Virginia Law Review

Camacho, Kronk Warner, McLachlan & Kroeze on Conservation Governance, Climate Change, and Indian Country

Matthew L.M. Fletcher

Alejandro E. Camacho, Elizabeth Kronk Warner, Jason McLachlan & Nathan Kroeze have published “Adapting Conservation Governance Under Climate Change: Lessons from Indian Country” in the Virginia Law Review. PDF

Here is the abstract:

Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article, by examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands, closes this scholarly and policy gap.

This Article first considers interventions to date, finding them to be lacking in even assessing—let alone addressing—climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on a review of publicly available tribal plans, this Article details how tribal adaptation planning to date has fared.

Focusing on climate change and ecological adaptation, this Article delves into the substantive, procedural, and structural aspects of tribal governance. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on “natural” preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should not only continue to tap the advantages of decentralized tribal authority but also complement it through more robust (1) federal roles in funding and information dissemination and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. This Article concludes by identifying areas where tribal management practices might serve as valuable exemplars for adaptation governance more generally, as well as areas in which additional work would be helpful.

New Scholarship on Conservation and Climate Change in Indian Country

Matthew L.M. Fletcher

Alejandro E. Camacho, Elizabeth Ann Kronk Warner, Jason McLachlan, and Nathan Kroeze have posted “Adapting Conservation Governance Under Climate Change: Lessons from Indian Country,” forthcoming in the Virginia Law Review, on SSRN.

Here is the abstract:

Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia, raising existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article closes this scholarly and policy gap, examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands.

The Article first considers interventions to date, finding them to be lacking in even assessing—let alone addressing—climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on the review of publicly available tribal plans, the paper details how tribal adaptation planning to date has fared.

In particular, the Article delves into the substantive, procedural, and structural aspects of tribal governance, focusing on climate change and ecological adaptation. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on “natural” preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should continue to tap the advantages of decentralized tribal authority but complementing it through more robust (1) federal roles in funding and information dissemination, and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. The Article concludes by identifying areas in which tribal management might serve as valuable exemplars for adaptation governance more generally, as well as areas for which additional work would be helpful.

Susan Williams

New Student Scholarship on Free Exercise Claims to Indigenous Rights

Matthew L.M. Fletcher

Anna Sonju has posted “Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue,” forthcoming in the Virginia Law Review, on SSRN. Here is the abstract:

This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Association, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard.

Next, this Note delves into three pre-existing theories from like-minded critics of Lyng, analyzing the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test which modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine.

Student Article Recommending Applying UNDRIP to Indian Tribes

Matthew L.M. Fletcher

The Virginia Law Review has published “Closing the Accountability Gap for Indian and Alaska Native Tribes.”

Here is the abstract:

The recognition of the right of Indian tribes to self-determination in federal and international law generates strong protections for tribal autonomy, allowing tribes to exercise extensive governmental powers. But federal and international law also combine to create an accountability gap for tribal human rights violations—that is, a space in which victims lack access to a remedy and tribes are able to act with impunity. Just as U.S. states and municipalities can use their governmental powers to both protect and violate human rights, so too can tribes. But when a tribe fails to provide a remedy for its violation, a victim may be unable to access a remedy under federal law due to federal deference to tribal sovereignty. A victim has no recourse directly against the tribe under international law, and tribal self-determination limits the ability of a victim to bring a complaint against the U.S under international law.
This Note proposes filling the accountability gap by recognizing that the right of Indian tribes to self-determination under international law contains a duty to respect, protect, and fulfill human rights. Rather than looking to the United States to provide recourse, which would infringe on tribal self-determination, this proposal recognizes that when a tribe violates a human right, the tribe is breaching international law and owes the victim a remedy. This Note argues that recognition of such a duty would benefit tribes by legitimizing tribal self-determination and governance and closes by discussing how the duty would be implemented in practice.