Tribal Regulatory Authority to Combat Climate Change

• Main Author: Hedden-Nicely, Dylan R.
• Format: Text
• Language: unknown
• Published: Penn Carey Law: Legal Scholarship Repository 2021
• Subjects: Environment; Climate Change; Environmental Justice; Environmental Regulation; Indian Country; Native Nations; U.S. Congress; Administrative Law; Law; Indian; permafrost; Alaska
• Online Access: https://scholarship.law.upenn.edu/regreview-opinion/251; https://www.theregreview.org/2021/03/22/hedden-nicely-tribal-regulatory-authority-climate-change/

Just last year, residents of the small community of Newtok, Alaska—home to approximately 380 Yup’ik Alaska Native people—packed up their belongings and moved away. As a result of climate change, the sea was slowly but surely eating at the melting permafrost underlying the town. Houses and infrastructure had been lost. The villagers had no choice but to leave their homes forever. Two thousand miles to the south of Newtok, members of the Yurok Tribe are struggling to maintain their ancient fishing way of life on the Klamath River. The fish native to the Klamath, like all native fish of the Western United States, are struggling to survive as climate change ravages their ocean homes and destroys their spawning grounds in western rivers. In 2002 alone, at least 34,000 native fish perished in the Klamath, an event so traumatic for the Yurok and other regional tribes that it still looms large in their collective consciousness nearly 20 years later. Meanwhile, tribal homes, property, and resources around the West have been permanently destroyed as a result of the ever-increasing number of megafires. For example, in 2015, the Colville Tribes of Eastern Washington lost over 200,000 acres of their 1.4 million acre reservation, nearly 15 percent of their entire land base. Further south on the Navajo Reservation, where a full third of all tribal members lack running water and sewage systems, water shortages caused by climate change are destroying the Navajo Nation’s livestock-raising tradition, which has been passed down for generations. These are just a few of the myriad examples demonstrating that, just as other people of color are unjustly endangered by a changing climate, the laws and policies in the United States have caused climate change to burden American Indians disproportionally. Applying racist legal institutions and policies to Indian tribes is particularly egregious because the federal government has undertaken a trust responsibility—paid for with billions of acres of Indigenous lands—to protect tribal people, ...