FALL ISSUE 2020
BY: NATHAN FRISCHKORN
In 2017, the Ninth Circuit Court of Appeals held that culverts installed by the state of Washington which reduce the habitat of treaty-protected salmon violate the treaty rights of Tribes in western Washington. That decision—part of the long-running United States v. Washington litigation—has since become known as the “Culverts Case.” Broadly, that decision essentially holds that habitat protection is a component of treaty-protected rights to hunt, fish, and gather. This Article analyzes what habitat protection as a treaty right would mean for the water-based, treaty-protected resources—such as fish and manoomin (wild rice)—of the Anishinaabe Tribes in Minnesota, Wisconsin, and Michigan. This Article describes relevant treaties to determine what water-based resources those Tribes have treaty rights to, and analyzes relevant precedent that defines or limits the exercise or scope of those rights in state and federal courts. Through interviews with individuals who work with Tribes on issues pertaining to usufructuary rights, this Article identifies specific environmental threats to water-based treaty resources throughout the Great Lakes region. By analogizing those identified threats to the culverts at issue in United States v. Washington, this Article examines what habitat protection as a treaty right would mean in Anishinaabe Akiing.
BY: BENJAMIN CHAMPION
For 40 years, the Public Utility Regulatory Policies Act (PURPA) has served to encourage the diversification of energy sources within the electricity sector, specifically renewable energy technologies, through state-by-state rules enacted consistent with broadly flexible federal rules. More recently, as renewable energy costs have plummeted and the pace of new installations has skyrocketed, many have asked whether PURPA’s requirements have become too much of a burden on consumers in the long run. PURPA requires utility companies to purchase energy, without negotiating prices, from utility-scale independent renewable energy producers below a certain size. The past five years have seen a wave of states adjusting their PURPA rules in response to these concerns. The Federal Energy Regulatory Commission (FERC) also promulgated a new set of PURPA regulations as of July 2020 to radically reduce the scope of independent renewable energy producers who qualify under PURPA and the rates that they would receive.
This Note reviews the history of PURPA and its overall governance regime; explores state responses to controversies and identifies lessons that can be gleaned from the states as laboratories of policy innovation; and examines the implications of the new FERC PURPA regulations. It concludes that the examples of Michigan and North Carolina show that PURPA can play an important role in bringing together diverse stakeholders to develop creative win-win-win solutions to the challenges of a transforming electricity sector. This role for PURPA should not be abandoned by federal or state regulators without regulatory reforms with equal or greater potential to achieve similar creative solutions.
BY: JOY PARKER
Tribal advisory committees have the potential to be an effective mechanism to facilitate Tribal consultation and urban confer as part of the government-to-government relationship between Tribes and the federal government. This paper analyzes the Unfunded Mandated Reform Act (UMRA) intergovernmental exemption to the Federal Advisory Committee Act (FACA) as applied to Tribal advisory committees formed to advise federal agencies on policy that affects American Indian and Alaska Native (AI/AN) people. As such, this paper suggests that both Congress and federal agencies should implement Tribal advisory committees more broadly as an important communication tool in the fulfillment of the federal trust obligation to AI/AN people.
The federal duty to engage in Tribal consultation and urban confer stems from its trust obligation generally to AI/AN people both on and off the reservation. Tribal consultation is also mandated by statute, regulations, executive order, and case law. This paper illustrates the role Tribal advisory committees can play in facilitating effective Tribal consultation and urban confer.
This paper asserts that Washington representative organizations, both for Tribes and for urban Indian organizations, should be included on Tribal advisory committees handling relevant issues. Further, this paper argues that the membership of a Washington representative organization on a Tribal advisory committee does not violate the UMRA intergovernmental exemption to FACA when it shares or is designated to represent the interests of Tribes.