade after decade, throughout the arid American West. The water rights of Southern California Native people remained ill defined well into the twentieth century....

This study departs from the consensus position, which has argued that Indian water rights were ignored until the 1960s. In the case of the Capitan Grande Indian people of San Diego County in the early twentieth century, Indian rights were hardly ignored; they were, in fact, a subject of considerable importance to the federal government. In 1919, the El Capitan Act gave the city of San Diego the right to build the El Capitan Dam and create the El Capitan Reservoir as a city storage site. The transfer of Indian land, held under federal trust, required complicated local, state, and federal negotiations both in the 1910s and in 1932, when the El Capitan Act was amended. The Department of the Interior made a concerted effort to define and protect the Capitan Grande people's riparian rights using the state prior appropriation doctrine. The terms of transfer negotiated in 1919 anticipated  the quantification measures based on "practicably irrigable" acreage set in Arizona v. California.

Death Valley

I've been harping on the weather a lot lately, but it's at least a small comfort to know that it's probably hotter somewhere else. Like Death Valley. April's Environmental History had a review by Kevin Brown of Death Valley National Park: A History, by Hal K. Rothman and Char Miller (U. Nevada Press, 2013). Some excerpts:

Based on Rothman’s administrative history of the park written under contract with NPS in the early 2000s and then revised posthumously by Miller, this concise and well-researched volume shows how the agency repeatedly struggled to reconcile its evolving mission and legal obligations with the past human uses of the desert and ongoing social and environmental changes beyond the park’s borders. While many of the issues that confronted NPS in Death Valley have been considered in the extensive literature on the national parks, Rothman and Miller’s focused study is a reminder that when considering a bureaucratic agency largely defined by particular landscapes, it is important to note how the peculiarities of place help to create variations in policy.

Conflicts over existing claims to land and water within the park form a crucial part of Rothman and Miller’s work. Native Americans had lived in and around Death Valley for thousands of years, seasonally migrating through the region to take advantage of resources at a variety of elevations. At the founding of the national monument, those Timbisha Shoshone remaining in the park were “caught in limbo” and denied control over lands on which their lives had depended but to which they did not hold legal title (p. 69). Until the 1990s, when the Timbisha finally gained some measure of control over tribal lands in the park, this tension was reflected through NPS (shamefully) ignoring or exacerbating conditions of substandard housing at a community built near park headquarters in the 1930s.

*****

Rothman and Miller’s study also shows how the 1960s and 1970s reshaped the management of Death Valley’s natural and cultural resources. The suite of environmental laws passed in those decades collectively pushed NPS (sometimes reluctantly, sometimes willingly) to designate wilderness, establish protection plans for animals that had been in the park for a very long time (desert bighorn and pupfish), while also working to curtail those invasive species relatively new to the park (burros and tamarisk). NPS also belatedly began to take stock of its archeological sites and developed a plan for preserving historic structures. While some of these planning efforts have been successful, Rothman and Miller suggest that the growth and development of the Southwest has also brought new resource challenges to Death Valley, especially in the form of groundwater withdrawals, air pollution, and crime. 

The Kawbawgam Cases

Last year's Michigan Historical Review published Rebecca Mead's "The Kawbawgam Cases: Native Claims and the Discovery of Iron in the Upper Peninsula of Michigan" (also here). The article begins:

Charlotte Kawbawgam (Superior View)

The southern shore of Lake Superior is a beautiful but rugged and isolated region that inhibited early Anglo-American settlement and still poses significant challenges for its inhabitants. In 1840, seasonally nomadic groups of Algonkian-speaking Natives and the mixed-race peoples of the fur trade occupied the area, but after the discovery of valuable mineral resources the situation changed rapidly.... When the first Anglo-American surveying and prospecting parties came to the area, local Natives guided them to the fabulously rich deposits of the Marquette Iron Range but the prospectors shared little of the subsequent wealth. Charlotte Kawbawgam's story reveals, however, that Anglo-Americans did not always appropriate Native resources without gratitude or payment. Kawbawgam's efforts to obtain compensation from Jackson Iron Company for services rendered by her father Matji-gijig ("Bad Day") in locating the Marquette Iron Range culminated in three Michigan Supreme Court cases in the 1880s and a landmark decision.

The North Pacific Fur Seal Convention

Pelagic Fur-Seal Hunting off Akootan Pass, Bering Sea, (Harper's Weekly April 1892)

For those of is facing hot summer temperatures this July, thoughts of cooler climes: January's Environmental History published Robert Irwin's "Canada, Aboriginal Sealing, and the North Pacific Fur Seal Convention". The abstract:

The National Oceanic and Atmospheric Administration has described the 1911 North Pacific Fur Seal Convention as one of the ten most important events in environmental history. Article IV of this Convention provided First Nation sealers with harvest rights provided they conducted the hunt as practiced previously, without the use of firearms and not under contract to a commercial interest. While historians have studied the diplomatic and environmental aspects of the Convention, little attention has been paid to this Aboriginal harvest privilege. Its inclusion in the fur seal treaty inadvertently contributes to the modern “ecological Indian” construction and foreshadows the current environmental crisis faced by many First Nation communities: their harvest is acceptable provided it is considered primitive or traditional and noncommercial.

Indian fishing rights

Thanks to the History Carnival hosted this month at NiCHE, we learned of Stephanie Milne-Lane's recently posted "Go Fish", an interesting look at the history of Indian fishing rights in the American Northwest. This is obviously a fruitful topic (see, e.g., here and here). From the post:

Looking at an image of (renowned Washington governor) Isaac Stevens, two things come to mind. First, he has a striking resemblance to Brad Pitt. Second, he looks like a man that gets what he wants, come hell or high water. As the first Territorial Governor of Washington and the Superintendent of Indian Affairs, Stevens did get what he (and by extension President Franklin Pierce) wanted. Charged with securing the land and cooperation of local tribes, Stevens negotiated a series of treaties, procuring the legal rights to 64 million acres of land in less than a year. Exuding the nineteenth century belief that land not dedicated to traditional farming was going to waste, Stevens’ treaties carried the underlying belief that Native Americans needed to assimilate into general—white—American culture by living and farming on designated reservations. However, Stevens also included a safety net of sorts in his treaties. Native Americans negotiated one key phrase in all of the treaties: “right of taking fish at all usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.” In Stevens’ eyes, the phrasing eliminated the U.S. government’s obligation to supply food to the tribes during the transitional period from their traditional way of life to their lifestyle on reservations.[see Gabriel Chrisman, "The Fish-in Protests at Franks Landing"] His work complete, Stevens left the rain of the Pacific Northwest in 1857. However, his treaties and their phrasing would have long-standing implications. 

Isaac Stevens after his promotion to Brigadier General in 1861.

Committed to the yeoman farming ideal, many early American settlers concerned themselves with farming, logging, and mining, while Native Americans continued to fish at their usual and accustomed areas. However, by the turn of the 20th century the bountiful salmon and trout of the Evergreen State brought the issue of native fishing rights to the forefront. A tug-of-war between native fishing rights and entrepreneurial commercial fishing endeavors further strained already tense relationships, illuminating the muddied intentions of the state of Washington and prompting legal action.

More at SHRA's website.