Introduction:
Climate change is rapidly accelerating, as demonstrated by the recent and unprecedented fires in Brazil, Australia and California, as well as increasingly extreme weather events, such as hurricanes and “bomb cyclones.” Species extinction is at an all-time high, and the health of the world’s oceans and forests is in jeopardy. Yet, as a global society, we remain unable to grasp the scope of the problem or achieve a workable plan for the future. Countries such as the United States and Brazil have, in fact, accelerated fossil fuel energy production, with the current political leaders questioning whether climate change is “real” and denying responsibility for increased greenhouse gas emissions.
The human costs of climate change are extensive, but often invisible. This is particularly true for Indigenous peoples, which are among the world’s most vulnerable human communities. When the fires raged through the Amazon last fall, over one million Indigenous people from five hundred tribes were at risk of losing their homes.[i] Worldwide, there are an estimated five thousand Indigenous peoples.[ii] Many continue to live upon their traditional lands, exercising customary rights to hunt, fish, gather, and harvest timber. Indigenous peoples’ homes and livelihoods are increasingly in jeopardy due to deforestation, loss of species habitat, drought, and fire. In the United States, several Indigenous communities in the coastal areas of Louisiana, the Pacific Northwest, and Alaska face imminent relocation due to coastal erosion and flooding. Yet, there is no available program to assist climate refugees and the costs of relocating an entire community are substantially higher than the current levels of emergency aid offered to displaced families after floods and fires.
Ironically, a majority of the world’s biodiversity flourishes on the lands occupied by Indigenous peoples. Many Indigenous peoples have longstanding traditional knowledge about how to manage the environment in a way that fosters resilience. For example, in Australia, the forests that were still managed by Indigenous communities did not burn.[iii] Indigenous environmental knowledge (often called “Traditional Ecological Knowledge” or TEK) offers an invaluable lens into “sustainability” as an intergenerational practice.
For most Indigenous peoples, “sustainability” is the result of conscious and intentional strategies designed to secure an appropriate balance between human beings and the nature world, and to ensure that the land and environment are available for future generations.[iv] Oren Lyons, the esteemed Haudenosaunee Faith Keeper of the Turtle Clan of the Onondaga Nation, has described this ethic as follows: “Our leaders were instructed to be men of vision and to make every decision on behalf of the seventh generation; to have compassion and love for those yet unborn. We were instructed to give thanks for All that Sustains Us.”[v] Many other Indigenous cultures have similar beliefs and they assess and manage their natural environments with a sophisticated blend of scientific knowledge and philosophical reverence.[vi]
The five articles featured in this “Law Meets World” Series emerged from a Fall 2019 seminar on “Indigenous Peoples, Sustainability, and Climate Change.” Our seminar explored the impacts of climate change upon Indigenous communities throughout the world, in relation to the documented effects on global ecosystems, the policy responses to these environmental changes, and the social, cultural and economic consequences of climate change.
The global political response to climate change is embedded within the United Nations Framework Convention on Climate Change (UNFCC), which entered into force in 1994, and has fostered a series of intergovernmental accords, most recently the Paris Agreement of December 12, 2015. The Paris Agreement was the first international climate accord to reference the rights of Indigenous peoples, both within the preamble and the text. Indigenous peoples are identified as “nonparty stakeholders” and their traditional knowledge is explicitly referenced in the document. The Paris Agreement contributed to the emerging recognition that climate change is a human rights issue, and that it exacerbates the social, cultural and economic divides that emerged from colonialism. In addition, the multifaceted nature of the “climate problem” defies any ready solution and requires an interdisciplinary and critical analysis. Current literature anticipates the need for a transition in energy economies, for example, and also for solar radiation management technologies, although commentators differ on their recommendations. The scope and scale of these proposed changes will have significant impacts upon local and national economies.
This collection of articles engages several overarching themes of concern to Indigenous peoples, presenting them within an interactive, global context. As “nonparty stakeholders,” Indigenous peoples are often constrained by the policy decisions of the nation-states that encompass them.[vii] There are continuing tensions over Indigenous peoples’ political status and rights, the impacts of colonialism, and the relationship between culture and resilience. Each article focuses on the experience of a particular group with environmental change and the ways in which the group has adapted or attempted to mobilize political action to address the issue.
Indigeneity, Self-Determination, and the Impacts of Colonialism:
The United Nations Declaration on the Rights of Indigenous Peoples was adopted by majority consensus of the U.N. General Assembly in 2007, and it remains the most inclusive international document to date describing the human rights of Indigenous peoples, primarily their right to “self-determination.” The right to self-determination is a collective right to autonomy that belongs to all “peoples” under International human rights law, but was not considered applicable to “Indigenous peoples” for purposes of the Covenant on Civil and Political Rights and other major U.N. Covenants. The UN Declaration explicitly recognizes that Indigenous peoples are “peoples” for purposes of International human rights law and should enjoy the same rights as all other peoples.
Interestingly, the Declaration does not define “Indigenous peoples” and the issue of “Indigeneity” continues to be contested among global nation-states, in part because of the concern over separatist movements by dissident minority groups. Some countries in Africa and Latin American contend that the entire country is “Indigenous,” which alleviates the need to recognize particular group rights. The settler colonial nations of the United States, Australia, New Zealand and Canada, initially refused to support the Declaration, contending that their historical relationship with Indigenous peoples offered sufficient recognition for their rights. Each of these nations has since signed onto the Declaration as a matter of public policy, partly because the text is merely prescriptive until the nation-states agree to transform the document into a Convention.
As a policy matter, the concept of “Indigeneity” is generally constructed around the intergenerational relationship of human communities to specific places.[viii] The ties of Indigenous communities to their ancestral lands often date from “time immemorial” and are accompanied by an understanding that the people were intentionally placed upon these lands at the time of Creation, and they have a duty to care for the land and the natural world.[ix] This duty is often equated to “stewardship,” rather than “ownership,” which carries consequences for current claims of sovereign authority over territory. In many cases, Indigenous peoples have distinctive languages, cultures and religions that distinguish them from surrounding communities. Often, these religions are land-based, leading to controversies over sacred sites management on aboriginal lands that are no longer under tribal authority.
In relation to climate change, Indigenous communities throughout the world share a series of common characteristics. As Professors Kronk and Abate note, these include (1) increased vulnerability to climate change because of the location of their communities; (2) a unique connection to the land (legal, cultural, spiritual); (3) a history of colonization and oppression; and (4) a unique set of human rights under international law.[x]
The “unique rights” of Indigenous peoples under international human rights law stem from the right of Indigenous peoples to “self-determination,” which includes the right to “freely determine their political status and freely pursue their economic, social and cultural development.”[xi] Because Indigenous peoples are so closely associated with their traditional lands, the Declaration recognizes their right to “maintain and strengthen their distinctive spiritual relationship with their traditionally owned and otherwise occupied and used lands, territories, waters and coastal seas . . . and to uphold their responsibilities to future generations in this regard.”[xii] This constellation of rights can be framed as “environmental self-determination,” affirming the intergenerational relationship of the collective group to their traditional territories.[xiii]
The human rights framework is intended to facilitate a model of voluntary political engagement between the nation-states and the Indigenous peoples within their borders to determine the rights of Indigenous peoples to self-government and to the enjoyment of their traditional lands and cultures. In practice, however, this engagement is complicated. This is demonstrated by two articles, which deal, respectively, with controversies over management of traditional forest resources and food systems.
Shields describes the experience of the Haida people who have lived on a set of islands off the coast of British Colombia, Canada for at least 13,000 years and well before the last Ice Age.[xiv] In the mid-19th century, the Haida numbered approximately 15,000, but after the smallpox epidemics hit, that number plummeted to less than 600 by the turn of the century. The British Colonial government resettled the Haida people to a portion of their ancestral lands. The Haida Gwaii First Nation had a longstanding relationship to the dense rainforest in that region, but the British colonists and their Canadian successors clearcut much of the rainforest during the last century.
The government of British Columbia denied recognition for the political sovereignty of the Haida Gwaii First Nation for many years, attempting to relocate the people from their forest lands in order to facilitate logging in the area. Shields demonstrates how the Haida Gwaii First Nation continued to exercise “cultural sovereignty” over their lands, alternately arranging protests and engaging media campaigns to draw attention to the environmental destruction of the rainforest. In 1993, the Haida people and their political allies mobilized to create a cooperative management body premised on the “commitment to preserve Gwaii Haanas for future generations” as well as to protect Haida culture. In 2007, the Haida people negotiated a stronger co-management agreement with the Province of British Columbia, which authorizes the Haida to manage fifty-percent of the Island lands.
This collaborative governance model attempts to create political parity between parties that share a problematic history of power relations. As Shields demonstrates, the Haida Gwaii collaborative governance model is linked to several important legal rights, including the Haida First Nation’s aboriginal title, its customary governance of the lands and timber, and the Nation’s right to consultation.
This case study of environmental self-determination is a testament to the nature of Indigenous sovereignty movements as both political and cultural.[xv] The Haida Gwaii First Nation continued to exercise its traditional and customary right to manage its traditional lands and territory until the Canadian government extended political recognition for this action through the negotiated co-management agreement.
As Singh’s article demonstrates, the experience of the Sikh people in the Punjab region of South Asia has been quite different. The ancestral landbase of the Sikh people was divided by the international border between India and Pakistan, and “Indigeneity” is contested by the respective national governments. India maintains that all people within the country are “Indigenous,” and yet the country has a history of differentiating “scheduled tribes” and other marginalized groups according to their character as “backward classes.” The Sikh community is not perceived to be Indigenous because the members lack the “primitive” characteristics associated with the country’s “scheduled tribes.” The Sikh people are instead treated as a religious group that lacks any special rights.
In fact, as Singh points out, the Sikh people have a tradition of identifying as a sovereign people, and they have, at various times in history, mobilized to form themselves as an independent state. The Sikh people were harmed by British colonialism, in particular, the process of “agricultural colonization” in the Punjab region, which impaired the ability of the Sikh people to control their traditional lands and waters. This form of colonization also jeopardized the community’s right to sustain their traditional food cultivation practices, which are associated with a commitment to equitable distribution of resources. Even after 1952, when India formally became a nation-state, the country denied the sovereignty of the Sikh people, leaving them vulnerable to drought and desertification, contamination from pesticides in the water, and intermittent flooding from the poor management of regional dams.
Singh also discusses Sikh spiritual traditions, which are linked to “food sovereignty,” or the right to “safe, nutritious and culturally acceptable food.” In particular, the tradition of the “free kitchen” ensures that even the most needy members of the community have access to food at a local Sikh Temple. This practice fosters community resilience and is associated with longstanding beliefs that farming, cooking and eating together ensure sustainability.
Although the Indian government does not recognize the Sikh people as entitled to political self-determination, the Sikh people continue to exercise cultural sovereignty in their effort to control the health and integrity of their land, waters, and food system.
Alternative Frameworks for Indigenous Resilience: Cultural and Political Sovereignty in the United States
The United States government recognizes the sovereignty of “federally-recognized American Indian and Alaska Native Nations and considers them to be “domestic, dependent nations.””[xvi] The “trust relationship” between recognized tribal governments and the United States has many benefits, but primarily ensures that the tribe can govern itself on its own land, under the protection of the United States government. Indian reservations and other “trust lands” are jurisdictionally distinct from the states that surround them, and tribes have broad powers of self-governance at the executive, legislative and judicial levels. This means that a tribal government can regulate its lands and associated natural resources, including water, fisheries, forest reserves, and food systems. If tribal natural resources are jeopardized by off-reservation activities, the political status of the tribal government may create a right to consultation and remediation for impacts to tribal resources.
But what about Indigenous peoples who lack federal recognition? The rights of Native Hawaiian people and unrecognized tribes are not clearly delineated under U.S. law, which causes significant challenges for these groups when they seek to protect their lands and practices from the effects of climate change. Members of unrecognized tribes often maintain traditional subsistence lifeways, just as other tribes do. However, without jurisdiction over their ancestral lands and resources, these Indigenous peoples are vulnerable to the political will of the majority.
Stevenson’s article discusses the impacts of climate change on Native Hawaiian rights. The Native Hawaiian people voyaged to the Hawaiian Islands from Polynesia more than 1000 years ago and numbered approximately 600,000 prior to European contact. By 1920, the population had fallen to 24,000 as a result of colonization and multiple disease epidemics. Although the Native Hawaiian people were part of an internationally recognized Constitutional Monarchy in the19th century, the overthrow of the Kingdom of Hawaii by American insurgents resulted in the creation of the “Republic of Hawaii.” The lands of the Native Hawaiian people were then annexed into the United States as a Territory, over the protests of the Hawaiian people, by a Joint Resolution of Congress. This paved the way for statehood in 1959.
Today, the Kanaka Maoli people have an Indigenous cultural identity and a history of political sovereignty that predates the existence of the United States. Yet, due to the circumstances of their involuntary annexation, they do not have a recognized governmental status, as do American Indian tribal governments. Therefore, Native Hawaiian people are quite vulnerable to the impacts of climate change, including “rising sea levels, ocean acidification, tropical storms, loss of biodiversity, and decrease in water availability.” Because of their history of colonization, Native Hawaiian people today are also disproportionately homeless (28% of the homeless population in Hawaii) and in poverty, which makes them even more vulnerable to the impacts of climate change.
Stevenson’s article highlights the ways in which the Kanaka Maoli people have exercised cultural sovereignty over their traditional lands, waters and natural resources, and have engaged in effective political advocacy to gain recognition for their ancestral and customary rights. In the 1970s, for example, this advocacy resulted in recognition of water rights for Native Hawaiian Taro farmers in the Waiahold-Waikane Valley as an aspect of Hawaii’s public trust doctrine. The public trust doctrine was later memorialized in the State’s 1978 Constitution, which also acknowledges Native Hawaiian cultural rights. The Constitutional recognition for Native Hawaiian customary and collective rights has proven to be instrumental in managing the impacts of private property owners seeking to develop the coveted and scarce lands in Hawaii.
The Isle de Jean Charles Tribe in Louisiana has had a much more difficult time securing recognition for its ancestral and customary rights. As Wright’s article demonstrates, this community descends from members of the Biloxi, Chitimacha and Choctaw Nations who fled to southern Louisiana in the early 19th century in order to escape removal to the Oklahoma Indian Territory. Today, this Indigenous group lacks federal recognition, and it does not have a reservation landbase. Although the community has lived on this Island for nearly 200 years, it is now on the front line of climate change due to the loss of 98% of the island, which is submerged in the Gulf of Mexico. The broad scale of oil exploration in the Gulf of Mexico has accelerated climate change and also caused massive pollution of the water and associated food resources.
Wright’s article discusses the current plan of the Army Corps of Engineers to build a levee (the “Morganza Levee”) on the Island in order to mitigate flood damage. The Army Corps conducted an environmental impact statement in 2013 and decided to locate the levee in a way that protects the Louisiana Department of Wildlife and Fisheries land on the north side of the Island, but omits the Isle de Jean Charles community from protection. The Army Corps asserted that it would be cost-prohibitive to include the community’s lands within the protected area because there was not an available ocean ridge within proximity to support the creation of a levee. Wright shows, however, that the elders of the community possessed traditional ecological knowledge (TEK) about the area that revealed the existence of a nearby oceanic ridge, suitable for levee-building. The Intergovernmental Panel on Climate Change (IPCC) considers TEK to be an important form of environmental knowledge and defines it as: “a cumulative body of knowledge, practice, and belief, evolving by adaptive processes and handed down through generations by cultural transmission, about the relationship of living beings (including humans) with one another and with their environment.”[xvii]
Wright argues that the Army Corps’ failure to include the Isle de Jean Charles Tribe’s TEK within the EIS process was “arbitrary and capricious” and will result in the total loss of the community’s land. She argues that this action can be remediated through a revised EIS because construction of the Morganza levee has not yet commenced, and it is not scheduled for completion until 2035. Although the EIS was completed in May, 2013, Wright argues that an APA action might still be available after the expiration of the 6 year statute of limitations if the claim is brought by the youth of the Isle de Jean Charles Tribe, who lacked legal capacity to bring the action when they were minors. This class is also entitled to bring the claim because they will be the generation that will be forced to relocate and will never “be able to fully experience their culture on their ancestral lands.”
The Rights of Children and Future Generations:
What are the rights of future generations of Indigenous peoples to enjoy the lands and cultural traditions of their ancestors? Sheila Watt-Cloutier, an Inuit leader who has advocated for climate justice, describes this issue as central to the survival of the Inuit people, who occupy a traditional territory that sits on top of parts of Canada, Russia, Greenland and the United States.[xviii] This is the land “of the cold, the ice, and the snow.” Climate change now imperils the home of the Inuit, and Watt-Cloutier describes Inuit human rights advocacy as an act of “defending our right to culture, our right to lands traditionally used and occupied, our right to health, our right to physical security, and our right to our own means of subsistence and our rights to residence and movement. And as our culture is based on the cold, the ice and snow, we are in essence defending our right to be cold.”[xix]
Of course, there is no “ right to be cold” under the domestic law of nation-states. Yet the claim to cultural survival is pivotal to the future of Indigenous peoples, and international human rights law opens the door to the articulation of that right. Lee’s article discusses the Sacchi v. Argentina case, which involves an international human rights petition by a group of 16 children from twelve countries against five nation-states that signed onto the U.N. Convention on the Rights of the Child and its Optional Protocol affording a communications procedure for alleged violations of the Convention. This international treaty recognizes the human rights of persons who are under 18 years of age, but also explicitly references the rights of Indigenous children in three provisions. Lee’s article analyzes each of these provisions to demonstrate how the rights are jeopardized by climate change. For example, the right to education can be associated with the transmission of traditional knowledge, as well as the “physical and spiritual connections between people and nature that are developed through a close association of place over generations.” If climate change destroys Indigenous cultural heritage, as Wright and Lee argue, this is a form of cultural genocide. Environmental destruction also jeopardizes the right of Indigenous children to enjoy the “highest attainable standard of health” because community members are increasingly unable to access traditional foods and medicines or clean water, and some communities may lose their landbase altogether, as is occurring in the Arctic, Louisiana, and the Marshall Islands.
The remedies for violation of the Convention are likely to be restricted to Advisory opinions, unless an argument can be made that the violations are of an urgent nature. Nonetheless, the Petition has extraordinary moral force. The claimants are named persons under the age of 18, and all are suffering from “deadly and foreseeable consequences of climate change” that “jeopardize their right to life.” The narratives are powerful and include a litany of devastating losses for their communities caused by persistent and unprecedented heatwaves, floods, tropical diseases that were previously unknown in particular areas, collapse of food systems, loss of subsistence livelihoods, and frequent storms. The physical and psychological tolls are described in detail, making visible a set of harms that would otherwise escape global reflection.
The five respondents named in the petition include several countries, such as Argentina and Brazil, which are among the top emitters of global greenhouse gases. The United States signed the Convention, but has not ratified it. Therefore, the United States is not a named respondent. As Wright and Lee demonstrate, the future of Indigenous children may depend upon a combined strategy that invokes both domestic and international human rights law.
Conclusion:
Although the challenges of climate change are daunting, the articles within this Series offer a vision of hope in describing the resilience of Indigenous communities. For over two centuries, Indigenous communities have been subject to relocation, forcible assimilation, and the loss of lands and resources. Yet, Indigenous peoples are also among the most resilient communities in the world. In many cases, they continue to live on their traditional lands, whether or not they have a “recognized” right to do so. They continue to steward their resources, gather traditional foods, cultivate the health of their forests, and protect their waters, whether or not they have a legal right to do so. They are able to name these places in their languages, and to describe the essence of each place, along with its purpose and associations. The spiritual connection between the current generation and the ancestral generations is unbroken, and so is the thread that binds this generation to successor generations. As Deborah Bird Rose notes, Westerners tend to have a “temporal orientation” that reflects their spatial orientation, believing that “we face the future” and that the “past is behind us.” [xx] She compares the temporal/spatial view of Indigenous Australians, who “face the source,” believing that each generation follows along behind their ancestors, and their descendants follow along behind them.” In this mode, we follow our Ancestors back to the Source. In this view, human beings ultimately unite with their spiritual source, embodied within creation. This is a vision that inspires life. In the Western view, humans march blindly forward to an uncertain end.
As Oren Lyons observes, the original teachings of Indigenous peoples talk about the duty to care for the land, to not take more than is needed for survival, and to honor the taking of First Foods with ceremony, with reverence, with gratitude. As the authors of these articles demonstrate, these teachings have never been more relevant. They offer enduring lessons of resilience and survival for human communities, across time and place.
[i] “Fires Blaze Across Amazon,” Smithsonian Bulletin, Aug. 19, 2019.
[ii] See S. James Anaya, Indigenous Peoples in International Law (2d ed. 2004).
[iii] NY Times Article
[iv] Rebecca Tsosie, “Indigenous Sustainability and Resilience to Climate Extremes: Traditional Knowledge and the Systems of Survival” 51 Conn. L. Rev. 1009, 1013 (2019),
[v] Oren Lyons, Keepers of Life, in Kathleen Dean Moore & Michael P. Nelson (eds), Moral Ground: Ethical Action for a Planet in Peril, at 42 (2010).
[vi] See Rebecca Tsosie, “Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge,” 21 Vermont L. Rev. 225, 272-87 (1996).
[vii] See generally Rebecca Tsosie, “Climate Change, Sustainability, and Globalization: Charting the Future of Indigenous Environmental Self-Determination,” 4 Envt. & Energy L. & Pol’y J. 188 (2009).
[viii] Anaya, supra note ___ at 3.
[ix] Rebecca Tsosie, Land, Culture, and Community: Reflections on Native Sovereignty and Property in America, 34 Ind. L. Rev. 1291 (2001).
[x] Randall Abate and Elizabeth Ann Kronk, “Commonallity Among Indigenous Communities: An Introduction to Climate Change and its Impacts on Indigenous Peoples,” 26 Tulane Envt’l L.J. 179
[xi] UN Declaration on the Rights of Indigenous Peoples, Art. 3, (G.A. Res. 61/295 (Annex), UN GAOR, 61st Sess., Supp. No. 49, Vol III, UN Doc. A/61/49 (2008).
[xii] Art. 25, UN Declaration on the Rights of Indigenous Peoples.
[xiii] See Rebecca Tsosie, “Indigenous Peoples and Environmental Justice: The Impact of Climate Change,” 78 U. Colo. L. Rev. 1625 (2007).
[xiv] Erin Shields, “Conservation, Co-Management, and Power-Balancing in Haida Gwaii,” (Law Meets World, 2019).
[xv] See, e.g. Wallace Coffey and Rebecca Tsosie, “Rethinking the Tribal Sovereignty Doctrine,” 12 Stan. L.& Pol’y Rev. 191.
[xvi] See, e.g., Cherokee Nation v. Georgia, 30 U.S. 1. 17 (1831) (finding that Cherokee Nation was not a “foreign nation” for purposes of U.S. Constitution, but was instead a “domestic dependent nation” under Federal protection); see generally Goldberg, Tsosie, Riley and Clinton, American Indian Law: Native Nations and the U.S. Federal System (7th ed. 2016)
[xvii] Wright at p. 4, citing Anthony Moffa, Traditional Ecological Rulemaking, 35 Stan. Envtl. L.J. 101, 106-07 (2016).
[xviii] See Sheila Watt-Cloutier, The Inuit Right to Culture Based on Ice and Snow, in Moore and Nelson (eds.), Moral Ground, supra note ___ at 28.
[xix] Id.
[xx] Deborah Bird Rose, “So the Future Can Come Forth From the Ground,” in Moore & Nelson, Common Ground, supra note ___ at 154-55.
