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Conference Proceeding

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The current era arguably poses the most complex and challenging environmental dilemmas in human history. With climate change, increasingly scarce resources, and exponentially expanding demand, traditional legal notions of standing, harm, and liability are being stretched and reshaped to accommodate a shifting set of values regarding natural resources and potentially respond to the moment. While these novel and innovative approaches are modestly reshaping the fields of natural resources and environmental law, however, the historical and time-honored claims of Indian tribes are also presenting avenues for rethinking the foundations of those areas of law. Arising both within and outside of the constitutional framework, these claims also pose the potential to usher in a new era of more responsible and sustainable environmental stewardship that innovates beyond the limiting legal regimes operating today. This paper profiles an ongoing matter that highlights this potential, Baley v. United States, currently pending before the United States Court of Appeals for the Federal Circuit. Though not yet resolved, Baley illustrates how tribal claims, based on long-standing legal principles but antithetical to the historical push to commodify and develop natural resources, may present the opportunity to rethink and reshape the how natural resources are managed going forward.


This paper was presented at the American Bar Association Section of Environment, Energy, and Resources 27th Conference in Boston, MA. on September 13, 2019 as a part of the panel: Constitutional Frontier: Federalism, Separation of Powers, and How Federal, State and Tribal Governments Are Reshaping Environmental Law.