Essay: Tribal Trustees in Climate Crisis

Abstract

The legal “cornerstone” of federal Indian law is the federal trust obligation. The duty was formulated by courts long ago to protect native nations against federal actions that harm the retained tribal property and resources. Yet in recent years, courts have diminished the force of the doctrine by equating it, for all practical purposes, with statutory standards. This essay turns attention to another doctrine, the public trust doctrine, which characterizes sovereigns as trustees of their resources. The public trust framework positions tribes as co-trustees with states and the federal government. This article suggests a role for tribes in climate crisis by asserting the right of co-trustees and co-tenants to prevent waste of the common resource – the atmosphere.

Keywords: public trust, Indian trust, climate crisis

JEL Classification: K00