How do tribal nations’ treaties figure into climate change?

U.S. courts rarely favor environmental protections as a right — except when it comes to tribes expressing their treaty rights.

 

Mitch Zackuse pulls in a net of geoduck from Tulalip Bay. Tulalip tribal citizens rely on the bay’s waters, which are threatened by climate change.
Ian Terry

Over the years that Ray Fryberg Sr. has worked at the Tulalip Tribes Natural Resources Department, he’s watched climate change subtly reshape the region. Located near the cool waters of Puget Sound in Washington state, the tribe is actively dealing with the already-apparent transformation of traditional territories: eroding shorelines, raising spring tides, and warming waters that hurt salmon by pushing food sources north. “Climate change is an everyday topic in our office,” Fryberg says. “The tribes seem to be the last bit of a vanguard the environment has.” 

Over the past several decades, tribal nations have fought on that environmental vanguard through the powerful mechanism of treaty rights. This has won tribes major victories for land and water rights, as well as stalled or defeated coal terminals and gas pipelines. To date, none have directly used treaty rights to tackle climate change head on. But across Indian Country, as climate threats become clearer, more are beginning to wonder: Why not?

Can tribal nations successfully sue the federal government over climate change-related violations of treaties? And if so, what would that look like?

“I see huge opportunity in certain instances for using treaty rights, because we have had success in that context,” says Elizabeth Kronk Warner, professor and director of the Tribal Law and Government Center at the University of Kansas School of Law and member of Sault Ste. Marie Tribe of Chippewa Indians. “Courts have found that there can be this right to habitat protection in order to protect the treaty right.” 

Elizabeth Kronk Warner, an Indian law and climate law professor, sees the opportunity in legally pursuing treaty rights to protect the environment.
Courtesy of Kelsey Kimberlin/KU Marketing Communications

The idea of treaty-protected habitat played out in the fight against the two cases of Millennium Bulk Coal and Coyote Island terminals in Washington state, where the Yakama Nation, the Confederated Tribes of Umatilla Indian Reservation, Nez Perce Tribe and others argued that a coal terminal would harm salmon and treaty-protected fishing rights. So far, treaty rights have addressed climate change only as part of a broader argument, such as in opposition to the Keystone XL pipeline, but climate change itself has not been the primary subject of litigation (in part because there is no law about climate change in the U.S., as Interior Secretary David Bernhardt pointed out last week in a Senate hearing). And, critically, those lawsuits did not place the burden of addressing climate change on the United States, a notion that has proven difficult.

In 2005, for example, the Inuit Circumpolar Conference filed a complaint against the United States to the Inter American Commission on Human Rights, alleging greenhouse gas emissions from the U.S. were causing melting sea ice, rising sea levels and irreparable damage to Inuit life and culture — a first attempt to hold the U.S. accountable for their role in global climate change. The complaint failed when the commission was unwilling to look at the Inuit's findings that the U.S.’s greenhouse gas emissions were damaging their traditional territory.

Still, Martin Wagner, managing attorney of Earthjustices international program, who was involved with the petition, said the complaint was groundbreaking in how it attempted to tackle climate change through the courts as a moral problem: “The petition was a really powerful statement by the Inuit of their rights, and of the connection between climate change and human rights. It instigated a global conversation about that relationship.”

Since then, human rights experts have called for the recognition of the right to a healthy environment, which 110 countries already acknowledge, as well as the U.N. Declaration on the Rights of Indigenous Peoples — but the United States does not. “The courts in the United States have long been of the view that there is no right to a healthy environment or any particular level of environmental quality,” says Michael Burger, executive director of the Sabin Center for Climate Change Law. “And, the government doesn’t have an obligation to protect those things, at least under the constitution.”

Treaty rights, on the other hand, do oblige the United States to certain environmental protections for tribal nations. It’s just that they haven’t been applied to climate change directly.

The question that hasn’t been tested, then, is whether treaty rights can in some way address one of the biggest challenges in climate litigation: Who should be held accountable for the costs and causes of climate change? Since treaties were made between tribes and the U.S., a treaty case would be directed at the federal government. Others are taking that tack too, the most successful attempt being the case Juliana v. US, brought by 21 young people suing the U.S. government over their right to “a climate system capable of sustaining human life,” in the words of a judge who ruled on the case.

At a community meeting hosted by Tulalip’s Natural Resource Department, community members share their top-five climate concerns for the area.

To tie climate change to treaty rights, a case must point to the actual treaty language. While possible, “it would probably be quite difficult to find something in a treaty that places a duty on the United States to do something, or refrain from doing something, connected to climate change,” said Robert Coulter, executive director at the Indian Law Resource Center and citizen of the Citizen Potawotami Nation. And, whenever a tribe uses treaty rights in a courtroom, there is some risk that the treaty could be diminished. Because of that, tribal governments are cautious about when to pursue a case with treaty rights.

One plausible example, though, is the right to fish “at usual and accustomed grounds.” That phrase appears in at least seven treaties with dozens of Pacific Northwest tribes. What if, due to species shifting from climate change or erosion from rising waters, that right could no longer be fulfilled? Species shift is a major side effect from climate change; one study shows how salmon shifting north to colder waters means First Nations fisheries could decline by almost 50% by 2050. Such a case has not been tried, and would not play to the strengths of the U.S. judicial system.

“The judicial branch is not well suited, I don’t think, to these sort of leaps that need to be taken between a very global, general problem and a specific action,” says Robert Anderson, director of the Native American Law Center at the University of Washington, and a member of the Bois Forte Band of Ojibwe. Still, there is power in shifting the conversation, as the Inuit did in 2005 and the 21 young people are now. “We lawyers like to think we can litigate anything and win it and change the world, but the fact is it’s really incremental,” Anderson says. “If you can use these cases, whether they’re enforceable or not, to shift public opinion, that’s really where the action is.”

Anna V. Smith is an assistant editor for High Country News. Email her at [email protected] or submit a letter to the editor

High Country News Classifieds
  • INDIGENOUS AFFAIRS EDITOR - HIGH COUNTRY NEWS
    High Country News is hiring an Indigenous Affairs Editor to help guide the magazine's journalism and produce stories that are important to Indigenous communities and...
  • STAFF ATTORNEY
    Staff Attorney The role of the Staff Attorney is to bring litigation on behalf of Western Watersheds Project, and at times our allies, in the...
  • ASSISTANT VICE PRESIDENT FOR DIVERSITY AND INCLUSION
    Northern Michigan University seeks an outstanding leader to serve as its next Assistant Vice President for Diversity and Inclusion. With new NMU President Dr. Brock...
  • EXECUTIVE DIRECTOR
    The Clark Fork Coalition seeks an exceptional leader to serve as its Executive Director. This position provides strategic vision and operational management while leading a...
  • GOOD NEIGHBOR AGREEMENT MANAGER
    Help uphold a groundbreaking legal agreement between a powerful mining corporation and the local communities impacted by the platinum and palladium mine in their backyard....
  • EXECUTIVE DIRECTOR
    The Feather River Land Trust (FRLT) is seeking a strategic and dynamic leader to advance our mission to "conserve the lands and waters of the...
  • COLORADO DIRECTOR
    COLORADO DIRECTOR Western Watersheds Project seeks a Colorado Director to continue and expand WWP's campaign to protect and restore public lands and wildlife in Colorado,...
  • DIGITAL MEDIA SPECIALIST, THE NATURE CONSERVANCY: WYOMING, MONTANA AND UTAH
    Digital Media Specialist - WY, MT, UT OFFICE LOCATION Remote and hybrid options available. Preferred locations are MT, WY or UT, but applicants from anywhere...
  • GRANT WRITER (PART-TIME, FREELANCE CONTRACT) HIGH COUNTRY NEWS
    High Country News seeks an energetic, articulate and highly organized grant writer to support a growing foundations program. This position works closely with our Executive...
  • ASSISTANT PROFESSOR OF HISTORY - INDIGENOUS HISTORIES OF THE NORTH AMERICAN WEST
    Whitman College seeks applicants for a tenure-track position in Indigenous Histories of the North American West, beginning August 2024, at the rank of Assistant Professor....
  • DAVE AND ME
    Dave and Me, by international racontuer and children's books author Rusty Austin, is a funny, profane and intense collection of short stories, essays, and poems...
  • CHIEF FINANCIAL OFFICER
    Rural Community Assistance Corporation is looking to hire a CFO. For more more information visit: https://www.rcac.org/careers/
  • EXECUTIVE DIRECTOR
    The Absaroka Beartooth Wilderness Foundation (ABWF) seeks a new Executive Director. Founded in 2008, the ABWF is a respected nonprofit whose mission is to support...
  • CANYONLANDS FIELD INSTITUTE
    Field seminars for adults in natural and human history of the northern Colorado Plateau, with lodge and base camp options. Small groups, guest experts.
  • COMING TO TUCSON?
    Popular vacation house, everything furnished. Two bedroom, one bath, large enclosed yards. Dog-friendly. Contact Lee at [email protected] or 520-791-9246.
  • ENVIRONMENTAL AND CONSTRUCTION GEOPHYSICS
    We characterize contaminated sites, identify buried drums, tanks, debris and also locate groundwater.
  • LUNATEC HYDRATION SPRAY BOTTLE
    A must for campers and outdoor enthusiasts. Cools, cleans and hydrates with mist, stream and shower patterns. Hundreds of uses.
  • LUNATEC ODOR-FREE DISHCLOTHS
    are a must try. They stay odor-free, dry fast, are durable and don't require machine washing. Try today.
  • WESTERN NATIVE SEED
    Native plant seeds for the Western US. Trees, shrubs, grasses, wildflowers and regional mixes. Call or email for free price list. 719-942-3935. [email protected] or visit...
  • ATTORNEY AD
    Criminal Defense, Code Enforcement, Water Rights, Mental Health Defense, Resentencing.