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.
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.
Showing 2,822 results
Scott Stern | December 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. Yet, there is a potential path out of climate-induced devastation.
Daniel Farber | December 11, 2020
A recent Ninth Circuit ruling overturned approval of offshore drilling in the Arctic. The ruling may directly impact the Trump administration's plans for oil leasing in the Arctic National Wildlife Refuge (ANWR). By requiring agencies to consider emissions when fossil fuels are ultimately burned, the Court of Appeals' decision may also change the way agencies consider other fossil fuel projects, such as gas pipelines.
Katlyn Schmitt | December 10, 2020
Ever since the U.S. Environmental Protection Agency (EPA) issued a dangerous (and now-rescinded) policy relaxing enforcement of environmental protections in March, the Center for Progressive Reform has watchdogged responses from state environmental agencies in three states in the Chesapeake Bay Region — Maryland, Virginia, and Pennsylvania. While the EPA essentially gave companies a free pass to hide pollution violations during the pandemic, most states set up processes to handle COVID-19-related noncompliance. Environmental agencies in the three states we monitored received dozens of waiver requests related to water, land, and air quality protections, pollution controls, sampling and monitoring, inspections, and critical infrastructure deadlines. A majority of these requests were related to the pandemic. But others, such as those seeking to delay important deadlines for construction projects, were not. This suggests that some polluters are using COVID-19 as an excuse to subvert or delay deadlines that prevent further air or water pollution.
Darya Minovi, Rebecca Bratspies | December 9, 2020
On October 22, millions of Americans watched the final presidential debate, taking in each candidate's plan for oft-discussed issues like health care, the economy, and foreign policy. Toward the end, the moderator asked the candidates how they would address the disproportionate and harmful impacts of the oil and chemical industries on people of color. President Trump largely ignored the question. But former Vice President Joe Biden addressed it head on, sharing his own experience growing up near oil refineries and calling for restrictions on "fenceline emissions" -- the pollution levels observed at the boundary of a facility's property, which too often abuts a residential neighborhood. Less than three weeks later, Biden was elected president of the United States, making it possible for him to turn his campaign promises into action.
Laurie Ristino | December 8, 2020
At long last, we’ve reached “safe harbor” day, when states must resolve election-related disputes. Under federal law, Congress must count votes from states that meet today’s deadline. Donald Trump is essentially out of time to steal a second term; our democracy, it appears, will survive, at least for now. The last four years have been an urgent call to action to reclaim our democracy, to fix it, to reimagine it. The good news is we can use the tools of democracy to do so. The Center for Progressive Reform is launching Policy for a Just America, a major new initiative to repair and reimagine government. We’re developing a series of policy recommendations and other resources to advance justice and equity and create a sustainable future. We’re also using advocacy and media engagement tools to inform the public about the urgent need for reform and how to achieve it across all levels of government.
William Funk | December 7, 2020
Everyone who has studied what agencies in fact have done have concluded that agencies have largely failed in complying with varying retrospective review requirements. What is to be done? The Department of Health and Human Services (HHS) has a proposed answer: absent a retrospective review within a designated period, sunset the regulation.
Daniel Farber | November 20, 2020
It's clear that EPA has a central role to play in climate policy, but EPA does not stand alone. Other agencies also have important roles to play. Fortunately, the Biden transition team seems to have come to this realization.
Amy Sinden, James Goodwin | November 18, 2020
After taking their oaths of office in January, newly minted President Joe Biden and Vice President Kamala Harris will face a number of daunting challenges: the ongoing pandemic and economic downturn; structural racial and ethnic injustice; widening economic inequality; inadequate access to affordable health care; and climate change. And Congress, facing the prospect of divided control, is unlikely to respond with robust legislative solutions that the American people expect and deserve. The good news is that Biden and Harris will be able to meet these challenges head on by revitalizing governance and making effective use of the federal regulatory system. Better still, they can do so in a way that delivers justice and equity for all Americans.
Laurie Ristino | November 4, 2020
CPR is committed to meaningful public participation in all of America’s democratic institutions. We believe such participation is essential for ensuring more just and effective policies, but also for imbuing those policies with legitimacy and public confidence. Public participation is critical to empowering all Americans to have their say in our centuries-long project of forming a more perfect union.