INDIGENOUS INTERPRETATIONS: INVOKING THE THIRD INDIAN CANON TO COMBAT CLIMATE CHANGE.

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Date: Apr. 2022
From: Harvard Law Review(Vol. 135, Issue 6)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 12,346 words
Lexile Measure: 2050L

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"As long as the rivers run, as long as the tide flows, and as long as the sun shines, you will have land, fish and game for your frying pans, and timber for your lodges," Washington Territorial Governor Isaac Stevens reassured the signatories of the 1855 Treaty of Point Elliott. (1) The Duwamish, suquamish, snoqualmie, snohomish, Lummi, Nooksack, Skagit, Swinomish, and other allied tribes' delegates took him at his word when formulating the agreement. (2) Yet today, in what is now Washington State, climate change threatens to dry rivers, raise tides, burn timber, and deprive Indigenous communities of ancestral lands and subsistence sources. (3)

Climate conditions disproportionately impact Native nations, especially in coastal regions like the Pacific Northwest. (4) Indigenous peoples are turning to traditional management practices to revive struggling ecosystems. (5) The Swinomish Tribe, sitting on low-lying coastal land it has inhabited for ten thousand years, calls itself the People of the Salmon. (6) But the centerpiece of its culture is in danger; due to warming waters, the salmon season has shrunk from eight months to a few days. (7) To fight the further degradation of the coastal habitat, the Tribe has invested in restoring tidelands and channels, planting trees along streambeds to cool waters, cultivating native plants to manage coastal flooding naturally, and restoring reefs to reduce ocean acidification. (8) Even with these efforts, experts estimate that it could take ninety years for their fisheries to recover. (9) This climatological innovation illustrates Indigenous resilience; (10) however, tribes alone should not bear the burden of these mitigation efforts.

As climate conditions worsen, scholars and tribal leaders have proposed using treaty-based litigation to spur remediation of tribal lands. (11) Some have highlighted how tribes are both adapting to climate change (12) and fighting to maintain treaty rights as climate change forces migration away from treaty homelands. (13) Others have observed that tribes are well positioned to bring these claims because "tribal treaty rights claims may face fewer issues related to redressability, such as manageable standards of judicial review and concerns about the political question doctrine, as compared to other climate change suits." (14) Several have argued the federal government must act proactively to reduce the effects of climate change on Indigenous homelands to fulfill its federal trust obligation as a guardian to tribal interests. (15) And a few have pointed to litigation from tribes in Washington State as illustrating that state and federal governments must affirmatively protect treaty habitats. (16) Despite academic interest in this area, treaty-based litigation to combat the effects of climate change remains relatively untested. (17)

Another strand of scholarship focusing on interpretative theories in American Indian law has identified the growing utility of the Indian canons of construction to treaty-based litigation. (18) The Supreme Court established these canons in the nineteenth century. (19) The purpose of these interpretive rules is to ensure that "[t]he language used in treaties with the Indians should never be construed to their prejudice." (20) While the U.S. Supreme Court has applied...

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Gale Document Number: GALE|A702381251