The Yellowstone River ecosystem is breathtaking, unparalleled in its wonder and expanse. The river is the longest free-standing river in the United States. But, its transcendent beauty and abundance are threatened by overuse and climate change (rising temperatures, snowmelt, greater runoff, and reduced summer flows).
In Equity Along the Yellowstone, Professor Jason A. Robison laments the myriad of threats to the Yellowstone River, even as more than seventy-five years ago, an interstate compact was entered into for the asserted purpose of ensuring its future. The Yellowstone Compact is a domestic water treaty between Montana, Wyoming, and North Dakota. Ratified in 1951, the Compact aimed to establish a rational regime for allocating uses of the Yellowstone River that would avoid constant litigation in the Supreme Court. These negotiations took over two decades.
What concerns Professor Robison most about that Compact is the lack of equity in its fashioning and its implementation. Instead of fairness and evenhanded dealing—two of the usual components of equity (see Peter Charles Hoffer, The Law’s Conscience 7 (1990))—Professor Robison focuses on the marginalization of the basin tribes. These tribes include the Eastern Shoshone and Northern Arapahoe in Wyoming, and the Crow and Northern Cheyenne in present-day Montana. Their connections to the Yellowstone River go back to time immemorial. Their relationship is intergenerational, place-based, and extends beyond the River itself to the entire landscape encompassed by the River’s 71,000-square-mile basin.
Animating this article was Charles Wilkinson’s lament in The Eagle Bird: Mapping a New West (1992), where he stated that “we need to develop an ethic of place…. [which] respects equally the people of a region and the land, animals, vegetation, water, and air…. An ethic of place ought to be a shared community value and ought to manifest itself in a dogged determination to treat the environment and its people as equals, to recognize both as sacred, and to insure that all members of the community not just search for but insist upon solutions that fulfill the ethic.” [emphasis added.]
Ethics is said to refer to moral tenets or principles; the collective doctrines relating to the ideals of human conduct and character. It means imperatives regarding the welfare of others that are recognized as binding upon a person’s conduct, in a way different from the imperatives of law abidance. See Geoffrey C. Hazard Jr., Ethics in the Practice of Law 1–2 (1978).
Although the Compact, by its terms, strove toward some semblance of equity—specifically, “Equitable Division and Apportionment”—Professor Robison contends that this goal was unattainable. The necessary constituents and original claimants of the River’s bounty, the Native tribes, were excluded from the negotiations and the drafting. They were also afforded no role in the Compact’s administration.
Even as the Compact purported to protect “rights to the use of the waters of [the] Yellowstone River and its tributaries owned by or for Indians, Indian tribes, and their reservations,” those rights were not delineated, and the Compact contains no provisions for their enforcement. By necessity, equity is an evolving concept and must be seen in context as notions of right and justice have expanded over the time of human existence. Here, that context, Professor Robison suggests, is the changing attitudes and federal policies regarding Native tribes, from allotment to reorganization to termination—each era suggesting a different notion of the government’s treatment of and responsibilities toward the tribes.
Professor Robison claims that equity, as a norm, should look different in the 21st century than it did seventy-five years ago, when the prevailing attitude toward Native tribes was one of control and paternalism. He fears that construing or interpreting the Compact as relegating the basin tribes’ water rights to pre-1950 appropriative rights would indeed “affect adversely” their tribal water rights. To achieve true equity, Professor Robison turns to international water compacts for guidance. He points specifically to the 1997 U.N. Watercourses Convention, which calls for “equitable and reasonable utilization and participation.” The Convention identifies a non-exhaustive list of factors to be considered together, without assigning them any relative weight.
In the end, Professor Robison calls for equity, both procedural and substantive, as the new norm. By procedural equity, he means direct representation of each basin tribe, consistent with the federal policy of Native tribes’ self-determination as co-sovereigns, which involves principles of inclusivity and transparency. By substantive equity, he means that Native tribal rights to water must be given the highest priority, although in making the allocations, various factors should be relevant, including physical and climatic conditions, the rate of return flows, and wasteful uses, among others.
The impediments to reallocating and redesigning the Compact—whether through amendment, statutory law, memoranda of understanding, or rules and regulations—are not insubstantial, as he acknowledges. Even if political opposition could be overcome, the structure best suited to achieve fair governance might not be apparent until one approach has been tried and found wanting. Finally, an additional challenge remains: how should representatives of the Native tribes be selected?
The idea of treating Native peoples equitably seems uncontroversial in a broad philosophical sense. What resonates here, however, is the deep incongruity in the states’ actions. They entered into an agreement intended to protect a delicate, finite resource from their own excesses. Yet, they entirely omitted the interests of their neighbors—peoples whose claim to the resource predates recorded time, and for whom the water is not only essential to life but integral to their very identity. Alas, it seems in the current political climate, where the societal and economic focus is narrow and fixed on the immediate moment, Professor Robison’s plea for the original notion of “equity,” may only be aspirational.
