Climate Change and its Effect on Indigenous Peoples of the Southwest

American Indian Law Review Volume 38 | Number 1 2013 Climate Change and its Effect on Indigenous Peoples of the Southwest Josh Merrill University of Oklahoma College of Law Follow this and additional works at: http://digitalcommons.law.ou.edu/ailr Part of the Environmental Law Commons, Indian and Aboriginal Law Commons, and the Water Law Commons Recommended Citation Josh Merrill, Climate Change and its Effect on Indigenous Peoples of the Southwest, 38 Am. Indian L. Rev. 225 (2013), http://digitalcommons.law.ou.edu/ailr/vol38/iss1/6 This Comment is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized administrator of University of Oklahoma College of Law Digital Commons. For more information, please contact . CLIMATE CHANGE AND ITS EFFECT ON INDIGENOUS PEOPLES OF THE SOUTHWEST Josh Merrill * Introduction Climate change is no longer a topic relegated to the corners of science. The legal field has been forced to confront the phenomenon as the Supreme Court of the United States has recognized this issue in many recent cases. In one of the more widely discussed opinions concerning climate change, Justice Stevens wrote for the majority: The harms associated with climate change are serious and well ecognized. Indeed, the NRC Report itself—which EPA regards as an “objective and independent assessment of the relevant science,”—identifies a number of environmental changes that have already inflicted significant harms, including “the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of ice on rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years . . . .” 1 Scientists have reached the conclusion that humans are dramatically impacting the environment. During the last few decades, the vast majority of these scientists have pointed to CO2 emissions as the cause for this impact. 2 These changes have manifested in different ways, including rising temperatures, arctic sea ice retreat, permafrost melt, loss of glaciers and snowpack, changes in the water supply, and rising sea levels.3 There is a near consensus in the scientific community that many of these changes are irreversible (at least in the short-term), and the consequences society faces as a result are permanent.4 Climate change presents very real problems over * Third-year student, University of Oklahoma College of Law. 1. Massachusetts v. EPA, 549 U.S. 497, 521 (2007) (alteration in original) (citations omitted). 2. See generally Lenny Bernstein et al., Climate Change 2007: Synthesis Report, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (Nov. 17, 2007), http://www.ipcc.ch/pdf/ assessment-report/ar4/syr/ar4_syr.pdf [hereinafter IPCC Synthesis Report]. 3. Id. at 30. 4. See Susan Solomon et al., Irreversible Climate Change Due to Carbon Dioxide Emissions, 106 PROC. OF THE NAT’L ACAD. OF SCI. 1704, 1705-07 (2009). 225 Published by University of Oklahoma College of Law Digital Commons, 2013 226 AMERICAN INDIAN LAW REVIEW [Vol. 38 the next millennium for both the United States and the world as a whole. It is too late to take preventive measures to completely avoid climate change. However, we still can—and must—prepare for it. The topic of climate change has come to the forefront of the political and national news scene over the past twenty years as new scientific data has emerged. This has caused the federal government, as well as many state governments, to somewhat reluctantly begin to address the problem. There must be broad, sweeping national policy changes that result in federal legislation to respond to an ever-increasing number of droughts and natural disasters wreaking havoc across the country. Native Americans are one of the groups most heavily affected by climate change despite having what is likely one of the smallest environmental impacts. 5 Many tribes have deep religious and spiritual connections with the land that they inhabit.6 In many cases, tribes’ land and water interests have been allocated to them through treaties, federal legislation, and court decisions. 7 Potential forces outside of tribes' control threaten their land and water resources. The federal government and the courts have an obligation to ensure that tribal cultures and natural resources are not threatened as a result of the imminent climate changes. There is a strong ethical argument that because of the history of relations between tribal governments and the United States, as well as Native Americans’ minimal contribution to the problem, that the federal government should first ensure their well-being. 8 With the federal deficit ever-increasing and the overall political climate of the country becoming exponentially more hostile, lawmakers must be made aware of the potential financial and social impact of the natural resource problems that Native American communities are facing. This Comment discusses the climate change crisis facing the tribes as well as the appropriate responses needed from the United States government. The first part of this Comment will discuss the empirical evidence pertaining to climate change as well its far-reaching environmental consequences. The second part will focus on the direct threat climate change poses to Southwestern Native American tribes. This examination will include climate change’s impact on the tribes’ culture, 5. See Jonathan M. Hanna, Native Communities and Climate Change: Protecting Tribal Resources as Part of National Climate Policy, NAT. RESOURCES L. CTR. AT U. OF COLO. L. SCH., 1 (Sept. 19, 2007), https://adapt.nd.edu/resources/696/download/07_RR_ Hanna.pdf. 6. Id. 7. Id.; see also Winters v. United States, 207 U.S. 564 (1908). 8. See Hanna, supra note 5, at 1. http://digitalcommons.law.ou.edu/ailr/vol38/iss1/6 No. 1] COMMENTS 227 natural resources, religion, and the resulting legal challenges presented. Third, this Comment will bring to light any steps the federal, state, and local governments have taken to address climate change in general, as well as specific steps take to reduce its impact on Southwestern Native American tribes. Fourth, the Comment will discuss recommendations for action on the part of Congress, the courts, and executive agencies. The strengths and weaknesses of each approach will be evaluated in order to select a superior option. Finally, the Comment will briefly discuss the tribes’ best adaptation and mitigation options in response to climate change. Climate change effects are being felt across the entire country. 9 There is an imminent need to address the growing concerns that accompany such an inevitable, historical change. 10 As with any national shift in policy, Native American tribes must play a role in the decision making process.11 The federal government has an ethical obligation to ensure that the tribes are adequ (...truncated)