Here.
NYTs Coverage of Nez Perce Fight against MegaLoads and Climate Change
Here.
climate change
Lynn & Whyte: “Indigenous Peoples, Climate Change and the Government-to-Government Relationship”
Kathy Lynn and Kyle Powys Whyte have posted “Indigenous Peoples, Climate Change and the Government-to-Government Relationship” on SSRN. Here is the abstract:
Climate change impacts present indigenous peoples with distinct challenges, from the loss of species needed for subsistence practices like fishing and plant gathering, to coastal erosion that may force some communities to migrate away from areas they have inhabited or used for many years. Students, activists, environmental managers, scholars and corporate and political leaders of all heritages should be aware of how indigenous peoples must address climate change impacts from global to community-level scales, and the obstacles they may encounter due to intersecting oppressions, like cultural imperialism and disempowerment. To create such awareness, there is a need for more work that describes the specific sites of interaction relevant to indigenous peoples and climate change. Sites of interaction are the local and regional places where indigenous peoples are in relationships with governments, non-governmental organizations (NGOs), networks and alliances. Better understanding the relationships that indigenous peoples have with these groups and institutions contributes to fostering unique and necessary indigenous approaches to address climate change that reflect their unique cultural connections to the earth. This paper focuses on one of the critical sites of interaction for indigenous peoples in the United States — the government-to-government relationship. While the government-to-government relation is not a new approach, this paper examines how it might operate in indigenous climate change adaptation contexts in the United States. We describe a set of examples of consultation and collaboration and offer seven recommendations that demonstrate the value of tribal responses to climate change.
Scholarship on Using CERCLA to Save the Native Village of Kivalina
Robert J. Martin has published “The Village of Kivalina is Falling Into the Sea: Should CERCLA Section 9626(b) Be Available To Move the Village from Harm’s Way?” in the Barry Law Review.
Here is the abstract:
The Village of Kivalina, and other similarly situated Native Alaska villages, are in danger of falling into the sea. Regional climate change is melting the permafrost that acts as the foundation of their communities. Sea ice that once acted as a barrier during storm season today melts earlier, and erosion rates are increasing. Kivalina’s situation is further worsened by the threat of contamination from a nearby open dump. Without permanent relocation, Kivalina and its residents face imminent harm.
Congress has given the President authority to permanently relocate an Indian tribe or Alaska Native village under CERCLA Section 9626(b). This article proposes that the President exercise such authority to protect the health and welfare of Kivalina and its residents. In view of the longstanding trust obligation of the United States to Indian tribes and Alaska Native villages, which is embodied in treaties, statutes, executive orders and court decisions, the President should exercise his clear authority to protect the Village from harm.
Supreme Court Denied Cert in Native Village of Kivalina v. Exxon Mobil
Complete Cert Stage Briefing in Native Village of Kivalina v. ExxonMobil Corp.
Washington and Oregon Governors Ask for Review of Coal Export Consequences
This week, the governors of Washington and Oregon asked the Obama Administration to review proposed coal export terminals. The Seattle Times article is here and the Huffington Post article is here. The letter linked in the Seattle Times article is here.
An excerpt from the Seattle Times
Western coal producers, saddled with low prices and weak demand in U.S. markets, are eager to send more coal from the Powder River Basin in Montana and Wyoming to Asia. Much of that coal is on federal lands, but some is on tribal, private or state lands.
The proposals include two export terminals in Washington to be in Cherry Point, which is near Bellingham, and in Longview. There are also proposals for terminals in Oregon.
The prospect of using the Pacific Northwest as a launch point for coal exports has triggered intense controversy in both Oregon and Washington.
Seattle Human Rights Commission’s official comments are here. The Commission’s resolution on coal and the impact on Indian tribes is here. (Thanks to C.S.)
Finally, here is a Northwest Public Radio story about the potential effects of the proposed export plans on the Lummi Tribe.
Native Village of Kivalina v. ExxonMobile Cert Petition
Here:
Native Village of Kivalina Cert Petition
Question presented:
Petitioners Native Village of Kivalina and the City of Kivalina, a federally-recognized tribe and an Alaskan municipality, are the governing bodies of an Inupiat village located on an Arctic barrier island that is being destroyed by global warming. Greenhouse gases have caused the Earth’s temperature to rise, especially in the Arctic, which has melted the land-fast sea ice that protects the village from powerful oceanic storms. Kivalina is thus now exposed to erosion and flooding from the sea and must relocate or face imminent destruction.
Petitioners seek damages — not injunctive relief–from the largest U.S. sources of greenhouses gases under the federal common law of public nuisance. In American Electric Power Co. v. Connecticut (“AEP”), 131 S. Ct. 2527 (2011), the Court dismissed a federal common law claim for injunctive relief, holding that the Clean Air Act displaces “any federal common law right to seek abatement” of emissions because the Clean Air Act “provides a means to seek limits on emissions [2] of carbon dioxide from domestic power plants — the same relief the plaintiffs seek by invoking federal common law.” AEP, 131 S. Ct. at 2537, 2538 (emphasis added).
The question presented is: Whether the Clean Air Act, which provides no damages remedy to persons harmed by greenhouse gas emissions, displaces federal common-law claims for damages.
Lower court materials here.
Brookings Institute Recent Scholarship on Arctic Indigenous People, Internal Displacement, and Climate Change
From the Brookings Institute site:
“For thousands of years, Arctic peoples have migrated in response to changing environmental conditions. But today climate change is putting unprecedented pressure on those indigenous communities. Temperatures are rising much faster in the Arctic than in the rest of the world, raising questions about the extent to which significant numbers of indigenous people will move away from their traditional habitats and whether they will be able to maintain their cultures and livelihoods. For the 400,000 indigenous people in the Arctic these are not only questions of adaptation but also of culture and survival.”
The issue of internal displacement also lead to questions of governmental and administrative responsibilities. If an Indigenous community is displaced because of rising waters, will the government set aside new lands? Where would they be? Would current subsistence and cultural needs also be considered? Some serious concerns for communities in Alaska as well as Indigenous communities around the world.
Here is the link to the articles:
http://www.brookings.edu/events/2013/01/30-arctic-displacement-climate-change
AALS Indian Law-Related Programs (and Newsletter)
Thanks to Ezra Rosser for completing a newsletter for the AALS Indian Law Section: Indian Law Newsletter Jan 2013
The final agenda is here. The Indian-law related programs are all scheduled for Sunday.
10:30 – 12:15 AM
[6250] Section on Indian Nations and Indigenous Peoples
Cambridge, Second Floor, Hilton New Orleans Riverside
Indian Gaming and the Future of Tribal Sovereignty
Speakers: Matthew L.M. Fletcher, Michigan State University College of Law
Venus McGhee Prince, Attorney General, Poarch Band of Creek Indians, Atmore, AL
Alexander T. Skibine, University of Utah, S. J. Quinney College of Law
George Skibine, Counsel, SNR Denton, Washington, DC
Indian gaming, which came to the forefront of American Indian affairs in the 1980s and 1990s, is now a $27 billion a year business. Indian gaming dramatically restored the relative fortunes of some of the poorest tribes, and helped tribes regain control over their lands and their lives. However, with increased competition, Indian gaming revenues have leveled off and projections for the future of Indian gaming widely vary. How will Indian nations respond? Our panel includes leading legal scholars and practitioners in the Indian gaming field.
Business Meeting at Program Conclusion.
2:00 – 3:45 PM
[6425] Crosscutting Program: (A program selected after a competitive process by the AALS Committee on Special Programs for the Annual Meeting)
Grand Ballroom D, First Floor, Hilton New Orleans Riverside
Climate Change and Indigenous Peoples: The Intersection of Environmental Law, Natural Resources Development, Water Law, Energy Law, International Law, and Indigenous Law
(Papers to be published in the Tulane Environmental Law Journal)
Moderator and Speaker: Elizabeth Kronk, University of Kansas School of Law
Speakers: Randall S. Abate, Florida A&M University College of Law
Sara Bronin, University of Connecticut School of Law
Sarah A. Krakoff, University of Colorado School of Law
Judith V. Royster, The University of Tulsa College of Law
Previous AALS panels related to climate change have addressed the increasing importance of including a discussion of climate change in any law school curriculum. The purpose of the panel is to generally discuss the importance of including indigenous people in any discussion related to climate change. Particularly important is the recognition that legal “answers” to climate change may be different when indigenous people are involved. The panel will then focus on how climate change and its impact on indigenous people may be discussed in several different doctrinal areas. Specifically, each presenter will discuss the importance of this subject matter to his or her doctrinal area and include a discussion of how the topic may specifically be incorporated into lesson plans. The proposed topic is innovative in that program attendees will walk away with not only an understanding of why the topic is important but with actual lesson plans and proposed materials to include in their
4:00 – 5:45 PM
[6480] Section on Law and Anthropology
Cambridge, Second Floor, Hilton New Orleans Riverside
Human Rights, Culture, and Indigenous Development
Moderator: Kathryn Fort, Michigan State University College of Law
Speakers: Kirsten Carlson, Wayne State University Law School
Nicole B. Friederichs, Suffolk University Law School
Mark Goodale, Associate Professor, George Mason Institute for Conflict Analysis and Resolution, Arlington, VA
Kirsty Gover, J.S.D., Programme Director, Comparative Tribal Constitutionalism Research Programme, Melbourne Law School, Carlton, Australia
The theme of this panel will be the exploration of several questions related to indigenous development, such as the following:
1.) How can human rights be used to develop a political and cultural environment in which indigenous peoples can achieve self-determination?
2.) What obstacles must be confronted as indigenous peoples use human rights law to assert their rights to resources, culture and self-governance?
3.) What strategies exist to develop the practice of intercultural education, exchange, respect and diplomacy in the field of human rights?
4.) What is the relationship between international human rights norms and processes and indigenous culture and governance?
Turtle Talk 
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