A Great Nation Keeping Its Word: The Role of Tribal Treaty Rights in Climate Change Litigation


Noelia Gravotte

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This Note explores how the encounter between two cataclysms may provide an avenue to mitigate national and global catastrophe. The first of these upheavals is the arrival of settlers to North America. The second is the snowballing alteration to our global climate system from anthropogenic sources, known as climate change. Both of these disruptions have prompted massive social, economic, and ecological changes and exacted a large cost from Indian tribes. As a result of the first upheaval, European powers-and later the United States-entered into treaties with Indian tribes and an entire body of federal Indian law emerged from their interaction. These treaties often guaranteed the continued exercise of certain rights for Indian tribes-including the right to enjoy and use essential natural resources.

As this Note will explore, the resource rights reserved in these treaties and the principles that have emerged in the unique sphere of federal Indian law may provide a means to address the failure of state and federal governments to act on climate change. Such lawsuits could serve to address the specific effects of climate change on tribes whose treaty rights areincreasingly under threat. At the same time, these lawsuits would have the potential to spur more general governmental action to mitigate or adapt to the impacts of climate change and to pay for its harmful consequences, with profound impacts for the rest of the world.