Unenforced Promises Treaty Rights as a Mechanism to Address the Impact of Energy Projects Near Tribal Lands

Abstract

Treaties between the United States and Native nations are binding until abrogated by the clear and plain intent of Congress. Many treaties signed in the 18th and 19th centuries remain unabrogated, but are also unenforced by the courts of the United States. The Dewey Burdock Project is a proposed uranium mining operation which would sit adjacent to the Pine Ridge Indian Reservation, where many members of the Oglala Sioux reside. The 1851 and 1868 Fort Laramie Treaties impliedly grant the Sioux access to safe drinking water and explicitly reserve for them off- reservation buffalo hunting rights.

This Note posits that unenforced but unabrogated treaty rights may serve as a mechanism for the Oglala Sioux to assert a greater role in decision-making regarding the Dewey Burdock Project. This Note also discusses the failure of the Nuclear Regulatory Commission to consider the project's effect on protected treaty rights, which may be a basis for injunctive relief. It lastly conceptualizes the project's interference with treaty rights as a property loss deserving of monetary compensation, both in the context of a government taking by the agency and as private interference by the mining company.