Tribal law can provide examples of innovative ways to address environmental challenges

Monday, October 10, 2016

LAWRENCE — New environmental challenges continue to threaten the air, water and lands Americans depend on, yet innovative federal government initiatives to combat them have disappeared in the last 30 years, a University of Kansas professor has written in a new article. In this void, tribal law can provide inspiration in new ways to develop and enforce laws to address issues such as climate change, as well as water, air and solid waste pollution.

Elizabeth Kronk Warner, professor of law and director of the Tribal Law & Government Center at the School of Law, has authored an article, forthcoming in Michigan Journal of Environmental and Administrative Law, in which she surveyed nine sovereign tribes in four states about environmental laws they have enacted and how they enforce them. The article also examines how such tribal laws can provide guidance for local, state and federal governments looking to address environmental threats.

Consideration of tribal environmental law is important because federal innovations in environmental law have stagnated since the 1980s, Kronk Warner writes. That comes after the 1970s, arguably the most innovative decade in the country’s history in terms of environmental advancement, with the formation of the Environmental Protection Agency and measures like the Clean Air Act and Clean Water Act.

There are 567 federally recognized tribes within the United States, sovereign and capable of developing their own laws, and many may be experimenting with new environmental laws. In her article, Kronk Warner surveyed tribes in Arizona, Montana, New York and Oklahoma to find out what laws they have on the books and how they are enforced, as well as provide an account of what tribes are doing in the words of their own people.

Kronk Warner notes several similarities among tribal, federal and state laws. Tribal laws often use many of the same tools as federal laws, such as requiring permits for certain actions, issuing fines and making arrests for those who violate them. Where they differ are in instances where tribes may close off tribal lands in order to protect areas with vulnerable water, lands or areas of spiritual significance.

“Laws that are originally tribal can provide inspiration for ideas at other levels,” Kronk Warner said. “I think that’s important to consider in this era when the federal government has stalled in environmental law innovation. One interesting way of dealing with environmental law enforcement is restricting who can and cannot access lands. That’s something we don’t typically see in federal law.”

Another unique enforcement tactic Kronk Warner found in her review of tribal law was banishment. If a non-native person has been found to commit violations of tribal environmental law, they can be banished from tribal lands under civil authority, giving tribal police the right to remove them if they return. Such practices are also uncommon on state and federal lands, but it would be worthwhile to see agencies try the approach under the right circumstances, she added.

The reason a lack of innovation is especially troubling now is because new environmental challenges have arisen since the 1970s. While measures enacted then are still effective at preventing disasters such as rivers being so polluted that they catch fire like the Cuyahoga in Cleveland, there are new challenges. Climate change was not well understood in the ‘70s, and forms of pollution such as non-point source water pollution, agricultural runoff and many air pollutants were not addressed in the Clean Water and Clean Air acts.

“We still have challenges today, though, and new challenges that weren’t even contemplated in those acts,” Kronk Warner said.

Tribal law can be an effective example for new innovations for several reasons.

Kronk Warner has published research on tribal law serving as an incubator for climate change policy and how climate change often affects indigenous populations around the world first and sometimes most severely, forcing them to take action. Meanwhile, political gridlock has prevented progress on a federal level.

However, states and local governments have shown more willingness to act on climate change and environmental protection laws. Nearly one-third of the tribes in the survey are taking action on water and air pollution, and more are enacting new laws regulating solid waste, all with enforcement guidelines. Many more around the country that were not contacted for the survey are likely doing the same, she said.

The most important step in turning tribal examples into inspiration for larger laws is simply to make more people aware of them and expand the conversation to those in power to make changes, Kronk Warner said. One of the best examples of new approaches is from tribes that have created assessments of natural resources and made hierarchies of what they want to protect. She’d like to see the federal government create such an assessment designating what is most important for the United States to protect, whether it’s water designations such as the Ogallala Aquifer or the Great Lakes and consider new ways to enforce existing in new laws to ensure they are effective.

“I think that would be a wonderful exercise to see the federal government engage in,” Kronk Warner said. “You can’t protect everything everywhere, but it would be worthwhile to establish priorities for our most precious resources. I’m sure it would be heavily debated, but it is certainly worth considering.”

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