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Excerpted From: The Harvard Law Review Association, Chapter Two Indigenous Interpretations: Invoking the Third Indian Canon to Combat Climate Change, 135 Harvard Law Review 568 (April, 2022) (184 Footnotes) (Full Document)
“As long as the rivers run, as long as the tide flows, and as long as the sun shines, you will have land, fish and game for your frying pans, and timber for your lodges,” Washington Territorial Governor Isaac Stevens reassured the signatories of the 1855 Treaty of Point Elliott. The Duwamish, Suquamish, Snoqualmie, Snohomish, Lummi, Nooksack, Skagit, Swinomish, and other allied tribes' delegates took him at his word when formulating the agreement. Yet today, in what is now Washington State, climate change threatens to dry rivers, raise tides, burn timber, and deprive Indigenous communities of ancestral lands and subsistence sources. conditions disproportionately impact Native nations, especially in coastal regions like the Pacific Northwest. Indigenous peoples are turning to traditional management practices to revive struggling ecosystems. The Swinomish Tribe, sitting on low-lying coastal land it has inhabited for ten thousand years, calls itself the People of the Salmon. But the centerpiece of its culture is in danger; due to warming waters, the salmon season has shrunk from eight months to a few days. To fight the further degradation of the coastal habitat, the Tribe has invested in restoring tidelands and channels, planting trees along streambeds to cool waters, cultivating native plants to manage coastal flooding naturally, and restoring reefs to reduce ocean acidification. Even with these efforts, experts estimate that it could take ninety years for their fisheries to recover. This climatological innovation illustrates Indigenous resilience; however, tribes alone should not bear the burden of these mitigation efforts.
As climate conditions worsen, scholars and tribal leaders have proposed using treaty-based litigation to spur remediation of tribal lands. Some have highlighted how tribes are both adapting to climate change and fighting to maintain treaty rights as climate change forces migration away from treaty homelands. Others have observed that tribes are well positioned to bring these claims because “tribal treaty rights claims may face fewer issues related to redressability, such as manageable standards of judicial review and concerns about the political question doctrine, as compared to other climate change suits.” Several have argued the federal government must act proactively to reduce the effects of climate change on Indigenous homelands to fulfill its federal trust obligation as a guardian to tribal interests. And a few have pointed to litigation from tribes in Washington State as illustrating that state and federal governments must affirmatively protect treaty habitats. Despite academic interest in this area, treaty-based litigation to combat the effects of climate change remains relatively untested. strand of scholarship focusing on interpretative theories in American Indian law has identified the growing utility of the Indian canons of construction to treaty-based litigation. The Supreme Court established these canons in the nineteenth century. The purpose of these interpretive rules is to ensure that “[t]he language used in treaties with the Indians should never be construed to their prejudice.” While the U.S. Supreme Court has applied the Indian canons since the 1800s, its adherence to them has waxed and waned over two centuries. Following Justice Gorsuch's arrival, the Court has more explicitly embraced the third canon of interpreting treaty language in the way that Indigenous peoples would have understood it at the time of signing. The result has been resounding victories for tribes. While publications about treaties and climate change have discussed the canons, they have not extensively examined the third canon and its utility to climate change suits. All the canons are crucial in treaty-based litigation, but this Chapter focuses on the third as it especially empowers Indigenous perspectives and emphasizes Native nations' sovereignty in making these agreements. This approach may yield better litigation outcomes for tribes than pursuing causes of action under federal law that do not foreground Indigenous voices.
This Chapter argues that by showing courts how tribes would have understood treaty language at the time of signing, tribes can successfully sue to enforce treaty provisions that may blunt the worst impacts of climate change on traditional lifeways. Because many tribal hunting, fishing, and gathering resources are disappearing due to environmental degradation, this interpretive canon may be a potent tool for tribes in climate change litigation. By underscoring Indigenous understandings of these resources' preservation in perpetuity, treaty-based litigation may force states and the federal government to protect this wildlife, even as it faces extinction fueled by climate change. Tribes may seek government removal of man-made structures that harm the environment and support for state-tribal and federal-tribal co-management of resources, among other remedies. Ultimately, by integrating Indigenous worldviews into legal arguments via this canon, tribes may convince federal courts to vindicate the rights of nature for the first time.
Section A gives background on treaty-making with Native nations, tribal litigation against states and the federal government, and the Indian canons of construction. Section B shows how the third canon played a critical role in the long-running United States v. Washington (Culverts Case) litigation and Supreme Court treaty cases, which provide precedents for tribes' climate change suits. Section C surveys how tribes have brought climate-related suits against state governments and the federal government in the past two years. It suggests that tribes should explicitly invoke the third canon in suits addressing megafires, drought-stricken rivers, and fossil fuel pollution plaguing tribal lands. Section D addresses counterarguments and illustrates how this canon will effectively defend tribes' rights, even as available resources are rapidly disappearing due to climate change.
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Native nations have been at the forefront of fighting climate change. Now, tribes have brought this battle to the courtroom. Building on the Culverts Case and recent Supreme Court readings of treaty rights using the third canon, tribes can pursue litigation to reduce federal and state governments' roles in environmental degradation related to climate change. Tribes can weild the third canon creatively to argue for extending the rights of nature to resources that tribes viewed as relatives when drafting their treaties. Claims grounded in the third canon can help uphold rights that may disappear with the changing climate and may be particularly strong in cases where the federal government has assumed management over resources. Such strategies--combined with efforts outside the courtroom that strengthen tribal sovereignty, restore Indigenous stewardship, and prioritize thousands of years of land management knowledge-- will help ensure that the rivers, game, and fish continue to run as long as the sun shines.
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