Tribes, Trust and Trump
Tribal rights and environmental protections have been joined at the hip since American expansion west, and today, that connection is at the center of some of the most important fights regarding the future of America’s natural resources.
In his latest scholarly publications for the Harvard Rights and Civil Liberties Law Review and UC Berkeley’s Ecology Law Quarterly, UW Law Professor Robert Anderson examines two issues, implied tribal rights to natural resources and the limits of presidential authority, through a lens that shines a light on what to expect in ensuing court battles.
In many ways, modern environmental protection policies were shaped by American colonialism and early treaties made with Native American tribes dating back to the 18th century.
“When the tribes gave up their lands to the United States so there could be non-Indigenous settlements throughout the country, the expectation of the tribes was that they were going to be adequately supplied with resources to continue ways of life,” said Anderson, the Charles I. Stone Professor of Law and director of the Native American Law Center.
“Some Tribes fought wars – wars that were not successful militarily but lead to over 350 treaties to resolve conflicts – and the expectation was that after the treaties were signed, there would be measures taken to protect the sanctity of tribal resources, health and welfare.”
All of these theories will be tested. Professor Robert Anderson
The agreement of a trust doctrine between sovereign tribes and the U.S. government set the pace for how tribal lands would be handled: The U.S. Government would hold tribal lands in trust on behalf of the tribes and serve as stewards of resources essential or important to the tribes’ ways of life — including those that fell outside the physical reservation boundaries like access to water.
This agreement was not voluntary and presents a legal grey area as to the specifics of what must be done to protect tribal resources, which Anderson discusses in detail in “Indigenous Rights to Water & Environmental Protection.”
“The government for many years has not done a very good job, and while they’re getting better, there’s still a ways to go,” Anderson said. “In regard to natural resources, that’s particularly true because of the implication of these off-reservation resources that are not explicitly named as subject to protection. So, you have to rely on this broader trust doctrine.”
The high-profile battle over the Dakota Access Pipeline was a recent example of the debate over this very issue and a fight the tribes ultimately lost, although the dispute remains in litigation. And in the Pacific Northwest where tribes have lived for centuries off key fishing grounds in the region’s coastal waters, the debate now rages over whether these waters are subject to protection, or if they can be leased to, say, oil and gas companies to tap subterranean oil deposits.
Given this history, are these offshore lands essential to these tribes’ ways of life? President Obama thought so, and during his presidency, he used his executive power established by the Antiquities Act and the Outer Continental Shelf Lands Act (OCSLA) to designate a significant number of offshore areas as national monuments, or as off limits to oil leasing under OCSLA.
Anderson provides a more thorough dive into both pieces of legislation in “Protecting Offshore Areas from Oil and Gas Leasing: Presidential Authority under the Outer Continental Shelf Lands Act and the Antiquities Act.” But in short, a key takeaway is that only Congress, not a president, can revoke a former president’s national monument designations, or OCSLA withdrawals. “Those are one-way mechanisms,” Anderson said.
Today, the boundaries of presidential authority are being directly challenged by the Trump Administration, which reversed Obama’s actions and have put up those offshore areas up for lease for drilling.
Can President Trump legally do this? There is no clear legal precedent, and in areas so rich in oil resources and yet so environmentally sensitive, both sides are highly incentivized to win the fight.
“All of these theories will be tested, and we’ll see what the justices say at the trial level, the appellate level and likely all the way up to Supreme Court,” Anderson said.
This only scratches the surface of just how profoundly the impact of colonialism and its ripple effects throughout history have set up one of the biggest legal fights today. For a deeper dive, read “Indigenous Rights to Water and Environmental Protection” and “Protecting Offshore Areas from Oil and Gas Leasing: Presidential Authority under the Outer Continental Shelf Lands Act and the Antiquities Act.”
To find more scholarly work by Professor Robert Anderson, visit his faculty page.