Rising Tides, Rising Obligations: Enforcing Tribal Trust Responsibility for Climate Change Mitigation

Abstract

The trust responsibility, in the context of Federal Indian Law, is the unique political and legal relationship between the federal government and Native nations. The theory is based on the exchange of federal authority over Native peoples for their protection and well-being under the treaties signed between them. History has shown that the Government seldom acts in compliance with this relationship. Despite the trust’s colonialist doctrinal roots, Native nations continue to cite this relationship as a tool to protect their remaining resources. In the years since Cherokee Nation, which first discussed the trust relationship, the nature and extent of the relationship has been inconsistently applied by all government branches, to the point where many remain skeptical to the trust’s utility in the 21st century. The Trump administration continues to divest from previous efforts to reduce, or even study, the impacts of climate change in the face of rising average global temperatures and attendant environmental consequences. Native nations bear the brunt of the consequences as water becomes scarcer, forests burn and die off, and access to traditional resources becomes more difficult. While the trust responsibility is not often seen as a method to compel equitable relief, such as specific performance of treaty provisions, this Note will show that the canon of Federal Indian Law supports an affirmative, actionable trust responsibility that would bind federal agencies to climate change reduction efforts. The federal government must carry out its obligation to protect Tribal trust resources under their management, including mitigating climate change to minimize losses to such resources. The legal remnants of the original trust doctrine still retain enough power to control federal action in this regard, under the Administrative Procedure Act and the Indian Claims Commission Act. This new application of the trust to climate change mitigation could be a useful tool to turn a traditionally hollow, paternalistic doctrine into a means of crafting a sustainable future for Indigenous communities in line with its original intent.