Indian Treaty-based Climate Change Claims: Legal Strategies to Advance Tribal Sovereignty & Hold Government Accountable for the Climate Crisis

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