Treaties could be key in helping indigenous communities fight effects of climate change

Tuesday, November 17, 2015

LAWRENCE — Some may view treaties between indigenous peoples and the federal government as a relic of the 19th century, but they just might provide a way for tribes to mitigate the effects of climate change on their lands and communities. A University of Kansas law professor has authored a study showing that provisions of treaties can lead the way to fighting the effects of climate change, which often hit native communities earliest and most severely.

Elizabeth Kronk Warner, associate dean of academic affairs, professor of law and director of the Tribal Law and Government Center at the KU School of Law, has authored “Everything Old is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources.” The article examines provisions of two native treaties and how they have been successfully argued to require the federal government to address damages done to fishing resources of the Swinomish and Nez Perce tribes. The cases are proof that treaties, which were no longer drafted after the 1870s, could be a new way to fight the effects of climate change on native communities.

“I don’t think anyone has ever looked at treaties for this reason,” Kronk Warner said. “It may not be a cure-all, but it could certainly be part of a larger solution. It’s applying what has been a very successful solution to a new context.”

In the case of the Swinomish and Nez Perce tribes, their treaties with the federal government contained specific provisions that their fishing access and rights be maintained as they were a vital part of their culture, daily life and very survival. When those rights were infringed, the tribes were successful in bringing action that eventually required the federal government ensure fulfillment of those rights.

There are more than 500 federally recognized tribes in the United States, many of which have treaties with the federal government. Those who are negatively affected by climate change could potentially use the treaties as a legal tool to mitigate those effects, Kronk Warner said. For example, tribes with provisions regarding hunting rights whose lands are affected by drought, wildfires, rising coastlines or other effects of climate change could bring suit arguing the federal government is bound by its treaty to protect those rights.

Federal courts have proven in recent history to be very protective of hunting and fishing rights protected by treaties. Kronk Warner said provisions related to infrastructure and many other aspects of native life could potentially be part of a legal strategy as well. She added that, in her legal opinion, the argument that climate change was not a foreseeable issue when the treaties were signed would not be an argument relieving the federal government of its obligation to uphold the agreement.

Kronk Warner compares the approach to litigation against big tobacco companies. It took decades to find the right legal strategy to eventually hold the companies liable for health damages their products caused. Similarly, using treaty provisions to mitigate the negative effects of climate change could be the next step in an ongoing battle, in which climate change is already devastating the lands and resources of tribes across the country. Looking to treaties could be a valuable tool, as litigation and adaptation plans have had varying levels of success.

Kronk Warner, a citizen of the Sault Ste. Marie Tribe of Chippewa Indians, has written extensively on climate change, native law and indigenous knowledge’s role in the fight against climate change. She was also recently appointed a district judge for the Prairie Band Potawatomi Nation and will serve on the Healing to Wellness Court. Her most recent article will be published in the University of Nebraska Law Review and is available online.

While climate change has already begun having negative effects on native lands, communities and resources, the legal fight to ameliorate the effects is still fairly new. Looking to treaties, which many have failed to view as a solution to a modern problem, could be key.

“How climate change impacts tribes will continue to change, and how tribes react to that will change as well,” Kronk Warner said. “Examples are highly localized, but I think this is an approach that any tribe with a treaty could look to use.”

Voter ID laws focus of Kansas civil rights committee

"The Kansas division of a federal civil rights commission will investigate whether voter identification laws have affected turnout around the state.

The Kansas Committee of the U.S. Civil Rights Commission voted Tuesday to hold hearings to determine if turnout in some communities has been suppressed, KCUR-TV reported.


Committee chairwoman Elizabeth Kronk said there is concern that the law 'disproportionately impacts certain age groups and certain racial categorizations.'

Smashing the Glass Ceiling: Women in the Law

"Female lawyers have seemingly overcome systematic exclusion, but many still struggle with stress, influence and power as they are paid less and do more on average per week in terms of work (domestic and professional) than men.


'I regularly encounter people who believe that because there may be de jure gender equality there is de facto gender equity. The glass ceiling is real and it persists to this day,' reveals the Honorable Elizabeth Ann Kronk Warner, who serves as the Director of the Tribal Law & Government Center at the University of Kansas School of Law."

Indian country torn over gay marriage

A national news article discussing the conflict surrounding gay marriage amongst Indian tribes featured commentary from Elizabeth Kronk, professor of law.

Hotakainen wrote:

Scholars note that before their introduction to Christianity, many tribes accepted their gay, lesbian, bisexual and transgender members as “two spirits,” even giving them added respect because they were thought to have special powers.

Consequently, they say, same-sex marriage is easier for many tribal members to accept, though it still kicks up plenty of controversy.

Book examines how climate change affects indigenous people

Tuesday, April 09, 2013

LAWRENCE — Climate change’s effects are starting to be felt around the world, and indigenous populations are in many cases among the first to have their ways of life disrupted. Yet these populations are often powerless, both politically and economically, to convince those with the ability to do something about it to do so. A University of Kansas law professor has co-edited a book examining how climate change has affected indigenous people worldwide and how they can legally address the issues in the future.

Elizabeth Kronk, associate professor of law and director of the Tribal Law & Government Center at KU, has co-edited “Climate Change and Indigenous Peoples: The Search for Legal Remedies” with Randall S. Abate, associate professor of law at Florida A&M University. The editors gathered work from a collection of legal and environmental experts from around the world, many of whom hail from indigenous populations. Their entries examine how climate change has affected indigenous peoples on numerous continents and how future legal action may help their cause.

“As far as I know it’s the only book of its kind,” Kronk said. “There are lots on climate change, but none that I know of that examine the effects of it on indigenous people. A lot of times when you hear about climate change people say ‘when or if this happens.’ Well, it’s already happening, and indigenous people especially are being forced to deal with it.”

The book examines climate change through an indigenous perspective in North and South America, the Pacific Islands, Australia and New Zealand, Asia and Africa. The contributors, all either practicing lawyers or law professors, both explain the problems faced by indigenous populations and break down attempts to devise legal, workable solutions.

For example, Inuit citizens living near the Arctic in the United States, Canada, Russia and Greenland are in a region of the world that is warming four times faster than other regions. Yet, litigation brought by residents of the Native Village of Kivalina against companies that contribute large amounts of greenhouse gasses to the environment has been unsuccessful.

As a problem of global scale, climate change is incredibly complex and difficult to deal with via law and policy. There are local, municipal, national and international laws that often conflict.

“The indigenous people of the Arctic are literally losing their homeland,” Kronk said. “But climate change law is complicated, when you add all those levels of law, it’s even more so.”

The book’s 20-plus contributors outline ways indigenous populations can navigate the complex web of climate change law, and review both national-level successes and international-level shortcomings. They examine both options of mitigation law — which intends to halt and reverse climate change affects — and adaptation law, which acknowledges climate change and ways to legally adapt to it.

“Climate Change and Indigenous Peoples” could prove beneficial to legal scholars, environmental lawyers and anyone with an interest in indigenous populations among others.

“Whether as a novice's starting point or expert's desktop reference, I cannot think of a more useful resource for anyone interested in climate policy for indigenous peoples,” said J.B. Ruhl of Vanderbilt University Law School.

Knowing that one legal strategy will not fit all, the books authors spend a good deal of time exploring how specific indigenous populations can deal with climate change realities unique to their part of the world, within the frame of the law. The text also examines how indigenous peoples, often on the front lines of the climate change battle, can inform the rest of the world in dealing with the many associated social and legal issues.

Indian wind projects get help

Tribes hoping to develop wind projects face the same challenges as the rest of the industry, such as the low price of competing natural gas and a longstanding transmission bottleneck in rural areas. Besides the additional BIA review, financing a tribal wind project is complicated by thorny legal and political issues inherent in the tribes' status as sovereign nations.

Sault Tribe member teaches Indian law at KU

Elizabeth Ann Kronk is an associate professor of law and director of the Tribal Law and Government Center at the University of Kansas (KU). She is also a Sault Tribe Appellate Court Judge and a Sault Tribe member. Kronk was the tribe’s chief appellate court judge from the spring of 2008 until February of this year when her term expired and has since been reappointed to another four-year term. She accepted her current position at KU this past June overseeing the university’s Indian Law Program.


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