Everything Old is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources

University of Kansas School of Law Working Paper

41 Pages Posted: 30 Aug 2015 Last revised: 9 Oct 2015

Elizabeth Ann Kronk Warner

University of Kansas - School of Law

Date Written: August 28, 2015

Abstract

In an age when vulnerable tribes and Native communities around the country are threatened by the impacts of climate change, advocates seek new and innovative legal tools to provide protection for endangered resources. To date, legal tools such as litigation and adaptation plans have been used with varying levels of success. For the first time, this article considers whether tribal treaties with the United States may prove helpful in protecting threatened resources. Treaties historically played an important role for many tribes, as they have a profound cultural connection and are a powerful expression of tribal sovereignty. Also, when courts find treaties applicable, tribes have generally been successful in protecting the resources at issue. In considering whether such historical documents may be applied in the climate change context, this article begins by looking at the treaty language of specific tribes, which have expressed interest in shielding treaty-protected resources, and also methodologies of interpreting treaties. The article then goes on to consider how such treaty language might be used in a legal claim against the United States, speculating as to uses under both domestic and international law. Ultimately, the article concludes that it may be possible to use treaty language to protect resources threatened by climate change under certain circumstances.

Keywords: climate change, tribes, Indians, Native Americans, American Indians, treaties

Suggested Citation

Kronk Warner, Elizabeth Ann, Everything Old is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources (August 28, 2015). University of Kansas School of Law Working Paper. Available at SSRN: https://ssrn.com/abstract=2652954 or http://dx.doi.org/10.2139/ssrn.2652954

Elizabeth Ann Kronk Warner (Contact Author)

University of Kansas - School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-1139 (Phone)

Paper statistics

Downloads
179
Rank
137,300
Abstract Views
716