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Nov 20, 2020
Scott W. Stern
According to most estimates, more than one hundred million people will be permanently displaced by climate change by 2050. Among the people most at risk of displacement are American Indians. If the government does nothing, or simply does not do enough, hundreds of Indian communities across the United States will be destroyed, the members of these communities devastated, endangered, and displaced.
This Article argues, for the first time, that the Indigenous peoples of the United States have an enforceable right to resettlement derived from the federal
trust duty toward American Indians. Long a subject of scholarly debate, unrealized potential, and crushed hopes, the trust duty provides a cause of action for Indians to compel the federal government to relocate them to higher ground, to areas where the effects of climate change will no longer threaten their lives and livelihoods. Indeed, the trust duty does not merely guarantee individual Indians federally funded relocation, if they desire it. It guarantees Indian communities relocation as communities.
Emerging from treaty obligations and the foundational Indian law cases of the 1830s, the federal trust duty today obligates the federal government to
provide educational services, healthcare services, adequate housing, and public safety to Indians. Courts have held that the trust duty requires the federal government to protect their water supplies and their lands, safeguard their wildlife resources, and to clean up hazardous waste. In the last thirty years, most of the litigation around the trust duty has focused on when federal mismanagement of tribal resources is compensable; in these cases, the tribes were seeking monetary damages, not declaratory or injunctive relief. These cases have yielded a confusing, apparently contradictory line of decisions. But they have also left an opening for a more radical interpretation of the trust duty. Unlike cases involving Indians seeking monetary damages, cases involving Indians seeking declaratory or injunctive relief allow courts to infer the existence of enforceable trust duties beyond those explicitly set out in federal law; such broader duties can—and have been—inferred from statutes, treaties, and the nature of the relationship between the government and Indians.
This Article shows that history, treaty language, statutory provisions, and the common law have given rise to a federal trust duty to protect Indian land, resources, homes, and lives from the effects of climate change, and to relocate Indians when this becomes the only way to maintain that protection. This trust duty is so far-reaching that it effectively guarantees a right to resettlement.
Such an argument may sound radical. It is not. It is founded in a common sense reading of case law, statutes, treaties, and common law trust principles. What is radical, on the other hand, is abandoning Indian communities that are facing climate annihilation. Compared to calls for new international agreements, bodies, frameworks, and funding to assist those whose homes will soon flood, melt, or otherwise become unlivable, the approach advocated here is quite modest. This Article seeks only to present a doctrinal argument that the federal government has a legal responsibility to relocate the hundreds of Indian communities facing imminent risks from climate change, if these communities assert this right.