Learning From Tribal Innovations: Lessons in Climate Change Adaptation
| Date | 01 December 2019 |
| Author |
49 ELR 11130 ENVIRONMENTAL LAW REPORTER 12-2019
The United States is facing a national catastrophe.
American landsc apes have changed and lives
are at risk. e warning signs are visible across
the countr y.1 Once-in-a-generation weather events are
becoming common occurrences, as w ildres rage in t he
West, powerful hurricanes ravage the Southeast, and the
Northeast suers brutal cold in the winter and heat in the
sum mer.2 is pla gue is not limited to the United States,
as its eects are felt across the globe.3 Some, such as former
President Barack Obama, view this a s the single greatest
threat to the future of humanit y.4 And what is the federal
government of the United States currently doing to address
or prepare for this catastrophe? Very little.
is plague facing the United States and the world is
climate change, and, rat her than helping to curb the green-
house gas emissions that lead to climate change or prepar-
ing for its negative impacts through adaptation planning,
Pres. Donald Trump has expressed skepticism about the
reality of climate cha nge on numerous occasions.5 As if
that were not enough, the Trump Administration is walk-
ing back regulations implemented by the Obama Admin-
istration to both mitigate and adapt to climate cha nge.6
A lack of leadership on this issue therefore exists at t he
national level.7
Several sovereigns have stepped in to ll the void.
States, for example, have developed their own climate
change-related regulations and also partnered with other
sovereigns to attempt to either mitigate or adapt to cli-
1. National Aeronautics and Space Administration (NASA), e Eects of Cli-
mate Change, https://climate.nasa.gov/eects/ (last updated Oct. 9, 2019);
National Oceanic and Atmospheric Administration, Climate Change Im-
pacts, https://www.noaa.gov/education/resource-collections/climate-educa-
tion-resources/climate-change-impacts (last updated Feb. 2019).
2. NASA, e Eects of Climate Change, https://climate.nasa.gov/eects/ (last
updated Oct. 9, 2019); National Oceanic and Atmospheric Administration,
Climate Change Impacts, https://www.noaa.gov/education/resource-collec-
tions/climate-education-resources/climate-change-impacts (last updated
Feb. 2019).
3. See generally I P C C (IPCC),
C C 2014: S R (Core Writing Team et al. eds.,
IPCC 2014), https://www.ipcc.ch/site/assets/uploads/2018/02/SYR_AR5_
FINAL_full.pdf.
4. President Obama: Climate Change Greatest reat to Future Generations,
U N C C, Jan. 21, 2015, https://unfccc.int/news/
president-obama-climate-change-greatest-threat-to-future-generations.
5. Coral Davenport & Mark Landler, Trump Administration Hardens Its At-
tack on Climate Science, N.Y. T, May 27, 2019, https://www.nytimes.
com/2019/05/27/us/politics/trump-climate-science.html.
6. See infra notes 53-67 and accompanying text.
7. Admittedly, some federal agencies have worked on issues related to climate
change adaptation, see infra notes 46-52 and accompanying text.
Learning From
Tribal Innovations:
Lessons in Climate
Change
Adaptation
by Morgan Hepler and
Elizabeth Ann Kronk Warner
Morgan Hepler is completing a J.D. and Ph.D.
in economics at the University of Kansas.
Elizabeth Ann Kronk Warner is dean of the S.J.
Quinney College of Law at the University of Utah.
Summary
Although a vast literature focuses on the eorts of
states on climate change, they are not the only sover-
eigns who are working to address its negative impacts.
is Article argues t hat though tribal governments are
not part of the federalist system, they are still capable
of regulatory innovation that may prove helpful to
other sovereigns, such as other tribes, states, and the
federal government. It examines the steps tribes are
taking on climate change adaptation and mitigation,
and demonstrates that tribal climate change adapta-
tion planning is truly innovative in notable ways when
compared to state planning. First, the inclusion of tra-
ditional ecological knowledge is unique to tribes and
can prove quite benecial. Tribes also involve their
communities by surveying and involving community
members in the implementation phase. Further, tribal
adaptation plans promote the preservation of cultural
resources. Other sovereigns would do well to learn
from how tribes are providing valuable paths forward
to develop eective climate adaptation measures.
Authors’ Note: e authors would like to thank the faculty at the
S.J. Quinney College of Law at the University of Utah for their
comments on an earlier draft of this Article.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
12-2019 NEWS & ANALYSIS 49 ELR 11131
mate change.8 Cities committed to adhere to the promises
made by the United States under President Obama in the
Paris Agr eement .9 As demonstrated by this A rticle, tribes,
a third category of sovereigns within the United States,
are also actively engaged in designing and implementing
adaptation plans to address the negative impact s of cli-
mate change.
Because tribes may enact tribal adaptation plans as par t
of their inherent sovereignty, a brief introduction to tribal
sovereignty is helpful. Prior to colonization by foreign sov-
ereigns, most tribes existed as independent, self-governing
communities.10 Contact with foreign sovereigns certainly
impacted tribal governments. Despite this contact, how-
ever, tribal governments continue to be recognized as
independent, sovereign governments. As the U.S. Supreme
Court ac knowledged in Worcester v. Georgia, tribes are
“distinct, independent political communities.”11 e fed-
eral government recognized tribal sovereignty through the
Indian Commerce Clause of the U.S. Constitution,12 as the
Indian Commerce Clause acknowledges that Indian tribes
are separate entities from federal or state governments.
Today, inherent tribal sovereignty persists. “Tribal pow-
ers of self-government are recognized by the Constitution,
legislation, treaties, judicial decisions, and administrative
pr ac ti ce .”13 Unless a tribe is d ivested of its inherent sover-
eignty, the tribe’s sovereignty remains intact.14 Tribes main-
tain sovereign authority over their members and territory
to the extent not limited by federal law.15 “Indian tribes
8. See infra note 42 and accompanying text.
9. Climate Mayors, 407 US Climate Mayors Commit to Adopt, Honor and Up-
hold Paris Climate Agreement Goals, http://climatemayors.org/actions/paris-
climate-agreement/ (last visited Oct. 15, 2019).
10. C’ H F I L §4.01[1][a] (Nell Jessup
Newton et al. eds., LexisNexis 2012 ed.) (“Most Indian tribes were inde-
pendent, self-governing societies long before their contact with European
nations, although the degree and kind of organization varied widely among
them.”) (citing S C, T R N: A-
I P R 72-76 (Oxford Univ. Press 1988)).
though the Court had described tribes as “domestic dependent nations” in
Cherokee Nation v. Georgia, 30 U.S. 1 (1831), that tribal sovereignty still
existed and tribes were not dependent on federal law. C’ H
F I L §4.01[1][a] (Nell Jessup Newton et al. eds., Lexis-
Nexis 2005 ed.) (citing Worcester, 31 U.S. at 559).
12. C’ H F I L §4.01[1][a] (Nell Jessup
Newton et al. eds., LexisNexis 2005 ed.).
13. C’ H F I L §4.01[1][a] (Nell Jessup
Newton et al. eds., LexisNexis 2012 ed.).
14. Id.
15. C’ H F I L §4.01[1][b] (Nell Jessup
Newton et al. eds., LexisNexis 2005 ed.) (citing Worcester, 31 U.S. at 555
(absent tribal or federal approval “[t]he Cherokee nation, then, is a dis-
tinct community occupying its own territory, with boundaries accurately
described, in which the laws of Georgia can have no force”); Ex parte Crow
Dog, 109 U.S. 556 (1883) (arming exclusive tribal authority to impose
criminal punishment on tribal members absent federal law to the contrary);
Fisher v. Dist. Court, 424 U.S. 382 (1976) (upholding exclusive tribal juris-
diction over an adoption proceeding in which all parties were tribal mem-
are neither states, nor part of the federal government, nor
subdivisions of either. Rather, they are sovereign political
entities possessed of sovereign authority not derived from
the United States, which they predate.”16 Tribal sovereignty
has never been extinguished.17
e nature of tribal sovereignty, however, has changed
over time and largely as a result of tribes’ interactions with
the federal government. Today, tribes mainta in those
aspects of sovereignty that have not been removed by virtue
of treaty, statute, or “by implication as a necessary result of
their dependent status.”18 Accordingly, any examination of
tribal authority should start with the presumption that the
tribe in question possesses sovereignty, unless the tribe has
been divested of its sovereignty through one of the afore-
mentioned ways.19
Given that tribal governments possess the authority to
enact regulations related to climate change adaptation by
virtue of their status of sovereigns, it is helpful to a lso con-
sider why tribal involvement in climate change matters. As
argued below, given the Trump Administration’s failure to
engage in comprehensive climate change adaptation plan-
ning, state, local, and tribal actors are left to develop regu-
lations that will combat the negative impact s of climate
change. As a result, the innovations being developed by
tribes in this space may prove valuable to other sovereigns,
such as other tribes, states, and loca lities, as they look to
develop their own climate change adaptation policies.
Further, tribes occupy huge territories within the United
States. Approximately 56.2 million acres of land are held in
trust by the federal government for the benet of tribes
and indiv idual Ind ians.20 Bec ause of the sovereign status
of these tribes, states and loca lities have little jurisdictional
control over the regulatory activity on these la nds. Tribal
adaptation planning therefore helps to ensure that such
holding by declaring exclusive tribal jurisdiction over certain child custody
matters involving children who are tribal members or eligible to be tribal
members, so long as the children are domiciled or residing on the reserva-
tion, or wards of a tribal court)).
16. Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1151-52 (10th
Cir. 2011) (quoting Nat’l Labor Relations Bd. v. Pueblo of San Juan, 276
F.3d 1186, 1192 (10th Cir. 2002) (en banc)).
17. United States v. Wheeler, 435 U.S. 313, 322-23 (1978). Although this asser-
tion is generally true, it is worth noting that some tribes were “terminated”
during the Termination Era of the mid-20th century. C’ H
F I L §1.06 (Nell Jessup Newton et al. eds., LexisNexis
2005 ed.) (citing Charles F. Wilkinson & Eric R. Biggs, e Evolution of the
Termination Policy, 5 A. I L. R. 139, 151-54 (1977)). “Although
the termination acts did not expressly extinguish the governmental author-
ity of such [terminated] tribes, most were unable to exercise their govern-
mental powers after losing their land base. Termination thus weakened the
sovereignty of terminated tribes.” Id.
18. Wheeler, 435 U.S. at 323.
19. C’ H F I L §4.01[1][a] (Nell Jessup
Newton et al. eds., LexisNexis 2005 ed.).
20. U.S. Department of the Interior Indian Aairs, Frequently Asked Ques-
tions, https://www.bia.gov/frequently-asked-questions (last visited Oct. 15,
2019).
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
To continue reading
Request your trial