Public Lands, Conservation, and the Possibility of Justice

On December 28, 2016, President Obama issued a proclamation designating the Bears Ears National Monument pursuant to his authority under the Antiquities Act of 1906, which allows the President to create monuments on federal public lands. Bears Ears, which is located in the heart of Utah’s dramatic red rock country, contains a surfeit of ancient Puebloan cliff-dwellings, petroglyphs, pictographs, and archeological artifacts. The area is also famous for its paleontological finds and its desert biodiversity. Like other national monuments, Bears Ears therefore readily meets the statutory objective of preserving “historic and prehistoric structures, and other objects of historic or scientific interest.” Unlike every other monument since the passage of the Antiquities Act, however, Bears Ears was proposed by a coalition of American Indian Tribes. The Bears Ears Inter-Tribal Coalition, which submitted the proposal to protect Bears Ears, included representatives from the Hopi Tribe, Navajo Nation, Ute Mountain Ute, Uintah and Ouray Ute, and Zuni tribal governments. Historically, the Antiquities Act and other federal conservation laws played very different roles in the lives of Native people. Conservation laws divested Tribes of their lands and cultural heritage in the name of preserving these resources for others. Moreover, federal laws and policies designed to destroy tribal political structures were at their apex during the same period that early conservation policy was formed. Together, and complemented by laws that privatized vast swathes of the federal public domain, conservation law and federal Indian law effected a joint project of Indian elimination. This Article explores that dark side of conservation history, and describes the very different process that led to the Bears Ears designation. It argues that by restoring tribal connections to the landscape, Bears Ears National Monument serves as a partial act of reparations. Today, Bears Ears National Monument is under threat. President Trump reduced the Monument to a small fraction of its size and divided it into two parcels. The Tribes, along with conservation groups, have sued, arguing that the Antiquities Act authorizes the President only to create monuments, not to eliminate or shrink them unilaterally. As that legal battle plays out, the story of Bears Ears remains worth telling. Its saga explores the intertwined histories of the development of racial attitudes and environmental thought, and fills in an important chapter in the larger story of Indian appropriation. The inter-tribal effort to establish Bears Ears will leave its mark on public lands and conservation law, regardless of the ebbs and flows of current legal disputes

Planetarian Identity Formation and the Relocalization of Environmental Law

Local food, local work, local energy production--all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world\u27s global environmental problems. This Article maintains, however, that some forms of localism are actually expressions, appropriate ones, of a planetary environmental consciousness. This Article\u27s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants, as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions of the human relationship with the planet, which in turn provide grist for environmental law and policy design. One overarching conclusion is that environmental laws, even those aimed at solving problems of planetary scale, should include elements that foster localism. The reasons to do so are twofold and strangely complementary. First, in an instrumentalist vein, sustained attitude and behavior changes are most likely to be accomplished through the positive feedbacks between personal and community norms. Second, if we fail to rein in carbon emissions as a global matter, at least some communities will have nurtured the attitudes, behaviors, and patterns of living that might be most adaptive to the resource challenges and scarcities of a climate-changed world. By fostering the planetarian identity, localism therefore has the potential to redeem environmental law, even in the face of its potential failure

Settler Colonialism and Reclamation: Where American Indian Law and Natural Resources Law Meet

Three hours west of Phoenix, Arizona, the Colorado River Indian Tribes (“CRIT”), a federally recognized tribe that includes over 3,700 enrolled members of Mohave, Chemehuevi, Navajo, and Hopi descent, occupies a reservation nearly 300,000 acres in size. The CRIT was one of five tribes to have its water rights confirmed in the landmark case of Arizona v. California, and therefore has senior rights to 719,248 acre-feet of Colorado River water, nearly one-third of Arizona’s allocation. How the CRIT came to be a single federally recognized tribe composed of members from four indigenous peoples located on lands that were a fraction of their aboriginal territory is both a federal Indian law story and a natural resources law story. The stories are two sides of a single coin, which is the currency of settler colonialism in the United States. The object of settler colonial societies was to clear the land of their indigenous populations to allow for nonindigenous settlement. In the U.S. context, American Indian law has often done the work of clearing the land, while natural resources law assures the successful occupation of that land by non-Indians. This Article delves into CRIT’s natural resources history, which serves as a reminder that public land and water law do not start from a blank slate. The distribution of land and water to non-Indians required first that those resources be wrested from Indian control. With that as the starting point, current debates about Indian water rights can be seen in their proper context, as measures of corrective justice that recognize indigenous peoples’ preexisting political, moral, and legal claims, rather than as special rights doled out to select minorities. Understanding tribal water rights this way also liberates them from static and limited notions of use, making them all the more relevant to the contemporary challenges of climate change and resource scarcity