Legal Considerations for Climate Change Impacts on Tribes’ Off-Reservation Resources
Roughly 1.2 million U.S. tribal members living on or near reservations are experiencing constraints on their lifestyles and economic activity due to the impacts of climate change. Forest resources are deteriorating due to invasive species, while salmon are threatened by warmer water temperatures. In the United States, the federal government has an obligation to exercise legal authorities to protect tribal lands, resources and rights. Because ecosystems and ecosystem impacts permeate jurisdictions and borders, tribal dependence on the land extends beyond on-reservation resources. This paper describes legal avenues - ranging from enforcing treaty obligations to invoking statutory rights - available to tribes that seek protection of water and land resources located beyond reservation borders.
Tribes can protect off-reservation resources through substantive and procedural law. Substantive law “defines the rights of tribes and the duties owed to tribes by the U.S. government,” such as the right to land, religion and cultural practice, and the right to self-governance. Procedural law encompasses “the ways tribes must be consulted during decision-making” by federal agencies and other stakeholders. Sources of U.S. law that protect tribes’ rights to resources include the Indian trust doctrine, treaty relationships, executive orders, and statutes and regulations. Some examples of these sources of law are provided below:
- In United States v. Washington (also known as the culvert case), the Court upheld that treaties imposed a duty on the State of Washington to refrain from building culverts that impede the tribe’s ability to fish. Treaties can be powerful tools to protect off-reservation resources from the impacts of climate change.
- Tribes can invoke the National Historic Preservation Act (NHPA) to protect historic tribal lands that contain important natural resources.
- Tribes may leverage the National Environmental Policy Act’s (NEPA) environmental impact statement public comment period to assert violations for federal projects that fail to take into account impacts on tribal resources. Under NEPA regulations, tribes also have the right to consultation.
Other avenues for tribes to protect off-reservation resources include implementing wilderness use designations and developing conservation trusts. The Northern California Coastal Wild Heritage Act of 2006 allows tribal access to wilderness areas for traditional religious and cultural purposes. Conservation trusts, meanwhile, can enable tribes to take advantage of private funding sources toward land acquisition and conservation.
Publication Date: April 2011
Authors or Affiliated Users:
- Teresa Jacobs
- Santi Alston
- University of Oregon
- Biodiversity and ecosystems
- Cultural resources
- Fish and fisheries
- Land management and conservation
- Water resources
- Legal Analysis