Jul 29, 2013

Indian Treaty Law Expert: Adverse Effect on Treaty-protected Species Dooms Mine

Getches, Wilkinson, Williams and Fletcher's
Cases and Materials on Federal Indian Law
Charles F. Wilkinson, arguably the leading legal expert on native American treaties who literally wrote the book on Federal Indian Case Law, and wrote and edited numerous other treatises on federal Native American law, offered his comments on the Lac Courte Oreilles' efforts to halt the proposed Gogebic Taconite mine in an e-mail received moments ago.

Professor Wilkerson is the Distinguished Professor, Moses Lasky Professor of Law at the University of Colorado Law School, and most recently primary author of the Cases and Materials on Federal Indian Law, (6th ed. 2011) (with David H. Getches, Robert A. Williams, Jr. and Matthew L. M. Fletcher)

Wilkerson's brief e-mail appears to indicate that because Republicans have admitted they expect environmental damage in the very text of bill, the mine likely will have to be revised or abandoned when challenged in light of Native American treaties.

[See Charles Pierce's Wisconsin INC: "The bill reflects the reality of mining. There are going to be some impacts to the environment above the iron ore body," said (Sen. Tom) Tiffany, R-Hazelhurst.]
Reads Prof. Wilkinson's e-mail:

This iron mine complex cannot go ahead without a full analysis of the treaty rights of the Lac Courte Oreilles (LCO) band. More than a century and a half ago, the LCO negotiated treaties that guaranteed tribal members the right to hunt and fish on their former lands. The transfer of those lands by the tribes has been of great benefit to the non-Indians of northern Wisconsin but the courts have squarely recognized that, in return, those promises must be honored. Earlier this year a federal judge in Washington State ruled, under similar circumstances, that the treaties require more than just allowing tribal members to hunt and fish—the treaties also require healthy habitat so that the species can thrive.

And, so, the question is: 'Will this mining complex adversely affect the habitat of treaty-protected species?' If so, the proposed mining project will have to be revised or abandoned.

Charles Wilkinson
Moses Lasky Professor of Law
University of Colorado Law School

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