How do tribal nation’s treaties figure into climate change?

Over the years that Ray Fryberg Sr. has worked at the Tulalip Tribes Natural Resources Department, he’s watched climate change subtly reshape the region. Located near the cool waters of Puget Sound in Washington state, the tribe is actively dealing with the already-apparent transformation of traditional territories: eroding shorelines, raising spring tides, and warming waters that hurt salmon by pushing food sources north. “Climate change is an everyday topic in our office,” Fryberg says. “The tribes seem to be the last bit of a vanguard the environment has.” 

Study examines how tribes have used treaty rights to successfully halt energy development on indigenous lands

Wednesday, April 24, 2019

LAWRENCE — The protests at Standing Rock in opposition to the construction of the Dakota Access Pipeline brought international attention to energy development on tribal lands. But work from as long as 200 years ago has recently proven to be effective in helping tribes stop energy infrastructure development on sovereign native land.

A University of Kansas law professor has written a study analyzing seven cases in which treaty rights have been upheld in courts or administrative bodies and prevented energy development in areas with legal ties to tribes opposed to the projects. Elizabeth Kronk Warner, KU professor of law and director of the Tribal Law & Government Center, examines the cases in an article published/forthcoming in the University of Connecticut Law Review.

The Dakota Access Pipeline case may have received the most attention in recent years, but it is only one of many such cases playing out across the country. Kronk Warner, a citizen of the Sault Ste. Marie Tribe of Chippewa Indians, analyzes four cases concerning coal terminals and three oil pipelines. In each case, courts ruled in favor of the tribes, finding that the agreements in treaties between the tribes and the U.S. government prevented such development. The tribes successfully argued such projects could harm their water, air and soil quality or impede on their rights to hunt, fish and gather food on the lands slated for development.

“For some tribes, the Earth takes on human qualities, so to pollute or damage the Earth for such work would be to commit a form of assault,” Kronk Warner said. “I was interested in how tribes have used treaties to halt that development. The biggest successes to date have been in the Pacific Northwest in slowing coal development.”

The article points out the Pacific Northwest is key territory for shipment of coal to Asia and other markets. Within the last decade, seven terminals were slated for construction on lands with tribal connections, and six were abandoned at the time of Kronk Warner’s writing, while the seventh was pending. Several of those abandoned were due to treaties guaranteeing tribes the rights to take fish in local waters. Increased pollution, traffic and related problems associated with energy development would threaten those rights, the courts and administrative agencies found.

“In coal cases, we can definitively show from these rulings that treaty rights played a role in various legal ways and helped the tribes that would be affected by these projects protect their sovereign rights,” Kronk Warner said.

In the cases of pipelines, water rights guaranteed by treaties have played a prominent role in halting such work. As all oil pipelines have failed to a certain degree, Kronk Warner said such a spill was not a question of if, but when, and therefore have significant potential effects on tribal treaty rights — especially for hunting and fishing.

In a similar case in Michigan, the Enbridge Pipeline runs under the Straits of Mackinac between lakes Michigan and Huron, and it connects the Upper Peninsula and rest of the state of Michigan. The pipeline has been falling into disrepair for many years, and developers proposed a major refurbishment akin to constructing a new pipeline. However, five tribes of the Chippewa Ottawa Resource Authority argued a spill would directly threaten their fishing rights established in an 1836 treaty. While the future of the project is not certain, the tribes successfully asserted their treaty rights to halt a project with which they had concerns, given the safety record of developers with oil spills.

While there has been a long history of treaty violations, especially by the U.S. government in terms of territorial issues, the recent rulings prove how effective treaties can be in protecting all manner of tribal rights, Kronk Warner said. To wit, the Supreme Court recently ruled in favor of the Yakama Nation in a case involving taxation and treaties.

Kronk Warner has researched and written on tribal law, energy and climate change extensively, including how treaties can be key in indigenous communities fighting climate changeenergy justice and how climate change often affects indigenous communities most severely.

The author also points out that treaties are not monolithic, and not all tribes have a uniform position on issues such as energy development. Some have even made energy development on their lands a priority and part of economic development strategies. Treaties that were negotiated in previous centuries were designed not just to protect people alive at the time of their signing but future generations as well. Those agreements still hold relevance today.

“I think these rulings are a perpetuation of tribes generally having good success protecting hunting, fishing and gathering rights. Tribes have recognized the successes of the past and are looking to how they can continue to protect their rights,” Kronk Warner said. “What I think is helpful about this article is it shows this isn’t just a one-off success here or there. There is a pattern of tribes successfully asserting their treaty rights.”

Photo credit: Wikimedia Commons. Protesters demonstrate against the Dakota Access Pipeline at the Stand With Standing Rock protests in Washington D.C. in 2017.

KU to mark Indigenous Peoples' Day with public events

Wednesday, October 03, 2018

Restoration over Retribution, KU Tribal Law event from noon to 1 p.m., Oct. 8, 2018.LAWRENCE — Students, faculty, staff and the general public will have the chance to commemorate Indigenous Peoples’ Day through two events Monday, Oct. 8, at the University of Kansas.

The first program observing Indigenous Peoples’ Day is “Restoration over Retribution: Peacemaking as a Path Forward,” set for noon-1 p.m. in the Big 12 Room at the Kansas Union.

Interim Provost and Executive Vice Chancellor Carl Lejuez will kick off the event with brief remarks and introduce Ron Brave, an Oglala Lakota Nation member with familial connections to the Pine Ridge Reservation in South Dakota. Brave will offer a traditional blessing to open the event.

Following Brave’s blessing, Shawn Watts, clinical associate professor of law and member of the Cherokee Nation of Oklahoma, will deliver a presentation that focuses on “traditional tribal methods of dispute and resolution.”

Watts points to Indigenous Peoples’ Day as an opportunity to recognize the strengths and contributions of native culture.

“[Indigenous Peoples’ Day] reminds the community that indigenous people are still a vital part of the fabric of our nation, have survived all of the policies designed to destroy us,” Watts said. “That sort of resilience is the essence of our tribal nations and our nation as a whole.”

Refreshments will be provided for attendees. 

In the evening, there will be a free screening of the documentary “By Blood,” followed by a conversation facilitated by Devon Mihesuah, the Cora Lee Beers Price Teaching Professor in International Cultural Understanding in the Humanities Program. The screening begins at 5:30 p.m. in the Jayhawk Room of the Kansas Union.

“By Blood” documents the fight of American Indians of African-descent to regain their tribal citizenship. This struggle has risen in prominence to showcase a broader conflict about race, identity and the sovereign rights of indigenous people. The film lasts about an hour, after which Mihesuah, an internationally recognized scholar on issues covering empowerment of indigenous peoples, will lead the audience in discussion.

Both of these events are free and open to all.

Indigenous Peoples’ Day commemorations can be traced back to a 1977 conference in which the attendees decided one of the ways to support indigenous peoples is to recognize the formerly known day of the discovery of America as Indigenous Peoples’ Day, according to a Time article.

In 1991, the city council of Berkeley, California, became the first city in the United States to declare recognition of Indigenous Peoples’ Day rather than Columbus Day. The following year, the city celebrated Indigenous Peoples’ Day through a variety of cultural activities and events on the 500th anniversary of Christopher Columbus’ arrival in America.

Multiple departments, offices and organizations at KU came together to organize and support these events, including the KU Tribal Law & Government Center, the First Nations Student Association, the Department of Indigenous Studies, the Native Faculty and Staff Council, the Office of Diversity & Equity and more.

Trump policies, related violence against natives lead to 'raping of Indian country,' law professors write

Wednesday, September 12, 2018

LAWRENCE — Energy extraction contributes to climate change that hits tribal land especially hard. When temporary extraction camps set up near reservations, sexual violence against Indian women and children spikes. Trump administration policies are relaxing regulations on energy extraction, making the aforementioned problems worse, yet tribes lack the legal authority to address crimes committed on their lands, despite being sovereign territory. The result is a “raping of Indian country,” two University of Kansas professors write.

In a forthcoming article in the Columbia Gender Journal, Elizabeth Kronk Warner, professor of law and director of KU’s Tribal Law & Government Center, and Sarah Deer, professor of women, gender & sexuality studies, outline the worsening problem of energy extraction and related sexual violence, and they propose legal solutions. Using the term "rape" for anything outside sexual assault is controversial, the authors acknowledge.

“In this article, we deliberately employ the language of ‘rape’ – despite its controversy – to tell the legal story of how violence against native women is directly linked to the fossil fuel industry and, by extension, climate change,” Kronk Warner and Deer write.

The article includes a summary of energy policy under the Trump administration and how it directly affects native communities and residents of tribal land. Numerous regulations have been eased or suspended, once-public land has been opened to drilling and fracking, the United States has left the Paris Accord, and the administration is even reluctant to admit climate change exists.

“It would be one thing to say this administration wasn’t following on the path of the Obama administration, but by rolling back regulations, it’s making things even worse,” Kronk Warner said.

The article cites examples of tribal lands throughout North America that have been hit especially hard by climate change and the resulting strain it puts on the community, including loss of livelihood, increased flooding and wildfires, and depletion of natural resources. Furthermore, when energy development takes place near but not on tribal land, the tribes are seldom consulted before work begins, or are only paid lip service at best, the authors argue, even when research has shown the tribal lands suffer negative effects from the developments.

While energy extraction can be viewed as metaphorical violence against “Mother Earth,” there have been well-documented increases in sexual and violent crime against native women and children who live near energy development sites.

“There is a real connection for many tribes that attribute feminine qualities to the land,” Deer said. “Those same qualities of fragility and femininity apply to crimes such as sexual assault.”

The article details the phenomenon of “man camps,” or temporary communities of migrant energy workers that are nearly all men. Rates of rape, sexual assault, kidnapping, human trafficking, child abuse, drug abuse and preying on native residents have spiked in native communities located near such camps. Perpetrators often prey on the most vulnerable members of native communities, including those addicted to drugs or experiencing mental health issues.

The problem is exacerbated by tribes’ legal inability to prosecute crimes committed on their land by non-Indian citizens. Federal law prohibits tribal courts from prosecuting anyone from outside the tribal community, regardless of the crime they may have committed on Indian land.

Kronk Warner and Deer call for a congressional fix to change that. Instead of relying on county, state or federal authorities who are often reluctant to prosecute crimes that may not have the “splash” or public relations appeal of “bigger” federal cases such as organized crime, allowing tribes to handle such cases would ensure more justice for native communities, they argue.

The 1978 Supreme Court decision Oliphant v. Suquamish Indian Tribe stripped authority of tribal nations to prosecute non-Indians for any crime. Only in 2013 was there a slight fix to a decision Deer called “wrong then and wrong now,” allowing for tribal prosecution of domestic violence cases committed by non-Indians against tribal members. Since then, cases that tribes have been allowed to handle have shown to be fair, impartial and devoid of any “revenge against the white man” that was commonly cited as a reason such courts couldn’t be trusted.

“There was an assumption that tribes were unable to be trusted with justice over non-Indian defendants. That has proven to be patently false,” Deer said. “Not allowing tribes to prosecute crimes that happen on their land really allows non-Indian men to prey on native women and children. Criminals know the law, and it’s an attraction to predators.”

Changing federal law to allow tribes to have a say in environmental matters that affect their land would also help give a voice to communities directly impacted by energy extraction and resulting climate change.

“Tribes are directly affected by these kinds of decisions and can bring a lot to the table in negotiations,” Kronk Warner said. “Tribes should have a say in whether they develop their own energy rights, and obviously need help from the federal government in cases that affect them, and that’s part of why we talk about an Oliphant fix.”

For decades, the federal government has stated it supports tribal sovereignty and self-determination. The authors write the government can prove it means what it says by allowing tribes to prosecute crimes committed by others on their land and be a part of decisions that affect their very livelihood.

“If somebody commits a crime in your community, you should have authority over it,” Deer said. “If you can’t decide what’s right and wrong for your community, then what is sovereignty?”

Tribal law conference to explore American Indian sports mascots

Monday, March 07, 2016

LAWRENCE — American Indian law scholars and advocates will gather in Lawrence this week to discuss legal issues surrounding the use of images of American Indians as sports mascots.

The 20th annual Tribal Law & Government Conference, Examining and Reconsidering Indian Mascots in the 21st Century, will runTribal Law and Government Conference Poster from 8:30 a.m. to 4 p.m.  Friday, March 11, at the University of Kansas School of Law. The conference is open to the public, but registration is required.

“Advocates have been challenging the use of Indians as mascots for decades, and there have been some notable recent developments in the last few months – such as court decisions related to the Washington, D.C., NFL team,” said Elizabeth Kronk Warner, director of KU Law’s Tribal Law & Government Center. “By exploring this topic, KU Law hopes to make a valuable contribution to the nationwide debate surrounding the appropriateness of such mascots.”

Suzan Shown Harjo, president of the Morning Star Institute, a national Native American rights organization, will deliver the keynote address. A poet, writer, lecturer, curator and policy advocate, Harjo has helped Native people recover more than 1 million acres of tribal lands. She served as congressional liaison for Indian Affairs during the Carter administration and later as president of the National Council of American Indians. Since the 1960s, Harjo has worked to convince sports teams to drop names that promote negative stereotypes of Native Americans. In 2014, Harjo received the Presidential Medal of Freedom, the United States' highest civilian honor.

Harjo’s address will be followed by a panel considering mascots from a Native perspective. A second panel will explore intellectual property and sports law perspectives on Native mascots. The program will conclude with a panel exploring ethical considerations when representing tribal nations.

Panelists include:

  • Cornel Pewewardy, professor and director of Indigenous Nations Studies, Portland State University
  • Rebecca Tsosie, Regents’ Professor, Sandra Day O’Connor College of Law; vice provost for inclusion and community engagement, Arizona State University
  • Dan Wildcat, director, Haskell Environmental Research Studies Center; dean of the College of Natural and Social Sciences, Haskell Indian Nations University
  • Marc Edelman, associate professor, Zicklin School of Business, Baruch College, City University of New York
  • Jasmine Abdel-Khalik, associate professor, University of Missouri-Kansas City School of Law
  • D. Michael McBride III, director, Crowe & Dunlevy

Two-and-a-half hours of CLE credit, including one hour of ethics, are approved in Kansas and Missouri. Register and preview the schedule on the conference website.

Tribes can serve as laboratories in fight against climate change

Wednesday, November 19, 2014

LAWRENCE — Supreme Court Justice Louis Brandeis wrote that states had the opportunity to serve as laboratories, testing new ideas and policies in the American federalist system. A University of Kansas law professor has authored a study arguing that American Tribal Governments are in a unique position to serve as laboratories for the fight against climate change and innovation in environmental law, especially given the federal government’s lack of action on the matter.

Elizabeth Kronk Warner, associate professor of law and director of the Tribal Law & Government Center at KU, has authored a study examining how 74 tribes in the United States are taking the lead in forming laws and measures to fight and adapt to climate change and lead in environmental law. The tribes are embodying Brandeis’ idea at a critical time and could have lessons to teach the rest of the country.

“That’s how we have viewed states from a legal view, as laboratories for new ideas, but why can’t we view tribes the same way, especially in terms of environmental law where the federal government has really stalled out?” Kronk Warner said. “I thought it would be interesting to look and see what we can learn from tribes and how it can be applied to states.”

In previous research Kronk Warner studied tribal codes to learn how they addressed climate change. For this study, which will be published in the Arizona State Law Journal, she analyzed tribal court decisions, regulations, customary laws, vision statements, tribal constitutions and other tribal legal documents. Many tribes, such as the Nez Perce in Idaho, Confederated Salish and Kootenai of Montana and others are already taking innovative legal actions to fight climate change and develop innovative environmental law.

Many tribes have adopted or are now forming climate change adaptation plans. The plans, which spell out how the tribes will form laws to adapt to the realities of a changing climate, are notable because environmental law largely takes a mitigation stance. While a good idea in spirit, mitigation laws, which aim to stop carbon emissions and prevent further damage from climate change, are incredibly difficult to pass politically, and in many cases it may already be too late to prevent all forms of damage, Kronk Warner said.

The tribal plans also largely consider culture as part of the legal landscape. Maintaining cultural heritage is vitally important to many tribes and is reflected in one plan that calls for preserving certain plants through means such as greenhouses and similar means, for example. State and federal law could stand to gain from considering American culture as more of a factor in the formation of laws, Kronk Warner said. Her research also found that tribal governments are keenly aware of the knowledge their ancestors have of the land on which they live.

“I think that especially could be a valuable lesson for states and the federal government,” Kronk Warner said. “Environmental knowledge is intensely regional. Having people share what they’ve learned in 100 years or more of living in an area can teach many lessons.”

Tribal governments are in a unique position to experiment with environmental law because they often are not bound by the same restrictions and regulations state and federal lawmakers are. That freedom to act not only allows tribes to be creative, it allows them to act more quickly.

“In theory, you could argue that they have more authority than states. They are sovereign entities, and they did exist before the formation of the federal government,” Kronk Warner said. “Tribes can also embrace the idea ‘we don’t need the federal government to be productive. We can do a lot on our own.’”

There are numerous examples throughout U.S. history of states experimenting, both successfully and unsuccessfully, with legal ideas. Slavery, legal drinking ages, speed limits, same-sex marriage, abortion and taxing philosophies all fit the mold.

Some of the tactics tribes are experimenting with have already started to show up in state and local governments. Cities such as Seattle and Miami, which face serious threats of salt water infiltrating fresh city water, have begun to enact climate change adaptation plans.

In future research, Kronk Warner plans to study how and whether tribes can use treaty rights to address climate change threats and how tribes enforce their environmental laws.

“I think it’s great and very empowering,” Kronk Warner said of tribes experimenting with environmental law. “It’s largely what the United States was intended to be, a group of states that can experiment with laws and ideas and the best ones are adopted. We’ve gotten away from the idea of states taking the lead. But this is a chance for tribes, states and local governments to seize the lead on environmental law.”

Indian country torn over gay marriage

A national news article discussing the conflict surrounding gay marriage amongst Indian tribes featured commentary from Elizabeth Kronk, professor of law.

Hotakainen wrote:

Scholars note that before their introduction to Christianity, many tribes accepted their gay, lesbian, bisexual and transgender members as “two spirits,” even giving them added respect because they were thought to have special powers.

Consequently, they say, same-sex marriage is easier for many tribal members to accept, though it still kicks up plenty of controversy.

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