Climate Displacement of Indigenous Peoples in the United States: An International Human Rights Catastrophe Taking Place Right Here and Right Now on [Native] American Soil

By Jens Camp

For many people, climate change presents somewhat of a distant concern: the concept represents something that may affect us all decades from now, but it does not currently have any clear, immediate impacts on our day-to-day interactions with the world. [1].  By contrast, for a group of five tribal nations in the United States, climate change has manifested itself in an entirely different way—it is resulting in the submergence of the places they call home. [2].  This blog post will discuss how four Louisiana tribal nations and one Alaska tribal nation are using international human rights laws to leverage the United States government and the state governments of Louisiana and Alaska to recognize and redress their governments’ contributions to the “climate displacement” [3] of indigenous peoples from their ancestral homelands. [4].

On January 15, 2020 [5], the Alaska Institute of Justice submitted a formal complaint on behalf of four coastal Louisiana tribal nations and one Alaska tribal nation to the United Nations (“UN”) alleging that the United States had violated “international human rights obligations by failing to address climate change impacts that result in forced displacement.” [6]. These tribal nations included: the Native Village of Kivalina; the Pointe-au-Chien Indian Tribe (“PACIT Tribe”); the Grand Caillou/Dulac Band of Biloxi-Chitimacha-Choctaw Tribe; the Atakapa-Ishak Chawasha Tribe of the Grand Bayou Indian Village; and the Isle de Jean Charles Band of Biloxi-Chitimacha-Choctaw Indians of Louisiana (“Isle de Jean Charles Tribe”). [7]. 

In the UN complaint, the tribal nations allege that the United States governments’ failure to adequately protect their populations from climate change “has resulted in the loss of sacred ancestral homelands, destruction to sacred burial sites and the endangerment of cultural traditions, heritage, health, life, and livelihoods.” [8].  The Isle De Jean Charles Tribe, for instance, presented factual evidence showing that over a period of sixty (60) years—from 1955-2015, the tribal nation’s land mass “decreased by 98% due to sea level rise, erosion, oil and gas infrastructure and the effects of levee development.” [9]. For other tribes that continue to depend on their land for their subsistence and agrarian livelihoods, like the PACIT Tribe, saltwater intrusion has extremely limited the ability of their tribal members to engage in these practices and has even forced some members to relocate to higher grounds. [10].  Now, after decades of United States governmental inaction, these tribal nations have presented evidence tending to show that the federal government has placed them at existential risk. [11].

Several of the tribal nations involved in the complaint face additional challenges to acquiring federal services to assist their people in mitigating the impacts of climate change on their nations because they are not “federally recognized tribes” [12] but, rather, only recognized by state governments or, in one tribal nation’s case, neither recognized by the federal government nor a state government. [13].  Federal funding from Section 322 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”), for example, is only available to States, federally recognized tribes, and local governments. [14].  This lack of funding has resulted in the United States government’s inequitable treatment of non-federally recognized tribes when it comes to disaster relief and has further denigrated the ability of these tribal nations to mitigate climate changes’ impacts on their communities. [15].

The five tribal nations, through their complaint, have urged the UN Special Rapporteurs [16] to make recommendations to the United States government and the State governments of Alaska and Louisiana to help rectify the human rights violations their peoples have suffered as a consequence of climate displacement and the United States government’s inaction to address the climate change crisis. [17]. The tribal nations’ list of recommendations includes, but are not limited to: “[g]rant[ing] federal recognition to the Tribal Nations in Louisiana so that these Tribes are able to access federal resources…”; “creat[ing] a Federal relocation institutional framework that is based in human rights protections to adequately respond to the threats facing Tribal Nations…”; and “[a]llocat[ing] funding to restore tribal lands and protect sacred sites, village sites, and subsistence hunting and fishing areas….” [18].  In summary, the tribal nations’ UN Complaint simply asks that the United States and the States of Alaska and Louisiana recognize the legitimacy of their governing bodies and to finally start doing the right thing by taking immediate action “to redress these harms and ensure the protection of human rights.” [19].

While climate change may not readily appear to impact the lives of many Americans, there are many others within United States borders that are forced to live with the consequences of the United States government’s and the private sector’s destruction of our environment.  The case presented by the five tribal nations’ UN complaint is a reminder that climate change is impacting us right now and right here on [Native] American soil.

[1] See Art Markman, Why People Aren’t Motivated to Address Climate Change, Harv. Bus. Rev. (Oct. 11, 2018), https://hbr.org/2018/10/why-people-arent-motivated-to-address-climate-change.

[2] Louisiana, Alaskan Tribes File UN Climate Change Complaint, Associated Press, Jan. 17, 2020, https://apnews.com/article/b324677e542281b23d811554dba6cd79#:~:text=The%20Louisiana%20tribes%20that%20filed,the%20Grand%20Bayou%20Indian%20Village.

[3] The term “climate displacement” refers to “the movement of people within a State due to the effects of climate change, including sudden and slow-onset environmental events and processes, occurring either alone or in combination with other factors.” Peninsula Principles on Climate Displacement Within States, Displacement Solutions (Aug. 2013), http:// http://displacementsolutions.org/wp-content/uploads/2014/12/Peninsula-Principles.pdf.

[4] See Rights of Indigenous Peoples in Addressing Climate-Forced Displacement, Colum. Climate L. Blog, at 9 (Jan. 15, 2020), http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200116_NA_complaint-1.pdf [hereinafter “Climate Displaced Tribes’ UN Complaint”].

[5] Associated Press, supra note 2.

[6] Ama Francis, U.S. Tribes Claim U.S. Gov’t Violates Human Rights Obligations by Failing to Address Climate-Forced Displacement, Colum. Climate L. Blog (Feb. 28, 2020), http://blogs.law.columbia.edu/climatechange/2020/02/28/us-tribes-claim-u-s-government-violates-human-rights-obligations-by-failing-to-address-climate-forced-displacement/.

[7] Climate Displaced Tribes’ UN Complaint, supra note 4, at 3.

[8] Id. at 9.

[9] Id.  When the tribal nations’ UN complaint mentions the levee system, it is referring to the Mississippi River flood control system. Id.

[10] Id. at 6.

[11] Id. at 4.

[12] Federal recognition is a legal status given to tribes by the federal government, which “requires the federal government to provide certain benefits.”  Martha Salazar, State Recognition of American Indian Tribes, 24 Nat’l Conf. State Legislatures 39 (Oct. 2016), https://www.ncsl.org/research/state-tribal-institute/state-recognition-of-american-indian-tribes.aspx.  By contrast, “State tribal recognition does not confer the same benefits as federally recognized tribes; it acknowledges tribal status within the state but does not guarantee funding from the state or federal government.” Id.

[13] Climate Displaced Tribes’ UN Complaint, supra note 4,at 15 (explaining that “[t]his lack of recognition impacts the ability of Louisiana Tribes to respond to environmental disasters because they do not directly qualify for many financial resources and cannot directly deal with the US Federal Emergency Management Agency (FEMA).”)

[14] Id.

[15] Id. at 14-15

[16] UN Special Rapporteurs are “independent experts appointed by the U.N. Human Rights Council… with the mandate to monitor, advise and publicly report on human rights situations in specific countries (country mandates) and on human rights violations worldwide (thematic mandates).” FAQS: United Nations Special Rapporteurs, Advanced C.L. Union, https://www.aclu.org/other/faqs-united-nations-special-rapporteurs (last visited Feb. 12, 2021).

[17] Climate Displaced Tribes’ UN Complaint, supra note 4, at 10.

[18] Id.

[19] Id. at 48.

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