Issue 7

Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article, by examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands, closes this scholarly and policy gap.

This Article first considers interventions to date, finding them to be lacking in even assessing—let alone addressing—climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on a review of publicly available tribal plans, this Article details how tribal adaptation planning to date has fared.

Focusing on climate change and ecological adaptation, this Article delves into the substantive, procedural, and structural aspects of tribal governance. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on “natural” preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should not only continue to tap the advantages of decentralized tribal authority but also complement it through more robust (1) federal roles in funding and information dissemination and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. This Article concludes by identifying areas where tribal management practices might serve as valuable exemplars for adaptation governance more generally, as well as areas in which additional work would be helpful.

Introduction

In the wilderness of Alaska, where snow-covered landscapes stretch as far as the eye can see, a profound ecological drama is unfolding. It is a story that speaks of the intimate bond between the land, its creatures, and the Native peoples who have called it home for millennia. At the heart of this story are herds of caribou, majestic creatures with antlered crowns, whose annual migrations have been a spectacle of nature and a lifeline for the Native communities of Alaska.¹ 1.Christian Thorsberg, Andrea Medeiros, Kristin Reakoff & Brittany Sweeney, Caribou and Communities in a Changing Climate, ArcGIS StoryMaps(Dec. 5, 2023), https://storymaps.arc‌gis.com/stories/158c95ff398440e8b875a791e2bec2f8/ [https://perma.cc/2VA2-GPDJ] (“Caribou (Rangifer tarandus) have roamed the circumpolar north for hundreds of thousands of years. . . . Alaska Native peoples and other subsistence users depend upon this cyclical movement for annual harvests, relying on caribou for food, clothing, cultural practice, and emotional and spiritual health.”).Show More But as the world warms due to climate change, the Arctic’s icy facade begins to crack and melt, causing profound transformation.² 2.Id.(“[A]s a warming climate changes their habitat—causing seasons to shift, ice to melt at different times of the year, and unpredictable precipitation—the population of many of Alaska’s caribou herds has declined, affecting not only the species, but humans who have lived with and from them since [time] immemorial.”).Show More The caribou, long attuned to the rhythms of the frozen tundra, now find their ancient routes disrupted as climate change negatively affects food and habitat.³ 3.See Elizabeth Manning, Caribou and Climate Change: The Nelchina Caribou Herd, Lichens and Fire, Alaska Fish & Wildlife News (Mar. 2008), https://www.adfg.alaska.gov/in‌dex.cfm?adfg=wildlifenews.view_article&articles_id=356 [https://perma.cc/H73R-6BLP].Show More

For Alaska Natives, this upheaval is nothing short of a crisis. These Native communities have relied on the caribou as a primary source of sustenance, clothing, and cultural significance for countless generations.⁴ 4.Thorsberg et al., supra note 1; see also Caribou Stewardship Based on Indigenous Knowledge, Nat’l Park Serv. (Nov. 24, 2020), https://www.nps.gov/articles/000/ikcaribouste‌wardship.htm#:~:text=The%20I%C3%B1upiat%20have%20relied%20on,hunt%20through%20federal%20subsistence%20management [https://perma.cc/UZ7Z-ZSLM]; Hannah Atkinson, Mobilizing Indigenous Knowledge Through the Caribou Hunter Success Working Group, 9 Land, Oct. 31, 2020, at 1, 2, https://www.mdpi.com/2073-445X/9/11/423 [https://pe‌rma.cc/KY4P-USS7] (“For the Iñupiat of northwest Alaska, caribou is a cultural keystone species. That is, the [Western Arctic Caribou Herd] ‘play a unique role in shaping and characterizing the identity of the people who rely on them [and] that become embedded in a people’s cultural traditions and narratives, their ceremonies, dances, songs, and discourse.’” (footnotes omitted) (quoting Ann Garibaldi & Nancy Turner, Cultural Keystone Species: Implications for Ecological Conservation and Restoration, 9 Ecology & Soc’y, no. 3, 2004, at 1, 1, https://www.ecologyandsociety.org/vol9/iss3/art1/print.pdf [https://perma.cc/3ZLT-ZC‌RQ])).Show More Subsistence hunters, who used to be able to rely on caribou for survival, now have to travel as many as 200 miles to find a herd, and one hunter reported not seeing caribou for years.⁵ 5.W. Arctic Caribou Herd Working Grp., Working Group Proposes Large Reduction in Caribou Harvest, Caribou Trails, Summer 2023, at 1, 1, https://www.adfg.alaska.gov/static/ho‌me/library/pdfs/wildlife/caribou_trails/caribou_trails_2023.pdf [https://perma.cc/467Q-HZ‌6M].Show More The caribou, once so abundant and dependable, have become less predictable, and Alaska’s Native communities who depend on them are left in uncertainty.⁶ 6.Thorsberg et al., supra note 1.Show More The very essence of their identity, intertwined with the land and the caribou, faces an existential challenge. This harrowing story is but one example of myriad instances across “Indian country”⁷ 7.18 U.S.C. § 1151 (“Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). This term originated in the context of the elimination of Natives via war. Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States 131–32 (Tenth-Anniversary ed. 2022).Show More in which anthropogenic climate change is profoundly affecting species’ traditional habitats. Climate-driven species shifts affect both the communities whose lands species previously inhabited and the communities onto whose lands such species have moved (or are attempting to move).

Anthropogenic climate change has induced, and will continue to induce, substantial changes to virtually all ecosystems around the globe. The distributions of plant and animal species are shifting faster than they did historically.⁸ 8.See generally I-Ching Chen, Jane K. Hill, Ralf Ohlemüller, David B. Roy & Chris D. Thomas, Rapid Range Shifts of Species Associated with High Levels of Climate Warming, 333 Science 1024 (2011) (demonstrating that species range shifts are occurring at an accelerated rate associated with high levels of climate warming).Show More As demonstrated by the story of caribou in Alaska, these stressors are fundamentally changing ecosystems, creating new communities, and raising new challenges for management such as how to deal with “new natives” displacing or otherwise harming “old natives.”⁹ 9.Alejandro E. Camacho & Jason S. McLachlan, Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change, 3 Frontiers in Climate, Nov. 22, 2021, at 1, 4, https://www.frontiersin.org/journals/climate/articles/10.3389/fclim.20‌21.735608/full [https://perma.cc/WXD9-539F] (“In the novel ecological communities created when ‘new natives’ mix with ‘old natives,’ the difficulty of establishing [lists of prohibited invasive species] will be compounded by ambiguity about the status of ‘new natives’ combined with the difficulty of assessing the acceptable impact of ‘new natives’ in the context of novel ecological communities.”).Show More Though climate change is causing stress to and reshaping virtually every feature of human and nonhuman systems in every community, this Article focuses on the long-overlooked but massive effects of climate change on biotic communities—in particular, those located on tribal lands, species or landscapes of cultural or spiritual significance to Native peoples, and/or nonhuman biota potentially subject to tribal governance in the foreseeable future.

As one of the Authors has written extensively about elsewhere, the substantial ecological changes wrought by climate change—and the uncertainty that accompanies these stressors—likely necessitate a rethinking of the substantive goals, procedural mechanisms, and structural institutions of conservation governance worldwide.¹⁰ 10.Alejandro E. Camacho,De- and Re-Constructing Public Governance for Biodiversity Conservation, 73 Vand. L. Rev. 1585, 1589 (2020) [hereinafter Camacho, De- and Re-Constructing]; Alejandro E. Camacho, In the Anthropocene: Adaptive Law, Ecological Health, and Biotechnologies,15 Law, Innovation & Tech. 280, 299–300(2023) [hereinafter Camacho, In the Anthropocene].Show More Substantively, climate change illuminates the tensions between the various conventional objectives of conservation instantiated throughout natural resources law.¹¹ 11.See Camacho, In the Anthropocene, supra note 10, at 286, 298–300 (detailing traditional goals of conservation typical in natural resource law and their pitfalls in a changing climate).Show More Procedurally, climate change also raises fundamental questions about how to effectively cultivate participatory decision-making processes in ways that manage ecological and regulatory uncertainty.¹² 12.Camacho, De- and Re-Constructing, supra note 10, at 1613 (“The standard public processes used for implementing public biodiversity management and for regulating private activity have not been well structured to promote learning and manage the substantial uncertainties and evolving character of ecological resources.”).Show More Finally, climate change exacerbates existing cross-jurisdictional challenges—for example, transboundary cost externalization, regulatory commons risks, and conflicts between different adopted management strategies.¹³ 13.See id. at 1623–24; see also Camacho, In the Anthropocene, supra note 10, at 303 (arguing that current legal frameworks in Western jurisdictions are not designed to manage complex, transboundary issues like climate change); Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 200 (2019) (describing increased cross-jurisdictional challenges raised by climate change, such as interjurisdictional spillovers and conflicts).Show More

As detailed in this Article, tribal sovereignty, tribal lands, and Indigenous cultures¹⁴ 14.A note about the terminology used in this Article. We use the term “tribe” or “tribal” to refer to the 574 federally recognized tribes located within the exterior boundaries of the United States. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). We acknowledge that there are numerous Indigenous groups within the United States that have not been federally recognized for a wide variety of historical and political reasons (e.g., Native Hawaiians). Cohen’s Handbook of Federal Indian Law §§ 3.02, 4.07[4][a], [c] (Nell Jessup Newton et al. eds., 2005) (discussing factors contributing to federal recognition of tribes generally and speaking to the situation of Native Hawaiians specifically). Because this Article focuses on federal law and the federal government’s relationship with tribes, however, we will focus our analysis on federally recognized tribes. When we wish to be more inclusive than federally recognized tribes, we will use the term “Indigenous.”Show More raise these issues in distinctive and insightful ways. Building on issues and paradoxes we have written about more broadly elsewhere, this Article delves into the intersection of tribes and climate change, with a special emphasis on ecological adaptation. Tribal lands and governance amplify certain challenges that are likely to be experienced elsewhere, in part due to the distinctive vulnerabilities¹⁵ 15.We do not use the term “vulnerabilities” to suggest that tribes are victims, or somehow lesser than other communities impacted by climate change. Rather, we use this term to highlight historical and legal differences that combine to make tribal communities often uniquely vulnerable to the impacts of climate change.Show More of tribal communities.¹⁶ 16.See infra Subsection I.B.1.Show More There is an indisputable and

well-documented history of the taking of vast expanses of indigenous lands with abundant resources, along with active suppression of indigenous peoples’ culture and political institutions, entrenched patterns of discrimination against them and outright brutality, all of which figured in the history of the settlement of the country and the building of its economy.¹⁷ 17.S. James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Indigenous Peoples in the United States of America, 32 Ariz. J. Int’l & Compar. L. 51, 61 (2015).Show More

These “conditions of disadvantage persist with the continuing effects of a long history of wrongs and past, misguided policies.”¹⁸ 18.Id. at 59.Show More The brutal treatment of Indigenous peoples by colonial powers¹⁹ 19.See, e.g., Immigration & Relocation in U.S. History: Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american/ [https://perma.cc/K‌CK7-QG4L] (last visited Sept. 6, 2024) (explaining that European settlement in North America triggered “disease, starvation, and bloodshed”).Show More has resulted in the deepened vulnerability²⁰ 20.For a discussion of the use of the word “vulnerability,” see Hans-Martin Füssel, Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research, 17 Glob. Env’t Change 155, 157–58 (2007) (presenting a framework for understanding the concept of vulnerability through the lens of four different factors: physical, economic, social, and environmental); see also Karen O’Brien, Siri Eriksen, Lynn P. Nygaard & Ane Schjolden, Why Different Interpretations of Vulnerability Matter in Climate Change Discourses, 7 Climate Pol’y 73, 74 (2007) (attempting to organize the varying scholarly definitions of “vulnerability” into one “common framework”).Show More of the approximately 56.2 million acres of land now held in trust by the federal government for tribes.²¹ 21.What Is a Federal Indian Reservation?, U.S. Dep’t of the Interior: Bureau of Indian Affs. (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation [https://‌perma.cc/TUY7-47Y8].Show More In terms of climate change, the cumulative impact of this historic mistreatment has resulted in many tribal communities being placed on less desirable land and, as a result, facing poor economic conditions—factors which lessen tribes’ ability to effectively combat the negative impacts of climate change.²² 22.See Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science, Oct. 29, 2021, at 1, 8, https://www.scien‌ce.org/doi/epdf/10.1126/science.abe4943.Show More

There are legal and cultural differences that affect the magnitude of this vulnerability. Native cultures and traditions are often tied to the environment and land in a manner that differs from that of the dominant society.²³ 23.We would like to avoid traditional stereotypes of American Indians as “Noble Savages” or “Bloodthirsty Savages.” See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 Vt. L. Rev. 225, 270 (1996) (“The problems of cross-cultural interpretation and the attempt to define ‘traditional’ indigenous beliefs raise a common issue: the tendency of non-Indians to glorify Native Americans as existing in ‘perfect harmony’ with nature (the ‘Noble Savage’ resurrected) or, on the other hand, denounce them as being as rapacious to the environment as Europeans (the ‘Bloodthirsty Savage’ resurrected).”).Show More While it is without doubt that each tribal nation has a distinctive relationship with its particular land and environment, it is also true that the common spiritual, medicinal, and cultural connections that tribal communities have with their land differs in kind from the relationship other communities in the United States have with their land.²⁴ 24.Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. Rev. 246, 250 (1989); see also Nat’l Cong. of Am. Indians, Resolution EWS-06-004: Supporting a National Mandatory Program to Reduce Climate Change Pollution and Promote Renewable Energy, at 2 (2006 Winter Session), https://archive.ncai.org/attachments/Resolution_KSlvpc‌MnfSafhsDsxFnQcTDKMclEpNfvEPQFCsLlhonOXZrOOXu_EWS-06-004.pdf [https://per‌ma.cc/89XA-Z2K3] (“[C]limate-related changes to the weather, food sources, and local landscapes undermine the social identity and cultural survival of American Indians and Alaska Natives . . . .”).Show More Many tribal communities “have a deep relationship with ancestral homelands for sustenance, religious communion and comfort, and to maintain the strength of personal and interfamilial identities. Through language, songs, and ceremonies, tribal people continue to honor sacred springs, ancestral burial places, and other places where ancestral communities remain alive.”²⁵ 25.Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement,32 Harv. Env’t L. Rev. 373, 381 (2008).Show More As a result, for many (but not all) tribal and Indigenous people, culture and spirituality are connected to specific lands. Such connections can provide wisdom about adaptive capacity, but they also can hinder the benefits or even availability of certain adaptive strategies (e.g., making it especially traumatizing to relocate or to be unable to relocate in the face of climate change).

The distinctive legal connections tribes have to specific lands, for instance, restrict the capacity for tribes to accommodate climate change through movement. Many tribes have treaty agreements with the federal government, and the rights emerging from these treaties (such as hunting and fishing rights) are usually tied to a tribe’s traditional homelands.²⁶ 26.Cohen’s Handbook of Federal Indian Law, supra note 14, § 4.05[1], at 276, § 18.02, at 1122–24.Show More In fact, the majority of federal Indian law is connected to the legally defined “status” of land, defined as “Indian country.”²⁷ 27.See supra note 7.Show More The fact that much of Indian law and treaty rights are connected to specific parcels of land deepens tribes’ vulnerability to climate change, as a tribe may not easily leave its tribal territory and continue to enjoy the same legal rights elsewhere.

A focus on tribal ecosystem governance in light of climate change is also invaluable given tribes’ distinctive role in advancing climate change adaptation and resource conservation. First, there are approximately 56.2 million acres of land held in trust by the federal government for the benefit of tribes and individual Indians.²⁸ 28.What Is a Federal Indian Reservation?, supra note 21.Show More Many areas falling under tribal control can be used for conservation purposes,²⁹ 29.See Background: Sharing Information & Techniques Nationwide, Native Am. Fish & Wildlife Soc’y, https://www.nafws.org/about/background/ [https://perma.cc/HEJ2-CMPV] (last visited Sept. 6, 2024).Show More with more Indigenous-managed lands being ecologically intact and serving as a refuge for threatened species.³⁰ 30.Cf. Stephen T. Garnett et al., A Spatial Overview of the Global Importance of Indigenous Lands for Conservation, 1 Nature Sustainability 369, 370 (2018) (describing the global importance and value of Indigenous-managed lands in conservation goals); Christopher J. O’Bryan et al., The Importance of Indigenous Peoples’ Lands for the Conservation of Terrestrial Mammals, 35 Conservation Biology 1002, 1006 (2021) (highlighting the importance of Indigenous lands for the conservation of threatened and endangered mammal species globally).Show More Second, because of the sovereign status of these tribes, states and localities have little jurisdictional control over the regulatory activity on these lands.³¹ 31.California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (explaining that states generally do not have the authority to enforce their laws on tribes unless Congress grants them the power). See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that the laws of Georgia generally did not apply to Cherokee territory within the state because of tribal sovereignty and federal preemption).Show More Adaptation planning therefore is vital for ensuring that effective resource conservation is occurring. Third, in line with the experimentalist benefits of a federal system,³² 32.Camacho & Glicksman, supra note 13, at 34.Show More the innovations being developed by tribes in this space may prove valuable to other sovereigns—such as other tribes, states, and localities—as they look to develop their own climate change adaptation policies. Finally, there are likely to be substantial opportunities for interjurisdictional information sharing and learning; federal, state, and municipal jurisdictions are likely to learn from the experience of tribal authorities in climate adaptation and ecosystem management, and vice versa.³³ 33.See generally Morgan Hepler & Elizabeth Ann Kronk Warner, Learning from Tribal Innovations: Lessons in Climate Change Adaptation, 49 Env’t L. Rep. 11130 (2019) (discussing how tribal governments can serve as valuable “laboratories” from which other sovereigns can learn); Elizabeth Ann Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341 (2017) (same); Elizabeth Ann Kronk Warner, Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory, 47 Ariz. St. L.J. 857 (2015) [hereinafter Kronk Warner, Justice Brandeis and Indian Country] (same); Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. Colo. L. Rev. 789 (2015) [hereinafter Kronk Warner, Tribes as Innovative Environmental “Laboratories”] (same).Show More

Accordingly, a careful and thorough accounting of the distinctive governance challenges raised on tribal lands by climate change is long overdue. Unfortunately, existing academic literature and federal governmental analyses on, and initiatives for, addressing the potential harms from climate change—both the ecological effects on tribal lands, as well as the challenges raised for effective management of tribal lands—remain limited. The scientific analysis of climate effects on vulnerable species, and biota on tribal lands more generally, lags behind that for other lands. More importantly, existing scholarly literature and government analyses insufficiently explore how climate change is likely to stress the governance goals, processes, and institutions that may influence the management of ecological resources on tribal lands.

This Article seeks to begin to fill these gaps in several important ways. The first objective is to bring awareness of the distinctive challenges and opportunities of climate-related conservation on tribal land to the broader scholarly and policy discussion on climate change adaptation in general and ecological adaptation in particular. The character of tribal lands offers important context for (1) assessing the potentially conflicting substantive conservation goals of ecosystem governance; (2) working through decisional processes about conservation; and (3) managing structural governance problems, including regulatory fragmentation and intergovernmental coordination. Second, this Article makes clear that the federal government could and should do substantially more to support tribal governance in the context of preparing for and managing the effects of climate change, particularly related to promoting biodiversity and ecological health. Finally, this Article illuminates various insights for scholars and policymakers, not only in tribal governments engaging in adaptation planning but also local, state, and federal jurisdictions. In particular, it offers examples of tribal governments that may be engaging in adaptation strategies about which other authorities can learn important lessons.

To accomplish these goals, Part I establishes a foundation upon which to scaffold our arguments by delving into the scant existing literature related to ecological adaptation and climate change in Indian country. Scholars and policymakers have focused on concerns about tribal vulnerabilities and sovereignty, as well as the integration of Indigenous knowledge (“IK”) (i.e., the breadth of Indigenous socioeconomic, cultural, and scientific knowledge) and traditional ecological knowledge (“TEK”) into federal and state processes, but they largely neglect deeper substantive, procedural, and structural governance concerns raised by climate change. Because effective governance is key to adequately addressing the challenges posed by climate change and ecological adaptation, evaluation of tribal governance structures proves incredibly important to any discussion of solutions.

Part II takes a deeper dive into how these different facets of governance are likely to be affected by the impact of climate change on tribal lands. To do so, it relies in part on the first thorough assessment of published and publicly available tribal adaptation plans. First, it considers the conventional strategies and goals of resource conservation, namely laws promoting historical preservation, natural and wilderness preservation, and sustained yield. While some tribal governments face tensions between promoting historical fidelity and managing climate change, others are developing adaptation strategies that are more congruent with promoting biodiversity and long-term ecological health. Additionally, as compared to federal and state resource management laws, tribal governance tends to be less wedded to goals and strategies that rely on “natural” preservation. Finally, many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with ecological adaptation.

In terms of procedural ecosystem governance, this Article emphasizes the need to incorporate adaptability, promote meaningful participation, and better integrate Western science with TEK. We explore, however, how long-established governance frameworks for many tribal governments, and even some tribal adaptation plans, allow for more adaptive and open decision-making. Some adaptation plans also illustrate how TEK can be effectively combined in resource management with conventional Western scientific data generation and analysis.

Finally, this Article considers the structural configuration of authority among the constellation of institutions affecting the governance of tribal ecological lands. Tribes may suffer under prevailing decentralized, fragmented, and uncoordinated conservation governance, yet there nonetheless are diversity, experimentation, expertise, and legitimacy advantages to decentralized governmental structures—especially in the context of climate change adaptation. As such, it makes sense to maintain decentralized authority but to complement it through more robust federal roles in funding and information collection and dissemination, as well as by better promoting intergovernmental coordination that expands on recent federal efforts to make federal-tribal consultation more robust.³⁴ 34.This recommendation assumes that other sovereigns will acknowledge and respect tribal sovereignty.Show More This Article concludes with a forward-looking agenda for scholars and policymakers interested in enhancing the cross-jurisdictional governance of tribal ecological lands.

1.  Christian Thorsberg, Andrea Medeiros, Kristin Reakoff & Brittany Sweeney, Caribou and Communities in a Changing Climate, ArcGIS StoryMaps (Dec. 5, 2023), https://storymaps.arc‌gis.com/stories/158c95ff398440e8b875a791e2bec2f8/ [https://perma.cc/2VA2-GPDJ] (“Caribou (Rangifer tarandus) have roamed the circumpolar north for hundreds of thousands of years. . . . Alaska Native peoples and other subsistence users depend upon this cyclical movement for annual harvests, relying on caribou for food, clothing, cultural practice, and emotional and spiritual health.”). ↑
2.  Id. (“[A]s a warming climate changes their habitat—causing seasons to shift, ice to melt at different times of the year, and unpredictable precipitation—the population of many of Alaska’s caribou herds has declined, affecting not only the species, but humans who have lived with and from them since [time] immemorial.”). ↑
3.  See Elizabeth Manning, Caribou and Climate Change: The Nelchina Caribou Herd, Lichens and Fire, Alaska Fish & Wildlife News (Mar. 2008), https://www.adfg.alaska.gov/in‌dex.cfm?adfg=wildlifenews.view_article&articles_id=356 [https://perma.cc/H73R-6BLP]. ↑
4.  Thorsberg et al., supra note 1; see also Caribou Stewardship Based on Indigenous Knowledge, Nat’l Park Serv. (Nov. 24, 2020), https://www.nps.gov/articles/000/ikcaribouste‌wardship.htm#:~:text=The%20I%C3%B1upiat%20have%20relied%20on,hunt%20through%20federal%20subsistence%20management [https://perma.cc/UZ7Z-ZSLM]; Hannah Atkinson, Mobilizing Indigenous Knowledge Through the Caribou Hunter Success Working Group, 9 Land, Oct. 31, 2020, at 1, 2, https://www.mdpi.com/2073-445X/9/11/423 [https://pe‌rma.cc/KY4P-USS7] (“For the Iñupiat of northwest Alaska, caribou is a cultural keystone species. That is, the [Western Arctic Caribou Herd] ‘play a unique role in shaping and characterizing the identity of the people who rely on them [and] that become embedded in a people’s cultural traditions and narratives, their ceremonies, dances, songs, and discourse.’” (footnotes omitted) (quoting Ann Garibaldi & Nancy Turner, Cultural Keystone Species: Implications for Ecological Conservation and Restoration, 9 Ecology & Soc’y, no. 3, 2004, at 1, 1, https://www.ecologyandsociety.org/vol9/iss3/art1/print.pdf [https://perma.cc/3ZLT-ZC‌RQ])). ↑
5.  W. Arctic Caribou Herd Working Grp., Working Group Proposes Large Reduction in Caribou Harvest, Caribou Trails, Summer 2023, at 1, 1, https://www.adfg.alaska.gov/static/ho‌me/library/pdfs/wildlife/caribou_trails/caribou_trails_2023.pdf [https://perma.cc/467Q-HZ‌6M]. ↑
6.  Thorsberg et al., supra note 1. ↑
7.  18 U.S.C. § 1151 (“Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). This term originated in the context of the elimination of Natives via war. Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States 131–32 (Tenth-Anniversary ed. 2022). ↑
8.  See generally I-Ching Chen, Jane K. Hill, Ralf Ohlemüller, David B. Roy & Chris D. Thomas, Rapid Range Shifts of Species Associated with High Levels of Climate Warming, 333 Science 1024 (2011) (demonstrating that species range shifts are occurring at an accelerated rate associated with high levels of climate warming). ↑
9.  Alejandro E. Camacho & Jason S. McLachlan, Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change, 3 Frontiers in Climate, Nov. 22, 2021, at 1, 4, https://www.frontiersin.org/journals/climate/articles/10.3389/fclim.20‌21.735608/full [https://perma.cc/WXD9-539F] (“In the novel ecological communities created when ‘new natives’ mix with ‘old natives,’ the difficulty of establishing [lists of prohibited invasive species] will be compounded by ambiguity about the status of ‘new natives’ combined with the difficulty of assessing the acceptable impact of ‘new natives’ in the context of novel ecological communities.”). ↑
10. Alejandro E. Camacho, De- and Re-Constructing Public Governance for Biodiversity Conservation, 73 Vand. L. Rev. 1585, 1589 (2020) [hereinafter Camacho, De- and Re-Constructing]; Alejandro E. Camacho, In the Anthropocene: Adaptive Law, Ecological Health, and Biotechnologies, 15 Law, Innovation & Tech. 280, 299–300
    

    (2023) [hereinafter Camacho, In the Anthropocene]. ↑

11.  See Camacho, In the Anthropocene, supra note 10, at 286, 298–300 (detailing traditional goals of conservation typical in natural resource law and their pitfalls in a changing climate). ↑
12.  Camacho, De- and Re-Constructing, supra note 10, at 1613 (“The standard public processes used for implementing public biodiversity management and for regulating private activity have not been well structured to promote learning and manage the substantial uncertainties and evolving character of ecological resources.”). ↑
13.  See id. at 1623–24; see also Camacho, In the Anthropocene, supra note 10, at 303 (arguing that current legal frameworks in Western jurisdictions are not designed to manage complex, transboundary issues like climate change); Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 200 (2019) (describing increased cross-jurisdictional challenges raised by climate change, such as interjurisdictional spillovers and conflicts). ↑
14.  A note about the terminology used in this Article. We use the term “tribe” or “tribal” to refer to the 574 federally recognized tribes located within the exterior boundaries of the United States. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). We acknowledge that there are numerous Indigenous groups within the United States that have not been federally recognized for a wide variety of historical and political reasons (e.g., Native Hawaiians). Cohen’s Handbook of Federal Indian Law §§ 3.02, 4.07[4][a], [c] (Nell Jessup Newton et al. eds., 2005) (discussing factors contributing to federal recognition of tribes generally and speaking to the situation of Native Hawaiians specifically). Because this Article focuses on federal law and the federal government’s relationship with tribes, however, we will focus our analysis on federally recognized tribes. When we wish to be more inclusive than federally recognized tribes, we will use the term “Indigenous.” ↑
15.  We do not use the term “vulnerabilities” to suggest that tribes are victims, or somehow lesser than other communities impacted by climate change. Rather, we use this term to highlight historical and legal differences that combine to make tribal communities often uniquely vulnerable to the impacts of climate change. ↑
16.  See infra Subsection I.B.1. ↑
17.  S. James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Indigenous Peoples in the United States of America, 32 Ariz. J. Int’l & Compar. L. 51, 61 (2015). ↑
18.  Id. at 59. ↑
19.  See, e.g., Immigration & Relocation in U.S. History: Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american/ [https://perma.cc/K‌CK7-QG4L] (last visited Sept. 6, 2024) (explaining that European settlement in North America triggered “disease, starvation, and bloodshed”). ↑
20.  For a discussion of the use of the word “vulnerability,” see Hans-Martin Füssel, Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research, 17 Glob. Env’t Change 155, 157–58 (2007) (presenting a framework for understanding the concept of vulnerability through the lens of four different factors: physical, economic, social, and environmental); see also Karen O’Brien, Siri Eriksen, Lynn P. Nygaard & Ane Schjolden, Why Different Interpretations of Vulnerability Matter in Climate Change Discourses, 7 Climate Pol’y 73, 74 (2007) (attempting to organize the varying scholarly definitions of “vulnerability” into one “common framework”). ↑
21. What Is a Federal Indian Reservation?, U.S. Dep’t of the Interior: Bureau of Indian Affs. (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation [https://‌perma.cc/TUY7-47Y8]. ↑
22.  See Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science, Oct. 29, 2021, at 1, 8, https://www.scien‌ce.org/doi/epdf/10.1126/science.abe4943. ↑
23.  We would like to avoid traditional stereotypes of American Indians as “Noble Savages” or “Bloodthirsty Savages.” See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 Vt. L. Rev
    

    .

    225, 270 (1996) (“The problems of cross-cultural interpretation and the attempt to define ‘traditional’ indigenous beliefs raise a common issue: the tendency of non-Indians to glorify Native Americans as existing in ‘perfect harmony’ with nature (the ‘Noble Savage’ resurrected) or, on the other hand, denounce them as being as rapacious to the environment as Europeans (the ‘Bloodthirsty Savage’ resurrected).”). ↑

24.  Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. Rev
    

    .

    246, 250 (1989); see also Nat’l Cong. of Am. Indians, Resolution EWS-06-004: Supporting a National Mandatory Program to Reduce Climate Change Pollution and Promote Renewable Energy, at 2 (2006 Winter Session), https://archive.ncai.org/attachments/Resolution_KSlvpc‌MnfSafhsDsxFnQcTDKMclEpNfvEPQFCsLlhonOXZrOOXu_EWS-06-004.pdf [https://per‌ma.cc/89XA-Z2K3] (“[C]limate-related changes to the weather, food sources, and local landscapes undermine the social identity and cultural survival of American Indians and Alaska Natives . . . .”). ↑

25.  Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement, 32 Harv. Env’t L. Rev. 373, 381 (2008). ↑
26.  Cohen’s Handbook of Federal Indian Law, supra note 14, § 4.05[1], at 276, § 18.02, at 1122–24. ↑
27.  See supra note 7. ↑
28. What Is a Federal Indian Reservation?, supra note 21. ↑
29.  See Background: Sharing Information & Techniques Nationwide, Native Am. Fish & Wildlife Soc’y, https://www.nafws.org/about/background/ [https://perma.cc/HEJ2-CMPV] (last visited Sept. 6, 2024). ↑
30.  Cf. Stephen T. Garnett et al., A Spatial Overview of the Global Importance of Indigenous Lands for Conservation, 1 Nature Sustainability 369, 370 (2018) (describing the global importance and value of Indigenous-managed lands in conservation goals); Christopher J. O’Bryan et al., The Importance of Indigenous Peoples’ Lands for the Conservation of Terrestrial Mammals, 35 Conservation Biology 1002, 1006 (2021) (highlighting the importance of Indigenous lands for the conservation of threatened and endangered mammal species globally). ↑
31.  California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (explaining that states generally do not have the authority to enforce their laws on tribes unless Congress grants them the power). See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that the laws of Georgia generally did not apply to Cherokee territory within the state because of tribal sovereignty and federal preemption). ↑
32.  Camacho & Glicksman, supra note 13, at 34. ↑
33.  See generally Morgan Hepler & Elizabeth Ann Kronk Warner, Learning from Tribal Innovations: Lessons in Climate Change Adaptation, 49 Env’t L. Rep. 11130 (2019) (discussing how tribal governments can serve as valuable “laboratories” from which other sovereigns can learn); Elizabeth Ann Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341 (2017) (same); Elizabeth Ann Kronk Warner, Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory, 47 Ariz. St. L.J. 857 (2015) [hereinafter Kronk Warner, Justice Brandeis and Indian Country] (same); Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. Colo. L. Rev. 789 (2015) [hereinafter Kronk Warner, Tribes as Innovative Environmental “Laboratories”] (same). ↑

34.  This recommendation assumes that other sovereigns will acknowledge and respect tribal sovereignty. ↑