Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-threatened Resources

• Publication year: 2021
• Citation: Vol. 94

94 Nebraska L. Rev. 916. Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-Threatened Resources

Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-Threatened Resources

Elizabeth Ann Kronk Warner(fn*)

TABLE OF CONTENTS

I. Introduction.......................................... 917

II. Interpreting Treaties .................................. 922
A. What Do the Relevant Treaties Say? ............... 923
1. Swinomish Indian Tribal Community .......... 923
2. Nez Perce Tribe ............................... 925
B. Judicial Interpretation of Treaties ................. 927
C. Considering Treaty Language Within a Climate Change Context ................................... 932

III. Potential Legal Arguments Beyond the Treaties Themselves ........................................... 934
A. Domestic Law: The Federal Trust Responsibility . . . 935
1. Historical Development of the Federal Trust Relationship ................................... 935
2. Contemporary Federal Trust Relationship Decisions Based on the Tucker Act ............. 937
3. Contemporary Federal Trust Relationship Decisions Based on the APA ................... 947
4. Application of the Federal Trust Relationship Within the Climate Change Context ............ 950
B. Potential Application of International Law ......... 955

IV. Conclusion ............................................ 961

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Great nations, like great men, should keep their word.

Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 142

(1960) (Black, J., dissenting)

My ancestor . . . who signed the treaty . . . accepted the word of the United States-that this treaty would protect not only the Indian way of life for those living, but also for all generations yet unborn.

Jerry Meninick, Citizen of the Yakama Nation(fn1)

I. INTRODUCTION

The idiom goes that "Everything old is new again." This Article examines whether the same can be said for federal Indian law. For centuries, tribes have relied on their treaties with the United States to enforce such crucial rights as access to water, fish, and hunting areas. Today, an environmental challenge looms over Indian country-climate change-prompting one to wonder whether such tribally revered text, treaties, can be applied in new ways to provide a legal avenue with the potential to alleviate the impact of climate change.

Climate change threatens the very territorial existence of tribes in the United States.(fn2) Tribes, who often rely closely on their environments for legal, spiritual, cultural, and subsistential reasons, have been particularly hard hit by the negative impacts of climate change. For example, in its Climate Adaptation Action Plan, the Swinomish Indian Tribal Community(fn3) details the projected impacts of climate change on its reservation community, explaining that upwards of 15% of its river uplands are subject to potential flooding, 160 residential and 18 non-residential/commercial structures could be inundated, 2,218 acres and over 1,500 properties are at risk for wildfires, vital

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transportation links are at risk for inundation, significant seafood and shellfish areas are at risk of loss, the Tribe's elders face significant risk of heat-related illnesses, and the Tribe may lose sensitive cultural sites and traditional native species.(fn4) Ultimately, the Tribe concludes that "[t]he principle areas and resources within the Swinomish Indian reservation vulnerable to climate change impacts are shorelines, beaches, low-lying terrain, and forests, along with the assets within those areas."(fn5)

Similarly, the Nez Perce Tribe also is facing profound impacts from climate change:

Air temperatures in the region have increased about 1.5 °F during the 20th century and models predict a future increase of +2.0 °F by 2020, +3.2 °F by 2040, and +5.3 °F by 2080 . . . . April 1st snowpack has decreased overall in the Pacific Northwest, with losses . . . earlier in the spring throughout the western United States, leading to reduced summer streamflows, increased competition for water, vulnerability to drought, increases in summer water temperatures and a higher risk of winter flooding. The changes already being seen are substantial, and by the end of the century [the Nez Perce Tribe] will likely be facing unprecedented changes to [its] natural environment and the economies that depend on it.(fn6)

Unfortunately, climate change exacerbates the environmental degradation already facing many Native communities as a result of environmental pollution, natural resource development, and sacred site destruction.(fn7) For many tribes, land constitutes more than dirt and plants as, "[f]or Native peoples, land is often constitutive of cultural identity. Many Indian tribes, for example, identify their origin as a distinct people with a particular geographic site."(fn8) For many tribes, culture and spirituality can be connected to a specific area or piece of land. In some parts of the country, climate change threatens the very land upon which Natives and tribes are located.(fn9) In this way, climate change threatens not only the territorial sovereignty of Indians and tribes, but also tribal cultural sovereignty as well. Accordingly, the negative impacts of climate change that threaten the very land underlying some Native communities may be particularly hard on Native

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communities, where land is the "linchpin" for survival.(fn10) Land is also of great importance to many tribes because "reservations are sanctuaries where land is not subject to taxation; where individual Indians are free of most taxes; where many state laws do not apply; and where Indian customs and traditions are supreme."(fn11) Ultimately, land may play a more important role in the lives of individual Indians and tribes than it does for most non-Indians.(fn12)

Because of the important role that land and natural resources play to many Native communities, advocates looking to protect such resources from the negative impacts of climate change may look to treaties and the federal trust responsibility.(fn13) For example, in its Climate Adaptation Action Plan, the Swinomish Indian Tribal Community explains its goal to "[p]reserve [the] ability to fully exercise treaty rights and cultural practices and to improve physical and spiritual health."(fn14) Additionally, the Nez Perce Tribe calls for a discussion of its treaty rights and the resources protected by its treaties with the United States in response to the negative impacts of climate change on those rights.(fn15)

These references to tribal treaties rights within tribal climate change adaptation planning documents raise the question of whether treaty rights can be used to require the United States to protect important tribal resources threatened by climate change. Given that many treaties protect natural resources that are particularly hard hit by climate change-such as fisheries, animals that are typically hunted for subsistential purposes, and water(fn16) -enforcing treaty rights may be a helpful legal tool to assist efforts to combat against the negative impacts of climate change. Development of such legal tools may be particularly important because of the value of the environment to many tribal communities and also because tribes may not be otherwise included in state and regional discussions of how to combat climate change.(fn17) Because of the small size of some tribal communities, non-tribal governments may not focus on tribes and

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Natives(fn18) -leaving it to the communities themselves to develop their own solutions to climate change. Also, despite the fact that President Obama has acknowledged the profound impacts of climate change on tribal communities,(fn19) it is highly unlikely that new federal laws will be passed any time soon to assist tribes.(fn20)

Tribes may therefore want to reexamine existing legal tools, such as treaties, to determine how such past precedent might be creatively applied in the climate change context. To date, little attention has been paid to examine whether treaties may prove effective legal resources for tribes seeking to protect valuable resources from the impacts of climate change. This Article therefore seeks to fill the scholarly void and begin the conversation on the role that treaties may play in providing tribes legal redress for the negative impacts of climate change.

Tribes exercising their treaty rights have found success in the past, such as with the protection of water rights and fishing access, although treaties have not previously been relied upon to protect resources vulnerable to the impacts of climate change. In general, treaties have historically played an important role in many tribes, as they have a profound cultural connection and are "a powerful testament to [tribes'] inherent sovereign authority has separate nations and governments."(fn21) Accordingly, treaties may be used as expressions of both political and cultural sovereignty because treaties were negotiated between two separate sovereigns, the United States and tribes, and because treaties often protect valuable cultural resources such astribal resources.(fn22)

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Given the importance of treaties, this Article considers the enforceability of the treaty rights themselves in the climate change context, as well as how treaties might be utilized by tribes within...