Manataka™ American Indian Council
Photo courtesy Native American Rights Fund
BOULDER, Colo. – Climate
change may be only the latest of many challenges facing Indian country, but
it is having devastating effects in parts of the far North where at least
one Native village faced with inundation by melting polar ice is suing
energy companies it says are responsible.
John Echohawk, executive director of Boulder-based Native American Rights Fund, said the village of Kivalina, Alaska, located on the Chukchi Sea coastline, is suing energy companies for contributing to the public nuisance of global warming it says is going to force the community to relocate to avoid being flooded out.
The Native village’s case may be strengthened by a ruling Sept. 21 in the 2nd U.S. Circuit Court of Appeals in New York City which was brought for similar reasons, he said.
The federal appeals court upheld eight states and the City of New York and others in their suit against six power companies which operate fossil fuel-fired power plants in 20 states and which, the plaintiffs contend, contribute to the damage caused by climate change.
Legal experts warn,
however, that utilities in similar cases could return to the lower courts to
defend against the charge they are contributing to a public nuisance in the
form of global warming, or they could appeal to the U.S. Supreme Court. Too,
a district court in California on Sept. 30 dismissed a lawsuit by the Native
Village of Kivalina against ExxonMobil Corp. on issues of the litigants’
standing to bring suit and the nature of the political question, according
Constitutional Accountability Center.
Echohawk traced the environmental and legal challenges faced by the indigenous peoples of this continent from European contact through early treaties, attempted assimilation and termination, and decades of Supreme Court rulings as part of an international panel on indigenous rights Sept. 23 at the University of Colorado Law School.
The U.S. Supreme Court ‘will not help us; they will go out of their
way to reinterpret the laws in ways that are detrimental to us.’
– John Echohawk, Native American Rights Fund executive director
“Climate change is a huge
issue that affects us all,” he said, “and it will affect our lands.”
Kivalina, a primarily Inupiat community, was traditionally protected against
the severity of winter storms by sea ice formed from fall through spring,
but the village may have to relocate to avoid being washed away as a result
of climate change, he said.
Kivilina would ask the power and energy companies to pay relocation costs, an action supported by the 2nd Circuit, which said there is a legal right to be protected from a public nuisance. Nine oil companies, 14 electric power companies, and one coal company are involved.
Ice melt in the Arctic is already changing the migration patterns of animals that people hunt, and some parts of the Russian tundra are flooding, said panelist Alexander Arbachakov, a forestry/wildlife expert and member of the Shor tribe of Siberia. Another panelist, Samuel Nnah Ndobe, Center for Environment and Development, Cameroon, said vast forests in the Congo on which indigenous populations and their cultures depend could disappear with climate change.
Tracing the relationship over time between Natives and non-Natives in North America, Echohawk told the panel that “European nations came to realize that we were Indian nations and came and dealt with us through treaties – they recognized we were sovereign nations” along with states and foreign nations.
With the end of treaty-making in 1871, the U.S. “continued to recognize sovereign status” although in the 1880s it began a policy of assimilation through ignoring treaties and breaking up sovereign lands. Assimilation, downplayed in the 1930s, resurfaced in the 1950s with attempted tribal termination, and in the 1970s NARF began to get support in the court system to change “wrong-headed political policies” of assimilation and termination to a recognition of the right to self-determination and self-government.
Today, 562 tribal nations have sovereign authority over 100 million-plus acres of land, he told the panel, but that amount represents only about two percent of original holdings “and our rights are under attack all the time.”
Tribes used to find support in the U.S. Supreme Court, but now the makeup of the court is “different – they will not help us; they will go out of their way to reinterpret the laws in ways that are detrimental to us,” he said, noting that tribes are attempting to resolve disputes outside the high court “because if you go there, you’re probably going to lose and hurt everybody.
“The speculation is, of course, that the (Supreme) Court’s not going to change much in the foreseeable future,” he said, noting that the more conservative justices are younger. Indian cases may be helped by the appointments to vacancies in other judgeships throughout the federal system, an issue on which NARF is working with the National Congress of American Indians.
Arbachakov, of Russia’s Taiga Research and Protection Agency, said the country’s 200,000 indigenous people have seen the loss of their resources and suffer high rates of disease, with a male average life expectancy of only about 42 years. Although current thought is to establish political areas where indigenous peoples could live, there is an “enormous amount” of resistance from the government.
Ndobe said 40 million people depend on the forests of the Congo Basin, where the rights of farmers have been more readily recognized than those of indigenous residents and where crude oil extraction and transport have had “huge environmental and social consequences.” A victory was won when management plans for newly created, protected national park areas included the rights of indigenous peoples, he said.
The panel was convened as the culminating event of nonprofit Global Greengrants Fund’s biennial Global Advisors Retreat and was co-sponsored by the Center for Energy and Environmental Security of the University of Colorado School of Law and the CU departments of anthropology and geography.
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