In June 2012, the thirteen defendants in this case — all Yup’ik fishermen living a subsistence lifestyle — were charged with violating the Alaska Department of Fish and Game’s emergency orders restricting fishing for king salmon on the Kuskokwim River. The defendants moved for dismissal of the charges, asserting that their fishing for king salmon was religiously based activity, and that they were entitled to a religious exemption from the emergency orders under the free exercise clause of the Alaska Constitution.
“Subsistence is living from the land,” said Flynn. “It’s what we’ve always done. We go hunt ducks and seals in the ocean in the springtime. Ptarmigan. Salmon. My great-grandfather and grandfather told us we have to be very careful what we catch. God made them for everyone. I was living subsistence even when I was in the military. My whole life. I make a fish camp every year and dry 30, 40 kings. I set a net last summer but there was too much closure. Things have been rough.”
“And how did it feel not to be able to catch enough?” Davis asked him.
“I have a grandchild, 2 years old—” He paused and rubbed his eyes. Several other men in the gallery also began to cry. “My grandson said to me, ‘When we gonna go check the net?’ And I couldn’t say anything.”
Michael Cresswell, a state trooper, leaned over and whispered in my ear: “This is momentous. This is climate change on trial.”
Indigenous knowledge has the potential to ameliorate the extreme, destructive impacts of climate change. Given their enduring connection to place, indigenous communities are the subjects of knowledge acquisition relevant to the changing climate. Yet, because this traditional knowledge has been exploited by outsiders, indigenous communities may be wary to share such valuable information with individuals outside of their communities. And, even if traditional knowledge is shared, indigenous peoples may wish to maintain control over its use to guard against exploitation. This article addresses concerns associated with the stewarding of such traditional knowledge, in hopes of providing legal structure to the conversation. As the application of traditional knowledge becomes more apparent in the climate change context, a conversation to invoke action in the academy and legal systems is needed to create structures that value as well as protect the complexities of indigenous community-based research. Ultimately, this article strives to explore methods of holding those who seek and steward traditional knowledge accountable to indigenous communities. To accomplish this goal, this article examines traditional knowledge held by tribes within the United States that may prove helpful in the fight against the deleterious impacts of climate change. Then, having identified valuable knowledge possessed by tribes, the article goes on to examine the potential for existing domestic and international law to protect against the exploitation of such knowledge. After concluding that the existing law provides inadequate protection at best, the article asserts that tribes may be better served by enacting their own tribal laws to protect against such exploitation, and then explores the existing tribal law enacted to protect tribal traditional knowledge. This is the first article to provide concrete examples of traditional knowledge useful in combating the impacts of climate change and how the law may apply in such instances. This is also the first article to examine the use of tribal law to address the protection of traditional knowledge in-depth and provide a discussion of how some tribes are already utilizing tribal law to accomplish such goals. Accordingly, this article constitutes an important addition to the scholarship surrounding protection of traditional knowledge.
Seems odd to seed this so low, but there’s no significant litigation out there pending (unless the Court grants cert in this), no administrative or legislative action. Depressing. There’s this:
The Guidelines for Considering Traditional Knowledges in Climate Change Initiatives is available for download here.
This publication is intended to be an informational resource for tribes, agencies, and organizations across the U.S.
About the Guidelines:
The Third National Climate Assessment issued in May 2014 contained a chapter dedicated to the impact of climate change on tribal peoples. In light of the increasing recognition of the significance of traditional knowledges (TKs) in relation to climate change, a self-organized, informal group of indigenous persons, staff of indigenous governments and organizations, and experts with experience working with issues concerning traditional knowledges (The Climate and Traditional Knowledges Workgroup – CTKW), felt compelled to develop a framework to increase understanding of issues relating to access and protection of TKs in climate initiatives and interactions between holders of TKs and non-tribal partners. The Guidelines were originally developed to inform the Department of Interior’s Advisory Committee on Climate Change and Natural Resource Science (ACCCNRS) in May 2014.
This well-written article (link) paints a powerful picture about the devastating impact that a warming climate is having on Alaska Natives. Cited is the fact that an estimated 86% of Alaska Native villages will require relocation over the next 50 years because of climate changes.
In addition, the article looks at the case of 23 tribal members who were punished for defying a fishing ban. Briefs available here. Their case will be heard in the Alaska Court of Appeals, possibly sometime this summer. According to the article, “the fishermen’s civil disobedience has been framed as a First Amendment issue: The Yup’ik believe they have an obligation to continue their ancestral traditions.” In an amicus brief, the ACLU stated
A Yup’ik fisherman who is a sincere believer in his religious role as a steward of nature, believes that he must fulfill his prescribed role to maintain this ‘collaborative reciprocity’ between hunter and game. Completely barring him from the salmon fishery thwarts the practice of a real religious belief. Under Yup’ik religious belief, this cycle of interplay between humans and animals helped perpetuate the seasons; without the maintaining of that balance, a new year will not follow the old one.
While the trial judge appeared sympathetic, he still felt the state had sufficient reason for imposing the ban. It will be interesting to see how the court of appeals deals with this defense, particularly under current changing conditions.
There, [in the Court of Appeals] state-appointed judges will grapple with the same question the court faced in 1979, when an indigenous hunter named Carlos Frank was charged with illegally transporting a newly slain moose. Frank argued that he had needed the animal for a religious ceremony. Two lower courts found him guilty, but the Alaska Supreme Court reversed the verdict, calling moose meat “the sacramental equivalent to the wine and wafer in Christianity.”
This, in the end, is what’s at stake for the Yup’ik fishermen. Their villages may be swallowed up by the sea, but the people themselves won’t float away. They’ll relocate en masse or drift into the urban diaspora of Anchorage. But if they stop fishing king salmon, the Yup’ik believe they’ll lose something far more fundamental than their homes.
Indigenous peoples everywhere are preparing for or already coping with a number of climate change impacts, from rising sea-levels to shifting harvesting seasons. It is plausible that the capacity for environmental protection of two political institutions will change in relation to certain impacts: treaties and indigenous governmental jurisdictions recognised by the federal governments of nations such as the USA or Canada. This essay explores critically whether current solutions for these changes depend far too crucially on non-indigenous parties’ coming to an appropriate understanding of indigenous culture and self-determination.
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.
Among indigenous people around the world, human trafficking is taking a tremendous toll. While trafficking is not an exclusively indigenous issue, disproportionately large numbers of indigenous people, particularly women, are modern trafficking victims. In Canada, several groups concerned about human trafficking have conducted studies primarily focused on the sex trade because many sex workers are actually trafficking victims under both domestic and international legal standards. These studies found that First Nations women and youth represent between 70 and 90% of the visible sex trade in areas where the Aboriginal population is less than 10%. Very few comparable studies have been conducted in the United States, but studies in both Minnesota and Alaska found similar statistics among U.S. indigenous women.
With the current interest in resource extraction, and other opportunities in the warming Arctic, people from outside regions are traveling north in growing numbers. This rise in outside interactions increases the risk that the indigenous women may be trafficked. Recent crime reports from areas that have had an influx of outsiders such as Williston, North Dakota, U.S. and Fort McMurray, Alberta, Canada, both part of the new oil boom, demonstrate the potential risks that any group faces when people with no community accountability enter an area. The combination of development in rural locations, the demographic shift of outsiders moving to the north, and the lack of close monitoring in this circumpolar area is a potential recipe for disaster for indigenous women in the region. This paper suggests that in order to protect indigenous women, countries and indigenous nations must acknowledge this risk and plan for ways to mitigate risk factors.
Turtle Talk 
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