Litigating for the Homeland: An Indian Treaty Framework to Climate Litigation in the Wake of Juliana

Abstract

Climate change is an increasingly pressing issue on the world stage. The federal government, however, has largely declined to address any problems stemming from the effects of climate change, and litigation attempting to force the federal government to take action, as highlighted by Juliana v. United States, has largely failed. This Note presents the case for a class of plaintiffs more likely to succeed than youth plaintiffs in Juliana—federally recognized Indian tribes. Treaties between the United States and Indian nations are independent substantive sources of law that create enforceable obligations on the federal government. The United States maintains a trust relationship with federal Indian tribes, and that relationship obliges a duty of protection upon the federal government. This Note argues that those obligations may support climate change claims under the theory that the government, by failing to address climate change, has failed its duty of protection under its treaties.