Presentation Type
Oral Presentation
Category
Social Sciences/Humanities
Abstract/Artist Statement
Climate change is an existential threat facing all of humanity, disproportionately threatening the very existence of American Indian tribes. Around the globe, citizens, states, municipalities, and non-governmental organizations are suing to hold their governments accountable for climate-related commitments and climate change impacts. To date, however, no Indian tribe has directly used its trust relationship nor treaty rights to hold the United States government accountable for climate change harms to land, water, wildlife habitat, or cultural resources.
Yet, Indian tribes are uniquely situated to do so. Unlike other plaintiffs, tribes have, since time immemorial, occupied lands and relied on natural resources that form the basis of tribal sovereignty and are now threatened by climate change. Tribes also have unique standing, rights, and injuries resulting from climate change which may form the basis of successful climate action where other plaintiffs have failed. Tribes have relied on treaties with the United States to enforce valuable rights such as access to water, fish, and hunting areas for centuries, and successfully brought breach of trust claims when the federal government mismanaged natural resources. Based on the unique legal status of tribes, the trust relationship between the federal government and tribes, and specific treaty-reserved rights, Indian tribes in the United States may be the best situated plaintiffs to successfully bring a climate change claim.
Scholars such as Elizabeth Kronk Warner, Dean and Professor of Law at the S.J. Quinney College of Law at the University of Utah; Sarah Krakoff, Deputy Solicitor of the U.S. Department of Interior Office of the Solicitor and former Moses Lasky Professor of Law at the University of Colorado Law School; and Rebecca Tsosie, Regents Professor of Law at the University of Arizona James E. Rogers College of Law, have researched and written on climate change threats to American Indian communities, as well as potential legal pathways and barriers to bringing successful claims.
Their research and legal theories provided the inspiration and foundations for my research. I advance their important work through incorporating strategies learned from recent climate change litigation brought by non-tribal youth plaintiffs in Juliana v. United States, as well as natural resource treaty-based litigation brought by tribal plaintiffs in the landmarking United States v. Washington decision. My proposed legal claims tie together and leverage courts’ jurisprudence related to the public trust doctrine, environmental servitudes, Indian treaty-reserved rights, and the federal Indian trust relationship.
This presentation will provide an overview of the legal foundations of several distinct tribal climate change claims based on foundational principles of federal Indian law; discuss the different strengths and weakness of the different plaintiffs’ claims in Juliana v. United State, and United States v. Washington; and propose innovative legal claims based on tribal treaty rights and the federal trust responsibility to hold the United States accountable for climate change threats to Indigenous homelands and lifeways.
Mentor Name
Monte Mills
Personal Statement
In the United States, 574 federally recognized American Indian and Alaska Native tribes, as well as state-recognized tribes, Native Hawaiian peoples, unrecognized tribes, and indigenous peoples of U.S.-affiliated territories live in remote, rural, and urban communities across the Nation. Regardless of federal recognition, a reservation’s size and location, or whether tribal members live on- or off-reservation, climate change jeopardizes indigenous people’s culture, sovereignty, health, economies, and lifeways. In 2022, climate change threats are becoming more extreme and it is clear that climate accountability cases can compel governments and corporate actors to pursue more ambitious climate change mitigation and adaptation goals. Here in the United States, parties have brought hundreds of climate lawsuits since the 1990s, but few have been successful beyond influencing public policy perceptions and contributing to a cultural shift in society’s collective conscious. Significantly though, American Indian tribes could leverage treaties in new ways that potentially open up legal avenues to alleviate the impact of climate change and compel the federal government to implement proactive mitigation and adaption measures. In bringing legal claims to protect their lands and natural resources from climate change threats, Indian tribes are protecting the very foundations of their tribal sovereignty, as well as building strategic opportunities to hold government accountable to curb greenhouse gas emissions and support the most vulnerable communities. If Indian tribes can bring these claims successfully, it would be a victory with benefits that extend far beyond any given tribe, reservation, or community. I intend to dedicate my legal career to holding corporations and government accountable in order to protect human and ecological health and mitigate the effects of climate change. Where traditional federal environmental statutes have failed, I believe we can forge new models to conserve irreplaceable natural and cultural resources and advance tribal sovereignty. I am developing an expertise in Indian law because I saw how problematic misperceptions of American Indians negatively impacted legislation and the public policy process in my career before law school. Studying and researching legal frameworks at this intersection of environmental and Indian law allows me to be at the frontier of reimagining the future of natural resource protection within a broader community of conservation leaders—including tribal nations. At this juncture, I know that natural resources issues cannot be siloed, nor can the concerns of sovereign tribal nations. This research and the resulting article and presentation are significant milestones in my academic career and have enhanced my professional development. I have advanced my legal research and writing skills and increased my understanding and engagement with cutting edge legal developments in the field of Indian law and climate crisis accountability. I intend to continue to build on this research in my future career, and as a future attorney, I intend to represent tribes and tribal entities dealing with environmental and natural resource issues. More specifically, I am well-prepared for my legal externships with the U.S. Department of Interior Solicitor’s Office Division of Indian Affairs, where I will provide legal counsel to the Secretary acting as federal trustee to American Indian tribes and their members, and Our Children’s Trust, where I will contribute to legal efforts in state and federal actions, including the constitutional and public trust climate case filed against the federal government and State of Montana.
Kirsten Gerbatsch recording
Indian Treaty-based Climate Change Claims: Legal Strategies to Advance Tribal Sovereignty & Hold Government Accountable for the Climate Crisis
UC 332
Climate change is an existential threat facing all of humanity, disproportionately threatening the very existence of American Indian tribes. Around the globe, citizens, states, municipalities, and non-governmental organizations are suing to hold their governments accountable for climate-related commitments and climate change impacts. To date, however, no Indian tribe has directly used its trust relationship nor treaty rights to hold the United States government accountable for climate change harms to land, water, wildlife habitat, or cultural resources.
Yet, Indian tribes are uniquely situated to do so. Unlike other plaintiffs, tribes have, since time immemorial, occupied lands and relied on natural resources that form the basis of tribal sovereignty and are now threatened by climate change. Tribes also have unique standing, rights, and injuries resulting from climate change which may form the basis of successful climate action where other plaintiffs have failed. Tribes have relied on treaties with the United States to enforce valuable rights such as access to water, fish, and hunting areas for centuries, and successfully brought breach of trust claims when the federal government mismanaged natural resources. Based on the unique legal status of tribes, the trust relationship between the federal government and tribes, and specific treaty-reserved rights, Indian tribes in the United States may be the best situated plaintiffs to successfully bring a climate change claim.
Scholars such as Elizabeth Kronk Warner, Dean and Professor of Law at the S.J. Quinney College of Law at the University of Utah; Sarah Krakoff, Deputy Solicitor of the U.S. Department of Interior Office of the Solicitor and former Moses Lasky Professor of Law at the University of Colorado Law School; and Rebecca Tsosie, Regents Professor of Law at the University of Arizona James E. Rogers College of Law, have researched and written on climate change threats to American Indian communities, as well as potential legal pathways and barriers to bringing successful claims.
Their research and legal theories provided the inspiration and foundations for my research. I advance their important work through incorporating strategies learned from recent climate change litigation brought by non-tribal youth plaintiffs in Juliana v. United States, as well as natural resource treaty-based litigation brought by tribal plaintiffs in the landmarking United States v. Washington decision. My proposed legal claims tie together and leverage courts’ jurisprudence related to the public trust doctrine, environmental servitudes, Indian treaty-reserved rights, and the federal Indian trust relationship.
This presentation will provide an overview of the legal foundations of several distinct tribal climate change claims based on foundational principles of federal Indian law; discuss the different strengths and weakness of the different plaintiffs’ claims in Juliana v. United State, and United States v. Washington; and propose innovative legal claims based on tribal treaty rights and the federal trust responsibility to hold the United States accountable for climate change threats to Indigenous homelands and lifeways.