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Vernellia R. Randall
Professor of Law
The University of Dayton





 Marisa Katz

excerpted Wrom: GPKYLEJGDGVCJVTLBXFG Afloat: How Federal Recognition as a Native American Tribe Will Save the Residents of Isle De Jean Charles, Louisiana, 4 Loyola Journal of Public Interest Law 1-25, 1-4 (Spring 2003)(132 Footnotes Omitted)

Louisiana is sinking. The state possesses 40% of the nation's coastal wetlands. The coastal zone within Louisiana is one of the most fertile ecosystems in North America, providing its people not only a $1 billion a year commercial fish and shellfish industry, but also a life-saving buffer against hurricane and tropical storm intrusion. Unfortunately, the coastal wetlands are disappearing at a rate of 25 to 35 square miles each year. When a hurricane strikes the coast, the problem is exacerbated by rising saltwater tides that flood the freshwater wetlands, contributing to the erosion and ultimate destruction of marshes, swamps, and the communities that reside upon them.

The United States Army Corps of Engineers has proposed a levee construction project to protect against hurricane encroachment along a 70-75 mile path running through Terrebonne and Lafourche parishes. This proposal, known as the Morganza-to-the-Gulf of Mexico Hurricane Protection Project, is scheduled for completion no sooner than 2020. Implementation of the Morganza levee system is part of the Louisiana Coastal Wetlands Restoration Plan, a scheme that has been funded by and organized under the authority of the Coastal Wetlands Planning, Protection and Restoration Act (CWPPRA). The Morganza project is one of several wetland restoration projects, and according to the Corps of Engineers' Feasibility Report, construction of this levee system poses no conflict with any other proposed plans under CWPPRA. Once completed, the levee wall will protect approximately 110,000 residents of both parishes against hurricane devastation.

Throughout the past year, the U.S. Army Corps of Engineers has held numerous meetings, all local-based, to inform Terrebonne and Lafourche parish residents how the implementation of the levee wall will affect them. The focus has been on where exactly the wall is to be built and how much it will cost. Left out of the plans is Isle de Jean Charles, Louisiana. This small island, located in the southeast corner of Terrebonne Parish, falls outside the planned levee wall's path, leaving it exposed and unprotected. According to the Army Corps of Engineers, the additional costs required to include Isle de Jean Charles into the levee project are extraordinarily high, making it difficult to economically justify re-routing the levee system's projected path. As a result, Isle de Jean Charles, an island already facing severe wetland erosion, is particularly vulnerable to hurricane-induced high tides and faces total obliteration should a high category hurricane make landfall at its tip.

Isle de Jean Charles' inhabitants are mostly poor and happen to be almost entirely Biloxi-Chitimacha-Choctaw Native Americans, who have lived on the island for several generations but currently lack federal recognition as a Native American tribe. The Army Corps of Engineers has proposed relocation of the islanders to an undecided area, presumably somewhere in Terrebonne Parish, behind the levee wall. Despite this proposal to relocate, which is seen as a significantly cheaper alternative to extending the levee wall so as to include Isle de Jean Charles, most of the residents do not wish to move away from home. The demand for inclusion, so far, has been an uphill battle for this community of 277, where refuting what the Corps of Engineers views as economically unjustifiable has become nearly impossible.

The residents of Isle de Jean Charles, however, are in a unique position that could potentially give them great leverage in their fight for inclusion into the Morganza Project. Obtaining official federal recognition as a Native American tribe would, by law, afford these residents certain benefits and protections from the federal government they would not otherwise have. The United States government created federal recognition not only to make available federal services and benefits, but also to ensure the right of tribal self-determination and autonomy. This comment will focus on federal recognition and how it might, and why it should, be used as a mechanism when fighting for inclusion into the federal levee project. This comment asserts that federal recognition will provide the residents of Isle de Jean Charles the necessary bargaining power when confronting the Corps of Engineers in their struggle for inclusion, as inclusion is essential to save the island from potential destruction. Part II will provide background information on Isle de Jean Charles: the island, the people, and the relationship to the Morganza-to-the-Gulf Project proposal. Part III will explore the law of federal recognition and its implications for Isle de Jean Charles' residents. Part IV will conclude that federal recognition gives the community of Isle de Jean Charles a fighting chance to stay afloat.

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