June 2021 marked the hottest June on record for many cities across the United States. This week, climate attribution scientists linked this North American heatwave to climate change, stating the rarity of the event would be virtually impossible without “human-caused climate change.”

However, for years Indigenous populations across the US have already been bearing the brunt of climate change. A recent NY Times article describes record temperatures and drought in the Southwest dwindling the Navajo Nation’s drinking water supply, a school crumbling in a Yu’pik village on the coast of Alaska due to sea-level rise, and Cherokee heirloom crops unable to grow in the Ozarks. Tribal lands are dying to coastal erosion in the Pacific Northwest, forcing communities to move inland.

Climate change will be the third iteration of displacement inflicted on Indigenous communities by the United States, all of which threaten the enjoyment of the rights of Indigenous Peoples, rights which include ties to identity and cultural integrity.

Although Indigenous People contribute least to emissions, they play one of the most important roles in shaping equitable climate policy. In addition, they have been at the forefront of enacting mitigation and adaptation strategies, such as adopting renewable energy.

Perhaps it's the result of lived experience “first imposed by white settlers and later the United States government — that forced them onto the country’s least desirable lands,” now compounded by continued federal neglect of Native American communities, which are causing infrastructure collapse in a time of climate crisis.

That neglect is on full display for the Quileute Nation in the Pacific northwest, about 100 miles outside of Seattle. More frequent and intense storms as a result of global warming now regularly impact power grids, flood homes and the single road, effectively trapping the community in place.

The village is 10 to 15 feet above sea-level. Because of climate change, storms render waves higher than the average resident. But the village wasn’t always sequestered to this fishing area year-round. That decision was enforced upon them by an 1855 treaty and subsequent executive decree that stripped the tribe of most of its land and confined life to one square mile.

Hence environmental justice must recognize the layers of injustice that nest within the effects of disproportionately imposed climate change for some more than others.

Managed Retreat or Managed Injustice?

“We’re the most disproportionately impacted by climate, but we’re the very least funded.” Ann Marie Chischilly, executive director of the Institute for Tribal Environmental Professionals at Northern Arizona University.

Faced with few options, some residents are looking to move to higher ground, a process being increasingly managed in the climate displacement community as ‘managed retreat’ or ‘planned relocation.’ But federal failure to provide a tax base for the relocation has stymied efforts begun in 2012. Tribal Council chairman Doug Woodruff says, “without a cohesive national and international strategy to address climate change, there is little we can do to combat these impacts.”

An expert in this area, A.R. Siders says managed retreat shouldn’t be solely focused on where we need to move from, rather, it should focus on where we need to avoid, and where and how we need to build in the future. To this, managed retreat must reduce risks in ways that are socially equitable.

Siders says compared to other countries at more adverse risk right now, the US is in a position of strength to respond now because of its privileged wealth, space and resources.

In a new paper, she and geographer Idowu (Jola) Ajibade discuss the social justice implications of managed retreat in several global examples, including in the United States, and in particular, how retreat affects marginalized populations.

Nearby, the Quinault tribe is exposed to increasing storms, resulting in frequent flooding and power outages. After nearly ten years of struggle for federal help, they are now working on their own to retreat from the main town Taholah.

Former president of the Quinault Nation Fawn Sharp says, “there’s no single source of revenue, at a state level or congressionally, to undertake these kinds of projects.”

Federal Emergency Management Agency (FEMA) data reveals the agency is less likely to respond favorably to aid requests from native tribes recovering from disaster, compared to non-Native communities. In this SPOTLIGHT, “Race, Class and Colonialism in a Time of Climate Crisis”, Climate Refugees profiled an earlier New York Times article on the duality of FEMA disaster response, measured against race and socio-economic divides that confirmed seemingly conscious or unconscious racial bias.

As we often remind in our advocacy, climate change may affect us all, but it does not affect us all equally. Clearly demonstrated in this situation by the fact that of the 74 federally recognized tribes, fewer than 50 tribes participate in the National Flood Insurance Program.

According to the New York Times review, besides how cost prohibitive flood insurance is, the disparity lies in part due to federal flood mapping that only covers one-third of federally recognized tribes. Residents on tribal lands also receive less federal help towards disaster resilience. The Times research with an expert uncovered, since 1998, FEMA has granted disaster preparedness funds to 59,303 properties, but only 48 of those were on tribal lands.

Accountability and Policy

In response to the increasing vulnerabilities exposed by climate change, President Biden’s American Jobs Plan has made climate action the keystone by addressing transportation and infrastructural inequities, providing incentive programs for electric vehicles (EVs), focusing on coastal climate resilience, and investing in clean energy, with the ultimate goal of achieving net-zero emissions by 2050. Additionally, the American Tax Plan is being proposed alongside the American Jobs Plan, which specifically targets loopholes and subsidies that have long benefitted the fossil fuel industry.

Although the Biden administration appointed Deb Haaland, the first Indigenous cabinet secretary to run the Interior Department, few policies and dedicated funding have yet been allocated to directly address the risks long faced by Native American communities.

Meanwhile, a recent investigative report into ExxonMobil revealed that the fossil fuel giant has actively lobbied against any climate action, speaking weekly to influential senators, such as Democratic senator Joe Manchin, in an effort to drastically reduce the scope of Biden’s plan to benefit the corporation and their shareholders. In an interview with an undercover reporter, Exxon lobbyist Keith McCoy describes their campaigns to subvert climate change actions. “Did we join some of these ‘shadow groups’ to work against some of the early efforts on climate? Yes.”

The report illustrates the deliberate acts of collusion that have had direct effects. Last week, President Biden conditionally endorsed a scaled-back version of his plan which eliminates hundreds of billions of dollars of proposed support for climate initiatives.

Developments in International Criminal Law

Aptly, two weeks ago, an expert panel of legal scholars published a proposed new legal definition of ecocide, proposing its endorsement by members of the International Criminal Court (ICC), that if endorsed, could effectively pave the way for environmental destruction to be prosecuted on par with war crimes.

Ecocide is defined as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”

The draft legislation requires such acts to meet the threshold of causing damage that is “severe”, “widespread”, or “long term,” leaving open the possibility to prosecute reckless or deliberate acts that cause irreversible damage beyond a geographic area or crosses state boundaries.

Were this new crime added to the Rome Statute definition, the question could be raised that if corporations like Exxon are knowingly contributing to emissions and aggressively trying to subvert climate action and life-saving policy, could these acts be treated as ecocide?

UN Special Procedures

In an unrelated parallel process, on June 21, over 200 Indigenous Groups and Global Civil Society, including Climate Refugees, sent a letter to the United Nations Human Rights Council, urging its member states to establish a new mandate for a Special Rapporteur on human rights and climate change.

The call has been over 10 years in the making, led by Indigenous communities and frontline countries. Since Special Rapporteurs are independent experts appointed for six years by the Human Rights Council to address specific thematic issues, they have a wide berth to carry out a range of activities like country visits, statements, policy guidance and best practices.

These experts can also write amici briefs on behalf of litigants, communicate directly with individuals who may face violations of their rights, and take steps to request actions directly from states. This, of course, is particularly helpful in the context of new developments in advancing ecocide in international criminal law.

As we wrote in a recent advocacy post on the call for a Special Rapporteur, our March report to the Biden administration on examining the impacts of climate change on migration made clear that although there is a clear relationship between climate change and human rights, there has been no clear human rights focus in international climate change work. As such, we recommended the administration support calls for the establishment of a Special Rapporteur on human rights and climate change.

Indigenous Peoples rights are particularly vulnerable to their rights being overlooked or inadequately represented at COP negotiations. For Indigenous People, “climate change can have a genocidal impact due to the loss of land and cultural heritage.” The UN Declaration on the Rights of Indigenous Peoples, in Article 32, safeguards the right to prior participation and free, prior and informed consent on decisions where Indigenous land or rights are concerned, as should be the case in planned relocations of tribal populations.

The appointment of a Special Rapporteur dedicated to examining the interlinkages of climate change and the enjoyment of human rights, and in particular its disproportionate impacts on particular groups or regions, is vitally needed to advance the imbalance in the system that limits solutions, finance and redress.

In northern Arizona, the Navajo Nation, the largest tribe in the United States, has been in a drought since the 1990s. As snow and rainfall levels have dropped, so too have the groundwater aquifers that source the drinking water supply of residents.

The federal government says the groundwater that feeds the Navajo Nation is “rapidly depleting”, and although nearby Gallup and Flagstaff have adequate supply, nearly one-third of the Navajo Nation lives without running water.

“This is really textbook structural racism,” says George McGraw, chief executive officer of the nonprofit DigDeep.

So if managed retreat is the answer, then structural racism, and with it, legacies of environmental racism, must also be part of the managed approach.

Geographer Jola Ajibade warns managed retreat needs to be conducted in an equitable way. For that to happen, she says policymakers must consider the “significant cultural, economic, and racial justice impacts on the communities being uprooted.”

“How do we move people away from places of risk,” she says, “without stripping them of their identity, agency, culture, and indeed, livelihood?”

Like Siders, she says retreat is the measure of resort for the poor. In her home country of Nigeria, new properties are built for the rich along the coast of Lagos, while the poor are being moved away from it. She says, “we’re seeing injustice being reinforced through retreat.”

So as we question what justice looks like for not only the environment, but also the Indigenous populations suffering at the hands of human induced climate change, perhaps the separate works of climate attribution and mechanisms for accountability within international human rights can help pave the way. (NY Times, Yale 360)