Inherent Tribal Authority to Protect Reservations

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1 Inherent Tribal Authority to Protect Reservations Elizabeth Ann Kronk Warner Assoc. Dean of Academic Affairs, Professor of Law and Director, Tribal Law and Government Center University of Kansas School of Law January 19, 2016

2 Presentation Overview Considerations Unique to Alaska Common Law Options: Trespass and Private Nuisance Tribal Environmental Code Provisions Environmental Law Applicable in Indian Country Existing Tribal Environmental Laws Types of Tribal Environmental Laws: Innovations in Tribal Environmental Law and Climate Change Planning Example of tribal innovations in terms of climate change adaptation: Confederated Salish and Kootenai Tribes International Law

3 Previous Tools Discussed: Consultation under Executive Order 13,175 and the National Historic Preservation Act Participation in the Development of EIS Participation on Federal Advisory Councils Development of Co-Management Agreements Development of Agreements with the Private Sector Creation of Tribal Conservation Districts

4 Considerations Unique to Alaska: Land Status However, as pointed out by the Supreme Court in Wheeler, some sovereign powers, such as determination of membership, regulation of domestic relations, and regulation of inheritance, may be exercised without a land base. For example, may be able to regulate on the basis of membership. See Chilkat Indian Village v. Johnson, 870 F.2d 1469 (9 th Cir. 1989) (allowing enforcement of civil ordinances regarding members transfer of tribal artifacts). Also, Villages ought to be able to exercise whatever governmental powers might be necessary to administer programs made available or delegated to them by the federal government in recognition or implementation of the federal-tribal government-to-government relationship. Villages can still regulate the conduct of members, and may establish guidelines for non-natives. It may be possible to negotiate with the State to add guidelines to state/municipal codes.

5 Tribal Common Law Tribal Common Law Generally Developed from the customs and traditions of the tribe. Sovereign ability to recognize and enforce tribal common law exists, unless divested by the federal government. Expressions of tribal common law must be consistent with tribal civil and criminal jurisdiction. Several tribal constitutions and tribal courts have recognized the existence of tribal common law. For example, see the Pueblo of Laguna s and Ho-Chunk Nation s constitutional preambles, which both recognize customary law. Similarly, many tribes have enacted tribal codes recognizing tribal common law. For example, the Sisseton-Wahpeton Sioux Tribe s Code at Chapter explains that [c]ivil matters shall be governed by the laws, customs, and usage of the tribe not prohibited by the laws of the United States, applicable Federal laws and regulations and decisions of the Department of the Interior. The U.S. Supreme Court has also recognized the existence and legitimacy of tribal common law. In United States v. Quiver, the Court explained that [a]t an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated and offenses by one Indian again the person or property of another Indian to be dealt with, according to their tribal customs and laws. 241 U.S. 602, 604 (1916). Such common law likely exists in Villages.

6 Trespass Similarly, as long as such actions are consistent with federal law, tribes are generally free to exercise the right to exclude and bring actions for trespass. For example, the U.S. Court of Appeals for the Ninth Circuit explained that such trespass actions were consistent with the tribe s right as a landowner to occupy and exclude. The tribe seeks to enforce its regulations that prohibit, among other things, trespassing onto tribal lands, setting a fire without a permit on tribal lands, and destroying natural resources on tribal lands. The Supreme Court has strongly suggested that a tribe may regulate nonmembers' conduct on tribal lands to the extent that the tribe can assert a landowner's right to occupy and exclude. Hicks, 533 U.S. at 359, 121 S.Ct (quoting Strate, 520 U.S. at 456, 117 S.Ct. 1404). The tribal regulations at issue stem from the tribe's landowner's right to occupy and exclude. Trespass regulations plainly concern a property owner's right to exclude, and regulations prohibiting destruction of natural resources and requiring a fire permit are related to an owner's right to occupy. See Hicks, 533 U.S. at 359, 121 S.Ct (discussing a landowner's right to occupy and exclude); Strate, 520 U.S. at , 117 S.Ct (same). Accordingly, the tribe's ownership of the land may be dispositive here. See Hicks, 533 U.S. at 370, 121 S.Ct ( [T]ribal ownership is a factor in the Montana analysis, and a factor significant enough that it may sometimes be dispositive. (alteration and internal quotation marks omitted)); id. at 359, 121 S.Ct (suggesting strongly that regulations concerning a landowner's right to occupy and exclude are permissible against nonmembers). Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, (9 th Cir. 2009). Even where land is held in fee, may still bring a trespass action, which can be helpful in the environmental context.

7 Potential Opportunity for Common Law Action of Private Nuisance: Native Village of Kivalina: An Overview Native Village of Kivalina and City of Kivalina (collectively Kivalina) are the governing bodies of an Inupiat village of approximately 400 people is located on the tip of a six-mile barrier reef located between the Chukchi Sea and Kivalina and Wulik Rivers on the Northwest coast of Alaska, some seventy miles north of the Arctic Circle

8 Picture of Kivalina Available at: intersection/ alaskan_island_of_kivalina_1.jpg

9 The Injury *Defendants are significant contributors of greenhouse gases *Greenhouse gases trap atmospheric heat, causing climate change *Climate change is destroying Kivalina through the melting of Arctic sea ice that formerly protected the village from winter storms *The melting sea ice results in increased storm damage and massive erosion

10 The Injury continued Houses and building are in imminent danger of falling into the sea as the village is battered by storms and its ground crumbles from underneath it Critical infrastructure is imminently threatened with permanent destruction. If the entire village is not relocated soon, the village will be destroyed. Native Village of Kivalina and City of Kivalina, Complaint for Damages, Demand for Jury Trial, 2 (Feb. 26, 2008).

11 The Claim Federal Common Law Public Nuisance Defendants emissions of carbon dioxide and other greenhouse gases, by contributing to global warming, constitute a substantial and unreasonable interference with public rights, including, inter alia, the rights to use and enjoy public and private property in Kivalina. Native Village of Kivalina and City of Kivalina, Complaint for Damages, Demand for Jury Trial, 62 (Feb. 26, 2008).

12 The Claim State Law Private and Public Nuisance Civil Conspiracy Concert of Action

13 Court Decisions U.S. District Court for the Northern District of California Political Question Doctrine precludes consideration Plaintiffs lack Article III standing and are not entitled special solitude On March 10, 2010, Kivalina appealed the District Court s decision to the Ninth Circuit. The Ninth Circuit upheld the District Court s dismissal of the plaintiffs claims based on federal displacement reasoning, holding that the federal public nuisance claim was no longer viable following the United States Supreme Court s decision in AEP v. Connecticut, 131 S.Ct (2011). The Kivalina plaintiffs filed a petition for rehearing en banc with the Ninth Circuit, which the court denied on November 22, The United States Supreme Court denied Kivalina s petition for a writ of certiorari on May 20, 2013.

14 Postscript State-based public and private nuisance claims Successful atmospheric trust litigation

15 Tribal Environmental Code Provisions

16 Environmental Law Applicable Tribal sovereignty in Indian Country Inherent sovereignty over citizens on tribal lands remains Montana implicit divestiture of jurisdiction over non-citizens by virtue of dependent status 2 Exceptions: 1) consensual; or, 2) threat to health and safety of the tribe Following Strate and Hicks, there is an issue as to importance of land status (i.e. triballycontrolled v. non-indian)

17 Environmental Law Applicable in Indian Country, Cont. Federal Law Federal government enacted numerous environmental statutes, especially between 1970 and 1980 It has generally been held that these statutes apply to Indian Country Minimum federal standard will always apply EPA regulates where tribes decline to do so Several statutes, such as the Clean Water Act, allow tribes to be treated as states Tribes with TAS status may enact more stringent regulations ex. City of Albuquerque v. Browner Even if the statute does not specifically grant TAS status, EPA may treat tribes similar to states. RCRA is a notable exception.

18 Tribes As States (TAS) Status Under the Clean Air Act and Clean Water Act Overall, 28 federally recognized tribes, or 5% of total federally recognized tribes, have TAS approval under the CAA Most of these tribes have approval under Section 505(a)(2) Only two tribes have Title V permitting authority Overall, 48 federally recognized tribes, or 8% of federally recognized tribes, have TAS approval under the CWA all under section 303

19 TAS Application to Alaska With land in trust, may be able to meet the requirements for TAS status, as the basic requirements for applying for TAS are that the tribe must: be Federally recognized, have a governing body carrying out substantial governmental duties and powers, have appropriate authority, and be capable of carrying out the functions of the program. Even without land status, Villages may still be able to benefit. For example, may petition EPA for certain water quality criteria or air standards.

20 How have Tribes Adopted and Adapted Federal Environmental Law? If TAS becomes an option, Villages may decide to adopt and/or adapt federal laws. In the CAA context: Tribes have largely incorporated the federal standards as codified in the CAA and related regulations Tribes utilizing TAS status under CAA are largely engaged in air quality monitoring, which is reported to EPA and states In the CWA context: A lot of innovation in terms of incorporating tribal customs and spirituality Departures from federal counterparts Reference to Montana exceptions

21 Innovation through Tribal Sovereignty Villages still possess inherent sovereignty, despite divestment. Not all inherent authority turns on having a land base (as discussed above). Development of tribal environmental law is an expression of sovereignty and environmental ethics of the community. At most (assuming no overlap), 76 tribes or 13% of federally recognized tribes are utilizing TAS status suggesting that a substantial amount of tribal environmental law is developed under tribal inherent sovereignty Villages may consider how to accomplish environmental goals based on regulation tied to membership and guidelines for non-natives. May be able to combine such regulation/guidelines to MOUs with private sector (e.g. application to workers coming into the territory) or other tools previously discussed. Example: Tribal Climate Change Adaptation Plans

22 Confederated Salish and Kootenai Tribes (Montana) Images taken from: and

23 Confederated Salish and Kootenai Tribes (Montana) In adopting the Plan, the Tribes acknowledged that [t]he Northwest has already observed climate changes including an average increase in temperature of 1.5ºF over the past century. Locally, all models predict warmer temperatures, lower snowpack, and more frequent and severe droughts and floods. For the Tribes, the changes in water and impact on the fisheries that the Tribes rely on are some of the most important effects of climate change. The Tribes adaptation plan may differ from local and state plans because of the incorporation of Traditional Ecological Knowledge (TEK) and also the recognition that climate change may result in cultural impacts, as well as negative social, environmental, and economic consequences. The focus on culture in the Strategic Plan is consistent with the Tribes overall use of cultural considerations for natural resources in land use planning. The Strategic Plan later explains that TEK is uniquely related to cultural resources, and that both must be protected. The Tribes Strategic Plan aligns with local regional, state and city efforts to address the impacts of climate change. The Plan also provides priority levels for each of the areas examined and the Tribes rated the priority for culture as high. In relation to the high priority placed on culture, the Strategic Plan concludes that, [p]rotecting land-based cultural resources is essential if the Tribes are to sustain Tribal cultures. The Plan also calls for a special focus on the connection between traditions and issues of community resilience and sovereignty.

24 International Law Considerations

25 International Law U.N. Declaration of the Rights of Indigenous Peoples Article 3 Right to Self Determination UNDRIP Article 8 states, [i]ndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. UNDRIP Article 10 states [i]ndigenous peoples shall not be forcibly removed from their lands or territories. UNDRIP Article 26 states [i]ndigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired States shall give legal recognition and protection to these lands, territories and resources. ILO Number 169

26 International Adversarial Processes

27 Inuit Circumpolar Conference Composed of over 150,000 Inuit people from Canada, Greenland, Russia and the United States The Inuit petition to the Inter-American Commission on Human Rights focused on Inuit from Canada and United States, because Greenland and Russia are not part of the Inter-American regional grouping.

28 The Inuit Petition to the Inter- American Commission Petition filed with Inter-American Commission on Human Rights, which is a regional human rights body established by the Organization of American States. Petition was filed against the United States Claims The United States contributes a substantial portion of the world s greenhouse gases but is not taking adequate policy steps to reduce those emissions The resulting phenomenon of climate change has substantially negatively impacted the Inuit These impacts violate rights of the Inuit protected under the Inter-American human rights system

29 Realities of the Inuit Petition Petition was a watershed moment because it reframed climate change as a human rights issue rather than solely an environmental problem. Petitioners knew that there would be difficulty with enforcement and used the petition as a tool to promote dialogue.

30 Response of Inter-American Commission Inter-American Commission responded on November 16, 2006 with a two-paragraph response. The Commission determined that the information provided does not enable us to determine whether the alleged facts would tend to characterize a violation of the rights protected by the American Declaration. Inuit requested a hearing on the linkages between climate change and human rights, which the Commission granted. The hearing was held in March Commission has indicated it will continue to focus on the rights of indigenous people.

31 Postscript Substantial increase in discussion of impacts of climate change on Arctic indigenous Key moment in using human rights as a vehicle to explore remedies for climate change

32 Miigwetch! (Thank you!) Elizabeth Ann Kronk Warner Assoc. Dean of Academic Affairs, Professor of Law and Director, Tribal Law and Government Center University of Kansas School of Law (785) Articles available at: MyPapers.cfm?partid=

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