A New Strategy for Indigenous Climate Refugees

Scott Stern

Dec. 14, 2020

In the midst of a global pandemic and increasingly desperate attempts by the Trump administration to subvert the results of the 2020 election, it would be easy to miss a slew of recent news stories on individuals the media has termed "climate refugees."

These are people who have been displaced due to catastrophic climate change, or who will be forced to flee as their homes become too hot, too cold, or too dry, or if they become regular targets of massive storms or end up underwater. As many of these stories have highlighted, among those most at risk are the Indigenous peoples of the United States.

The scale of climate-induced displacement boggles the mind. According to many reports — including one by the UN High Commissioner for Refugees — well over 100 million people will be forced to flee their homes as a result of climate change by the year 2050. Indigenous peoples all over the world — including the Yanomami in the Amazon, the Inuit in the Arctic, and the Saami in Scandinavia — are on the front lines of climate displacement.

Here at home, climate change could render uninhabitable hundreds of Native American communities in Alaska, Florida, Hawai'i, Louisiana, South Dakota, and Washington state. One U.S. Government Accountability Office study found that 184 out of 213 Indigenous communities in Alaska are at risk from flooding and erosion (both of which are exacerbated by climate change). "Unlike other populations, Indigenous peoples have a tendency to be located in vulnerable locations throughout the world," scholars Randall Abate and Elizabeth Ann Kronk Warner explain in their study of common climate harms facing Indigenous peoples.

This shared vulnerability is due in large part to centuries of racist government policies. As anthropologist Julie Koppel Maldonado and her coauthors have noted, "For Indigenous communities, climate-induced relocation cannot be separated from the sensitive history of government-mandated tribal relocations that occurred throughout the United States from the late 1700s well into the 20th century." Dislocation has been a constant for many American Indian communities, often forcing them into precarious places. It began well before the 1830 Indian Removal Act, which forced native communities east of the Mississippi River to abandon their homes and move west, and the ensuing "Trail of Tears," and continued for decades thereafter.

In northern Wisconsin, for instance, the entire village of Odanah — home of the Bad River Band of the Lake Superior Chippewa Tribe — has had to relocate because of increased flooding. Journalist Rebecca Hersher notes that the tribe moved to the flood-prone Bad River only after an earlier forced displacement in the 19th century, when colonizers drove them out of Maine. "Native communities are disproportionately affected by climate-related flooding, in part because of that very same history of pushing Native peoples onto marginal land," Hersher writes.

Climate refugees face a uniquely precarious future, in part due to a gross lack of legal avenues to gain asylum, safe and secure relocation, or recompense. This is, in part, because the 1951 UN Refugee Convention defines a "refugee" as a person who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

It would be quite a stretch for those displaced by climate change to meet these requirements; their fear is not persecution so much as the annihilation of their homes. Further, no U.S. law specifically addresses climate refugees, nor is there a federal agency dedicated to addressing their needs.

A Path Forward

Yet, there is a potential path out of climate-induced devastation for American Indian climate refugees. As I discuss in a recent law review article, the Indigenous peoples of the United States have an enforceable right to resettlement. In other words, Native Americans whose communities are threatened by climate-induced displacement can demand that the federal government relocate them to higher ground.

This right is found in what's known as the "federal trust duty" toward American Indians. Originating from treaties of the 18th and 19th centuries, and the so-called Cherokee cases of the 1830s, the trust duty today is far-reaching and powerful. As legal scholar Matthew Fletcher and others have shown, Congress has acknowledged that the federal government is obligated under this duty to provide Native Americans with educational and health care services, adequate housing, and public safety. Courts have also held that it requires the federal government to protect Native Americans' water supplies and lands, safeguard their wildlife resources, and clean up hazardous waste.

In the last several decades, much of the litigation around the trust duty has focused on when federal mismanagement of tribal resources is compensable; in these cases, tribes were seeking monetary damages, not declaratory or injunctive relief. These cases have yielded a confusing, apparently contradictory line of decisions. But they have also left an opening for a more radical interpretation of the trust duty. As I explain in the article, cases involving Native Americans seeking declaratory or injunctive relief allow courts to infer the existence of enforceable trust duties beyond those explicitly set out in federal law.

History has long been invoked in trust duty cases to show that past events have given rise to present trust obligations. Thus, the United States' history of forcing Indigenous communities to move to lands that are vulnerable to climate impacts is highly relevant to determining whether trust obligations exist.

Statutes, regulations, and treaties are also relevant to locating a trust obligation; courts often find such a duty even in the absence of specific statutory language based on "the nature" of the relationship between the government and tribe. Several federal laws contain language that implies the existence of a duty to relocate Native American communities that will be destroyed by climate change. So do numerous treaties, which include specific assurances that the federal government will "protect" Indigenous peoples and their communities.

A U.S. court ruling that the trust duty includes a right to resettlement for Native American communities facing climate annihilation would be a bold yet necessary step toward fulfilling the government's obligations. Of course, even if courts were to recognize such a right, and even if the federal government showered Native American communities with funding for relocation, looming questions would remain: where to go, how to go, how to make sure relocation is equitable?

These communities "would still face the existential problems of how to maintain an economy in remote locations with few job opportunities and (in many cases) declining subsistence opportunities," lawyer Elizaveta Barrett Ristroph writes. Communities must engage "in difficult conversations about the potential scenarios that could occur as climate change worsens and more communities are competing for the same limited resources."

Ultimately, scholars and policymakers should remember that law changes when social movements demand that it changes. As the historian Nick Estes has shown, the 2007 UN Declaration on the Rights of Indigenous Peoples, for instance, was the direct result of more than 40 years of Indigenous activism in the United States and around the world. Surely it is no coincidence that courts strengthened the federal trust duty in the 1970s — just as the Red Power and American Indian Movements and other activists were demanding structural change across the country.

It is up to those of us who aspire to be in solidarity with today's Indigenous activists to follow where they lead.

Scott W. Stern is a Justice Catalyst Legal Fellow at Greenpeace International. He is author of the recent article, "Rebuilding Trust: Climate Change, Indian Communities, and a Right to Resettlement," from which this blog post was adapted.

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