Visiting Speaker Barbara Cosens Talks Water Law, Indigenous Justice

On Monday night, Professor Barbara Cosens of the University of Idaho visited Colorado College to speak on “International Water Law and Indigenous Water Justice.”

Cosens began her talk by contextualizing the current fight for water rights within the long history of injustice against Native Americans. She cited the Columbia River Treaty of 1964, an agreement between the United States and Canada in which the two countries agreed to work together to develop the Columbia River for flood control and hydroelectric power. Because the best places to dam were in Canada, three dams were constructed there and one was built in the U.S. The U.S. paid $65 million for 60 years of flood control, and agreed that 50 percent of any additional hydropower produced belonged to Canada.

Professor Barbara Cosens presents on water law and indigenous justice. Photo by Jordan Ellison

Appointing operating entities to manage certain aspects of the Columbia River basin was a key part of the treaty. None of those appointed were from Native tribes. In fact, there was no involvement of Native Americans prior to the signing of the treaty in 1964. This would all change when Native Americans began looking into their rights and demanding that they are honored. The American Indian Movement (AIM) inspired many Native Americans to begin exercising their rights through civil disobedience. The case following Billy Frank Jr.’s arrest would lead to the Boldt Decision, which states that 50 percent of the fish caught annually in parts of the river to which Native Americans have claim belong to them.

Billy Frank Jr.’s case began the conversation on indigenous peoples’ water rights. Before the movement began, tribes were only consulted if their land and water would be affected. Consultation was understood by both the U.S. and Canada as a formality in which the tribes would be informed of decisions that would impact them regardless of whether or not they consented. The government no longer blatantly disregards the wishes of Native peoples. The policy now mandates free-prior informed consent, which means the federal government cannot move forward with anything that affects the lands and water of native people without their permission.

The review process for the Columbia River Treaty has already been reformed by the policy changes. “In the review process itself of the treaty, EPA and the Army Corps have put together a sovereign review team that includes five representatives from the 15 nations and one representative from each of the four states the basin encompasses,” Cosens stated. “This is a major change since the treaty was signed in 1964.” Although Canada has been slower in making such changes, progressive court decisions continue to give the process momentum.

Despite the positive progress, contemporary issues like the Dakota Access Pipeline (DAPL) have brought indigenous rights back into the national conversation. Concerning the DAPL, the Standing Rock Sioux Tribe have struggled to get the U.S. government to listen to their public outcry. While the pipeline does not run through Native land, the Sioux argue that the land in question was taken from them illegally in a 1868 treaty. They fear the pipeline will pollute water on neighboring Native land. The Obama administration suspended construction of the pipeline before President Donald Trump took office, but construction has since resumed following an executive order signed by Trump greenlighting the project. Peaceful protesters were forcibly removed from the area last week.

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