President Donald Trump’s announcement that the United States would pull out of the Paris Climate Accord was far from surprising. After all, the agreement had never been popular with conservatives, and Trump had campaigned against it last fall. In the wake of the president’s announcement, various groups, including environmental organizations, and the states of New York, Washington, and California have announced that they disapprove of the president’s announcement and intend to continue to support the agreement. Four Native American tribes also announced on Friday that “they will continue to uphold and support the Paris Climate Change Agreement (sic).” Although effective as a statement of support, the announcement demonstrates the limits of tribal authority under the American system.

“As sovereign nations, we stand with the countries around the world to support the Paris Climate Change Agreement and we join with them to protect this precious place we all call home,” said Swinomish Tribal Chairman Brian Cladoosby.

In a press release, the tribes explained that, since the U.S. federal government had failed to address the “the urgent and existential threat” of global climate change, it was “a moral and practical necessity for tribal, state, and local governments, in collaboration with average citizens everywhere, to fill the leadership vacuum.” In the statement, they state that addressing climate change falls under tribal authority.

The statement brought together tribes from far-flung reaches of the country. Standing Rock rose to national prominence during the pipeline protests in North Dakota last year. While the other tribes share Standing Rock’s commitment to environmental protection, they are from Washington and Alaska. The Quinault reservation is on the southwestern corner of Washington’s Olympic peninsula, while the central council of the Tlingit and Haida is located in Juneau, Alaska. The Swinomish are a small (less than 1,000 members) tribe in Washington state.

“For hundreds of years the pollution based economy has degraded our home,” Cladoosby continued. “We can no longer allow a failed system to continue to destroy the planet. The Paris Climate Change Agreement reflects the global consensus that we must act together and we must act now.”

The tribes’ statement was supported by the National Congress of American Indians, the oldest association of Native American tribes.

“We will work to ensure that all parties respect, promote, and consider Indigenous peoples’ rights in all climate change actions, as is required by the Paris Agreement,” said NARF Executive Director John Echohawk, executive director of the Native American Rights Fund, in a statement.

The NCAI stresses that native tribes have an intimate knowledge of their surrounding environments which makes them more sensitive to the effects of climate change.

“Through years of tireless effort, the link between traditional knowledge, sustainable development, and cultural resilience is now reflected in the international conversations that take place around climate change policy,” continued Cladoosby.

In the statement, the tribes called on the United Nations to invite other native tribes to make this important commitment to the health of the planet. Significantly, neither the joint statement, nor the statement from NCAI binds the tribal governments to any specific policy changes. In part this reflects the realities of reservation economies, which, in general, do not involve much heavy industry.

Despite this, tribal groups have argued that despite having a negligible carbon footprint, indigenous people are severely impacted by the effects of climate change because of their close relationship to the land.

“Alaska tribal governments are living with the early but significant effects of climate change,” said Richard Peterson, president of the Central Council of Tlingit and Haida Tribes of Alaska. “Our traditional knowledge learned over millennia within our aboriginal lands leaves us with no doubt that immediate action to reduce the impacts of climate change is our duty as sovereign indigenous governments.”

Peterson said that the tribe would participate in the agreement, but did not elaborate on which parts it intended to uphold. Meanwhile, Fawn Sharp, president of the Quinault Indian Nation, tells InsideSources that a national response will be organized next week at the mid-year conference of the National Congress of
American Indians. (Sharp is also vice president of NCAI.) She did not elaborate on the effect supporting the Accords would have on tribal industry.

The Paris Climate Accords imposed strict emissions requirements on signatories. So far, the tribes have not pledged themselves to similar cuts.

While the statements stress that the tribes are “sovereign nations,” this term does not mean that they have the same legal status as a foreign country, like France. The statement exposes the limits of tribal authority. Like any other private organization, tribes can adopt internal policies to promote values they support. Additionally, they are considered governmental entities under American law with authority somewhere between that of a state and a city. Since the 1830s, relationships between tribes and the United States government have been based on the principle that tribes possess a nationhood status and retain inherent powers of self-government and tribal authority.

At the same time, the United States government acknowledges a federal Indian trust responsibility, which encompasses both moral and legal obligations on the part of the government. It also limits tribal authority by granting certain responsibilities to the federal government. The Bureau of Indian Affairs describes this trust responsibility as “a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages.”

The various federally-recognized Native American tribes have been granted lands under the terms of various treaties. These areas are generally exempt from state jurisdiction and tribes retain control over taxation, the passage and enforcement of civil and criminal law, licensure, zoning, and other elements of self-governance. Although recognized as tribal nations, they are not considered foreign countries, but rather treated like states.

“Limitations on inherent tribal powers of self-government are few,” explains the Bureau of Indian Affairs, “but do include the same limitations applicable to states, e.g., neither tribes nor states have the power to make war, engage in foreign relations, or print and issue currency.”

According to this understanding of treaty rights, under American law, no Native American tribe would be allowed to sign the Paris Climate Accord, which was negotiated as an international treaty, just as no individual state could sign the treaty. Neither tribal authority nor state government extends to negotiations or treaties.

Tribal governments aren’t the only ones whose climate activism may be unconstitutional. Eugene Kontorovich, a professor at the Northwestern University School of Law, writes that the United States Climate Alliance formed by California, New York, and Washington, may be an impermissible interstate compact.

“The alliance faces some potential constitutional challenges and limitations,” writes Kontorovich. “The Interstate Compacts Clause, article I, section 10, clause 3 provides that ‘no state … may enter into any Agreement or Compact with another State, or with a foreign power,’ without the consent of Congress.”

Calling the Interstate Compacts Clause a “a clear textual limit on state power,” he explains that states forming an “alliance” to achieve the same policy ends that otherwise would be accomplished by the United States government via international treaty “is exactly the kind of side deal the Constitution sought to prevent states from cutting.”

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