Robert T. Anderson, Federal Treaty and Trust Obligations, and Ocean Acidification, 6 Wash. J. Envtl. L. & Pol'y 473 (2016), https://digitalcommons.law.uw.edu/faculty-articles/50
Washington Journal of Environmental Law and Policy
Ocean acidification will have profound effects on the entire human population and natural resources that depend in any way upon Earth’s oceans and lakes. In turn, those effects will be even greater, and potentially catastrophic, for indigenous populations who rely on the seas for physical, cultural, and spiritual sustenance. While most research on carbon dioxide absorption from the atmosphere has focused on oceans and the resulting acidification, many believe that acidification levels also will also increase in the Great Lakes. Indian tribes in the Pacific Northwest and the Great Lakes regions share reliance on marine and freshwater resources, and many treaties contain provisions reserving off-reservation access to these resources.
These treaties have consistently been interpreted as the Indians would have understood them, with any ambiguities interpreted in favor of the tribes. While many tribes have fought off incursions on their territories and treaty rights in particular cases, the threats from greenhouse gases and ocean acidification call for even greater efforts due to extensive tribal rights in affected waters and resources. This battle also requires a major effort on the part of the United States government.
This essay describes the nature of Indian treaty rights and the federal-tribal relationship, shows how the United States has sometimes acted to protect Indian treaty rights, and argues that the United States must do more to protect and enhance environmental conditions that are causing ocean acidification. Tribal property rights secured by treaty, and the federal government’s trust responsibility require serious protective action by the United States to stop the increase in ocean and freshwater acidification.
Part II describes the federal-tribal relationship and the parameters of the federal trust responsibility. Part III reviews legal authority supporting federal litigation and administrative actions to protect Indian treaty rights to hunt, fish, and gather and to the habitat upon which those rights depend. Part IV concludes the piece with a normative discussion of why the federal trust responsibility requires the robust use of protective, proactive, and ameliorative efforts outlined by others in this issue. In sum, it will take a broader view of the trust responsibility and more aggressive action by policy makers to force limitations on greenhouse gas emissions and stem the harm from increasing ocean acidification.