How do tribal nation’s treaties figure into climate change?

Over the years that Ray Fryberg Sr. has worked at the Tulalip Tribes Natural Resources Department, he’s watched climate change subtly reshape the region. Located near the cool waters of Puget Sound in Washington state, the tribe is actively dealing with the already-apparent transformation of traditional territories: eroding shorelines, raising spring tides, and warming waters that hurt salmon by pushing food sources north. “Climate change is an everyday topic in our office,” Fryberg says. “The tribes seem to be the last bit of a vanguard the environment has.” 

Environmental justice overlooked in Dakota pipeline saga, legal expert says

Monday, September 11, 2017

LAWRENCE — Even though there have already been leaks since oil began flowing through the Dakota Access Pipeline this spring, American Indian tribes still have a chance to stop it, according to a University of Kansas professor.

In her new article, “Environmental Justice: A Necessary Lens to Effectively View Environmental Threats to Indigenous Survival” — published in the Transnational Law & Contemporary Problems Journal — Elizabeth Kronk Warner writes that there are a number of bases under which affected American Indian tribes might reasonably challenge the pipeline in court. Kronk Warner is a professor at the KU School of Law and director of the school’s Tribal Law & Government Center.

A court has already ruled that the U.S. Army Corps of Engineers, the federal agency that approved and permitted a segment of the pipeline’s cross-country route, met the requirements of the National Historic Preservation Act and adequately consulted the Standing Rock Sioux Tribe as to that path, which brushes up against the tribe’s reservation.

But Kronk Warner writes that there are other issues over which the tribes might sue and prevail, including the basic unfairness of re-routing the pipeline away from the mostly white city of Bismarck, North Dakota, for fear of contaminating its water supply and toward the Standing Rock reservation.

“The environmental justice claim has not yet been fully adjudicated,” Kronk Warner said. “There are still cases ongoing.”

Then, too, Kronk Warner writes, there are legal issues related to the fact that American Indian tribes have national sovereignty.

It is well-established, she writes, that the federal government has a “trust responsibility” to American Indian tribes owing to the tribes’ “many cessions of both land and external sovereignty” in years past. Courts, she writes, have ruled that the federal government has “fiduciary obligations related to the management of tribal trust lands and resources” and that “statutes affecting Indians are to be construed liberally in favor of the Indians...”

Thus, under certain circumstances, “the federal government owes to Native nations a duty that it ensures natural resources are sustained.”

The pipeline, portions of which are buried below Lake Oahe and the Missouri River, threatens not only those water resources on which the tribes depend, but also land that was originally American Indian territory.

Kronk Warner devotes a section of her article to outlining the “Unique Tribal Connection to the Land and Environment,” stating that indigenous communities’ claims differ from others in that “indigenous cultures and traditions are tied to the environment in a manner that traditionally differs from that of the dominant society.” For American Indians, she writes, land is “the source of spiritual origins and sustaining myth which in turn provides a landscape of cultural and emotional meaning.”

If that weren’t enough, Kronk Warner writes, tribes opposed to the pipeline might challenge it based on international law. The U.N. Declaration on the Rights of Indigenous Peoples, which the United States has signed, provides guidance meant to preserve “indigenous self-determination,” she writes, including restitution or compensation “for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

Finally, Kronk Warner writes, the Standing Rock Tribe’s current case before the Washington, D.C., Court of Appeals questions whether the government adequately consulted the tribe under a nationwide system of water-crossing permits established under the Clean Water Act. Tribal representatives failed to appear at several scheduled meetings.

“The big takeaway from this is that even if you disagree with the method of consultation, you should show up,” Kronk Warner said.

Even so, Kronk Warner believes there are flaws in the consultation process involved in DAPL. She writes that the Army Corps’ Nationwide Permit No. 12, issued in 2012, “pre-approved construction without any consultation on the pipeline’s impacts on the tribe’s sacred sites.” “That permit authorized Dakota Access to make a unilateral determination of impacts and hence the tribe never had an opportunity to participate in the National Historic Preservation Act process except in a handful of areas.” The consultations that did occur “focused only on the narrow area of the Corps’ direct Clean Water Act jurisdiction, ignoring the pipeline route outside these jurisdictional areas,” she writes.

A challenge to the national permit might be a fruitful avenue for the tribes to pursue, Kronk Warner said.

“How do you engage in effective consultation with a nationwide permit?” Kronk Warner asked rhetorically. “I’d encourage tribes and municipalities to come together to push for an end to these nationwide permits for pipelines.”

Photo: Screenshot from "#NoDAPL - Water protector "Happi" American Horse in North Dakota" at about 0:09.

Native American Sovereignty: Should Indians have more control over their land?

"Native American lands contain $1.5 trillion in untapped coal, oil and other energy resources. The potential bounty is raising hopes among many Indians that energy development can help tribes reduce poverty on their reservations, where unemployment averages 19 percent. But development also is raising fears that it will threaten Indians' traditional way of life and harm the Earth. In addition, the dispute is raising tough questions among Indians, lawmakers and others about energy development and the limits of tribal sovereignty.

Who Owns Tradition? Reconceptualizing the Protection of Indigenous and Traditional Knowledge

"This Fall, the Spangenberg Centre on Law, Technology and the Arts will be holding its annual conference on the issue of Intellectual Property, Traditional Knowledge, and Folklore. Focusing on the international aspects of the issue with a US perspective, the conference seeks to revisit and re-examine the theoretical discomfort, and sometimes outright rejection of the possibility of protection of GR, TK and Folklore in mainstream intellectual property discourse in developed countries.

Law professor named 2016-17 KU senior administrative fellow

Thursday, August 04, 2016

LAWRENCE — The Office of the Provost has selected the 2016-2017 senior administrative fellows.

The program identifies and cultivates current and potential leaders already on the University of Kansas faculty. Now in its 24th year, the Senior Administrative Fellows Program was expanded to prepare even more tenured faculty for leadership at KU.   

“This year we had an extraordinary degree of interest in the program from faculty in disciplines across KU,” said Mary Lee Hummert, vice provost of faculty development. “We are fortunate to have so many faculty eager to learn more about academic leadership.”

The Senior Administrative Fellows Program offers tenured faculty interested in leadership roles the opportunity to see the nuts and bolts of administrative activities and responsibilities. In addition to learning more about major units of the university, fellows meet with KU’s senior leadership and take part in discussions surrounding academic leadership, public policy and the future of higher education.

“Previous participants in the program have gone on to administrative leadership positions at KU, so this level of interest bodes well for KU’s future,” Hummert said. “I look forward to working with this year’s fellows.”

The class of fellows is selected from applications solicited late in the spring semester of the previous academic year. This year to accommodate interest, two cohorts of fellows have been formed. 

2016-17 senior administrative fellows

Wednesday cohort

  • Jim Backes, professor, pharmacy practice; associate dean, School of Pharmacy
  • Caroline Bennett, associate professor, civil, environmental and architectural engineering; School of Engineering
  • Chris Brown, professor, environmental studies and geography; director of environmental studies, College of Liberal Arts & Sciences
  • Florence DiGennaro-Reed, associate professor and chair, applied behavioral science, College of Liberal Arts & Sciences
  • David Fowle, associate professor, environmental studies and geology; associate director of environmental studies, College of Liberal Arts & Sciences
  • Mugur Geana, associate professor, William Allen White School of Journalism & Mass Communications
  • Liz MacGonagle, associate professor, history, College of Liberal Arts & Sciences
  • Amy Mendenhall, associate professor, School of Social Welfare
  • Laura Mielke, associate professor and associate chair, English, College of Liberal Arts & Sciences
  • Jeremy Shellhorn, associate professor, design; associate dean, School of Architecture, Design and Planning
  • Eric Stomberg, professor, bassoon; associate dean, School of Music
  • Margot Versteeg, associate professor, Spanish & Portuguese, College of Liberal Arts & Sciences

Thursday cohort

  • Genelle Belmas, associate professor, School of Journalism
  • Nate Brunsell, professor and chair, geography and atmospheric science, College of Liberal Arts & Sciences
  • Stephanie Fitzgerald, associate professor, English; director of indigenous studies, College of Liberal Arts & Sciences
  • Chris Gamblin, professor, molecular biosciences, College of Liberal Arts & Sciences
  • Heidi Hallman, associate professor, curriculum & teaching, School of Education
  • Nicole Hodges Persley, associate professor and chair, theatre, School of the Arts, College of Liberal Arts & Sciences
  • Elizabeth Kronk Warner, professor and associate dean, School of Law
  • Michelle Johnson-Motoyama, associate professor and associate dean, School of Social Welfare
  • Paola Sanguinetti, associate professor and chair, architecture, School of Architecture, Design and Planning
  • Milena Stanislavova, professor, mathematics, College of Liberal Arts & Sciences
  • Mike Wehmeyer, professor, special education, School of Education; director, Bureau of Child Research
  • Bryan Young, associate professor, civil, environmental and architectural engineering; director, University Honors Program, College of Liberal Arts & Sciences

Hummert leads the program with Jenny Mehmedovic, executive associate to the vice provost for faculty development.

KU law students bring home championship in Moot Court competition

The University is used to acknowledging all sorts of championships in various sports, but another University team just brought home a championship in something a little less known.

Law students Ashley Akers, from Casper, Wyo., and Maureen Orth, from Prairie Villiage, earned first place last weekend at this year’s National Native American Law Students Association Moot Court Competition, which took place at Michigan State University.

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Native American judge considered for Supreme Court nomination

"The first Native American woman to be appointed to the federal bench is being discussed as a possible nominee for the Supreme Court. In 2014, Diane Humetewa was unanimously confirmed to become a judge for the U.S. District Court for Arizona.

If nominated, Humetewa would become the first Native American in the Supreme Court, a change that one University of Kansas law professor says would be helpful with the type of cases the court hears.

KU researchers say indigenous knowledge can be the key to combating climate change

"New research coming from the University of Kansas claims that indigenous knowledge is the key to fighting climate change.

Two researchers at KU explored a number of cases where indigenous communities adapted to and managed climate changes in their area. Researchers said with their knowledge, scientists can help apply those practices locally.

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