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Trust or Bust: Complications with Tribal Trust Obligations and Environmental Sovereignty

Nadia B. Ahmad

The National Environmental Policy Act (NEPA) and participation rights should mean more, not less, on tribal lands when respect for tribal sovereignty and federal tribal trust responsibilities exists. This Article proposes a rights-based approach to reinvigorate tribal treaty regimes based on a historico-legal analysis of the interconnected right-of-way doctrine and environmental impact statement process for pipeline projects in “Indian Country.” This legal strategy will enrich the democratic approaches to tribal consultation, and respond to environmental justice concerns arising from lax regulations and the subsequent environmental degradation. The aim of this Article is to reframe the responses to tribal environmental challenges on account of deficiencies in NEPA and prior tribal trust claims. It also offers recommendations to overcome those challenges through analyzing the history of right-of-way regulations in Indian Country, the standards for impact statements, and treaty language. Moreover, this Article assesses tribal sovereignty through the lens of energy infrastructure projects on Indian lands, and concludes that updates to the federal right-of-way law chisel away at tribal rights to land, property, and self-determination.[1] Without a thorough reassessment of the essential rights-of-way laws that affect pipeline permitting on tribal lands, tribal environmental sovereignty will be compromised, and tribal land will be more prone to environmental degradation and pollution from increased toxins and hazards associated with oil and gas transport. This Article argues that using existing NEPA procedural remedies,[2] in concert with provisions from the updated rights-of-way regulations in Indian Country, provides project development and litigation outcomes more attenuated to Indian interests.[3]


American Indian tribes face exceptional land use, property, and environmental challenges because of hydrocarbon transport projects on their lands.[4] Due to the tribes’ various geographic locations throughout the United States, and their proximity to existing and future hydrocarbon reserves, pipelines crisscross tribal lands with increased frequency and carrying capacity.[5] A hydrocarbon transport project in a right-of-way corridor creates an economically efficient means of passage for energy resources, but such a project also sullies tribal property, sovereignty, and environmental rights. From a legal perspective, a pipeline poses significant risks to the use and enjoyment of tribal land, and uniquely threatens sacred space.[6]


While concern for pipeline siting is ubiquitous, what is less conspicuous––but equally significant––is the property and environmental rights impact of energy projects on tribal lands and on former tribal lands ceded to the United States.[7] More than 50 million acres of Indian trust lands exist in the United States.[8] Thousands of miles of easements traverse tribal lands for various purposes as crucial fragments of the national infrastructure.[9] Significant swaths of tribal lands lay within the path of major energy infrastructure projects.[10] American Indian communities experience an imbalanced proportion of environmental degradation on account of the mineral development in North America.[11]


Without improved tribal consultations and more robust treaty claims, the updated rights-of-way regulations in Indian Country will lead to a steady and blatant encroachment of tribal lands. Moreover, this will also affect all future development of energy easements, including lands of the White Earth Band of Ojibwe in northwestern Minnesota, Navajo Nation in Texas and New Mexico, and the Seminole Tribe of Florida’s Big Cypress Reservation.[12] Under these regulations, native environmental protection concerns are devalued and underappreciated, particularly in negotiating and/or contesting pipeline siting and permitting.[13] Based on the unique nature of the pipeline industry and asset specificity, long distance pipelines create distinct financing and contracting matters.[14] “[A] century of dealing with oil and gas pipelines shows just how hard it is to keep them from being used as John D. Rockefeller first discovered they could be—as levers to frustrate competition in commodity markets and as profitable tollgates lying athwart commodity trade routes.”[15] The economics of the pipeline industry also make the business climate adverse to environmental and tribal land concerns.


Part I provides the jurisdictional overlay of rights and duties involved with projects on tribal lands. Part II examines the legal nuances in the development of right-of-way regulations in what constitutes Indian lands. Parts II.C and II.D posit that NEPA sufficiently allows for stronger claims against pipeline projects. Analyzing tribal challenges to pipelines in the cases of Sisseton-Wahpeton Oyate v. U.S. Department of State[16] and TransCanada Pipeline and White Earth Nation v. U.S. Department of State[17] showcases distinct methodological opportunities to take advantage of legal remedies implicit in NEPA.[18] To counter threats to tribal environmental sovereignty by an ever-expanding consortium of oil and gas operations, Part III offers an ancillary proposal of normative guidelines. These guidelines heighten transparency, incorporate a richer understanding of the NEPA process in energy permitting, and enhance measures for a better participatory process to avoid legal showdowns, such as the Dakota Access Pipeline Project.

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[1] Rights-of-Way on Indian Lands, 80 Fed. Reg. 79,258 (Dec. 21, 2015) (to be codified at 25 C.F.R. pt. 169) (promulgating a rule “streamlin[ing] the process for obtaining Bureau of Indian Affairs (BIA) grants of rights-of-way on Indian land and BIA land, while supporting tribal self-determination and self-governance”). See also 25 C.F.R. pt. 169 (2016) (prescribing the procedures, terms, and conditions under which rights-of-way over tribal lands may be granted).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331–4370 (2012). The Revised Draft Guidance for Greenhouse Emissions and Climate Change Impacts of the White House Council on Environmental Quality (CEQ) provides additional support for environmental protection. The legacy of previous attempts at climate change adaptation measures is diminishing with a new White House administration. Yet, existing federal regulations and environmental protection measures—along with private-public partnerships—will minimize the assault on environmental rights by federal leadership that is attuned to the interests of the fossil fuel industry. See White House Council on Environmental Quality, Revised Draft Guidance for Greenhouse Emissions and Climate Change Impacts 1–2 (Dec. 18, 2014), https://obamawhitehouse.archives.gov/sites/default/files/docs/nepa_revised_draft_ghg_guidance.pdf.

[3] Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169) (promulgating a rule “[s]treamlining the process for obtaining a right-of-way on Indian land”). The total climate change litigation in the United States exceeds that of the rest of the world combined. By 2013, more than 420 climate cases had been resolved in the United States versus 173 for the rest of the world. Michael B. Gerrard, Scale and Focus of Climate Litigation Outside the U.S., N.Y. Law Journal (Mar. 12, 2015), http://web.law.columbia.edu/sites/default/files/microsites/climate-change/nyljscaleandfocusofclimatelitigationoutsideofunitedstates_0.pdf.

[4] See Bill McKibben, Why Dakota Is the New Keystone, N.Y. Times (Oct. 28, 2016), https://www.nytimes.com/2016/10/29/opinion/why-dakota-is-the-new-keystone.html (discussing Native Americans conducting peaceful protests against an oil pipeline seeking to address clean water, environmental justice, and climate issues).

[5] See Jack Healy, North Dakota Oil Pipeline Battle: Whose Fighting and Why?, N.Y. Times (Dec. 2, 2016), https://www.nytimes.com/2016/11/02/us/north-dakota-oil-pipeline-battle-whos-fighting-and-why.html (stating that there are 2.5 million miles of pipelines crossing the United States).

[6] See id. (discussing the Standing Rock Sioux Tribe’s opposition to the Dakota access pipeline for crossing over sacred tribal land).

[7] Andrew S. Montgomery, Tribal Sovereignty and Congressional Dominion: Rights-of-Way for Gas Pipelines on Indian Reservations, 38 Stan. L. Rev. 195, 199 (1985).

[8] C.E. Willoughby, Native American Sovereignty Takes a Back Seat to the “Pig in the Parlor:” The Redefining of Tribal Sovereignty in Traditional Property Law Terms, 19 S. Ill. L.J. 593, 601 (1995).

[9] Todd Miller, Comment, Easements on Tribal Sovereignty, 26 Am. Indian L. Rev. 105, 105 (2001). Rights-of-way easements encompass “highways, railroads, electric transmission lines, oil and gas pipelines, and various communication facilities.” Id.

[10] See Daniel W. Hester, Protection of Sacred Sites and Cultural Resources: An Obstacle
to Development in Indian Country?
, 23A Rocky Mtn. Min. L. Inst. 11 (1989) (noting that development of the Powder River region would impact the Norther Cheyenne Tribe).

[11] James M. Grijalva, Control and Accountability: The Twin Dimensions of Tribal Sovereignty Necessary to Achieve Environmental Justice for Native America, in Tribes, Land, and the Environment 30 (Sarah Krakoff & Ezra Rosser eds., 2012).

[12] See Miller, supra note 9, at 130 (identifying the need for more energy easements across tribal land to satisfy the demand for more transmission capacity).

[13] See Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169) (noting the absence of environmental considerations, despite the streamlined process). See also 25 C.F.R. § 169.3 (2016) (giving the Secretary authority to grant right-of-way permits).

[14] Jeff D. Makholm, The Political Economy of Pipelines: A Century of Comparative Institutional Development 175 (2012).

[15] Id. at 176.

[16] Sisseton-Wahpeton Oyate v. U.S. Dep’t of State, 659 F. Supp. 2d 1071, 1079 (D.S.D. 2009).

[17] White Earth Nation v. Kerry, No. 14-4726 (MJD/LIB), 2015 WL 8483278, at *1 (D. Minn. Dec. 9, 2015).

[18] The rights-of-way revisions include: (1) “Eliminating the need to obtain BIA consent for surveying in preparation for applying for a right-of-way”; (2) “Establishing timelines for BIA review of rights-of-way requests”; “Clarifying processes for BIA review of right-of-way documents”; (4) “[A]llowing BIA disapproval only where there is a stated compelling reason”; (5) “[P]roviding greater deference to Tribes on decisions affecting lands”; (6) Clarifying the authority by which BIA approves rights-of-way; and (7) “[E]liminating outdated requirements that apply to specific different types of rights-of-way.” Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169).

Same-Sex Marriage, Religious Accomodation, and the Race Analogy

Shannon Gilreath & Arley Ward

Can a state government allow its officials to opt-out of issuing marriage licenses based on religious objections to same-sex marriage? Similarly, can a state create special religion-based exceptions to anti-discrimination laws? This article examines these questions by comparing traditional objections to same-sex marriage and racial integration, and by delving into how each category is treated by anti-discrimination law. We examine the ultimate refusal to legally accommodate analogous religiously-motivated objections to racial integration. We conclude that any such exemptions would be unconstitutional violations of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Understanding the history of religion-based arguments justifying discrimination is crucial to this analysis. Proponents of far-reaching religious exemptions from otherwise generally applicable anti-discrimination laws too often portray the advent of same-sex marriage as unprecedented and terrifyingly unique. So terrifying and unique, it is claimed, that the law must recognize unprecedented new rights for individuals refusing to accept the evolution of the law because of their religious beliefs. Understanding the striking similarities between arguments justifying anti-gay discrimination and anti-black discrimination for religious reasons is crucial to exposing this fallacy.

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Institutionalizing a Fully Realized Right to Food: Progress, Limitations, and Lessons Learned from Emerging Alternative Policy Models

Nadia Lambek and Priscilla Claeys 

Twenty years ago, in 1996, world leaders, activists, and food producers met in Rome for the World Food Summit. One of the many outcomes of this meeting was a clear direction to the United Nations human rights bodies that States and stakeholders were interested in how the right to food could be operationalized at the national level. Over the past two decades, the right to food has gone through a period of intense normative elaboration, from a little theorized right to a largely fully elaborated human rights framework with corresponding State obligations and interpretations applying the right to food to a variety of contexts. Today there is a greater understanding of the concrete implications of the right to food as a legal doctrine for a range of state, international, and private actors, as well as a greater understanding of the importance of adopting a holistic approach to food insecurity.

The right to food has now entered a new era, with advocates focused on its promotion, adoption, and implementation, particularly at the national level. As a result of these efforts, the visibility of the right to food has increased remarkably over the last decade, particularly through the work of a number of non-governmental organizations (NGOs), civil society organizations, and the United Nations Special Rapporteurs on the right to food. States are increasingly adopting the right to food framework—or more accurately some elements of the framework—as a policy guide or as a legal norm through a variety of laws, constitutional amendments, policies, and programs. The right to food as a guiding framework is also increasingly discussed in international fora, notably at the United Nations Committee on World Food Security (CFS).

This Article focuses on the right to food in the context of national implementation—and not as an analytical tool for assessing the ails of the food system or as a uniting principle between different constituents. It argues that, despite the advancements noted above, little progress has been made overall at legal, policy, and institutional levels in effectively creating an environment in which the right to food can be fully realized in national contexts. Indeed, the adopted legal and policy frameworks have largely focused on the obligations of states to fulfill the right to food, leaving unaddressed the obligations to respect and protect the right to food. This has resulted in a failure to fully endorse the right to food in such a way that it would lead to the structural change needed to improve the realization of the right and to decrease food insecurity for individuals and communities.

Many factors can be credited with limiting the success of the right to food as a legal tool. These include a lack of political will among States and a reluctance to recognize economic and social rights; increased corporate capture of food governance fora and of the food supply chain more broadly; a lack of political constituency for the right to food, with implementation efforts largely stemming from a handful of NGOs and the Food and Agriculture Organization of the United Nations (FAO) right to food team; and weak implementation mechanisms, which often fail to reflect the core State obligations imposed by the right to food.

While these obstacles and limitations are well documented in the literature, we argue in this Article that some of the most relevant and interesting developments allowing us to reflect on the challenges facing the right to food have taken place not within the right to food field, but outside and in parallel. Indeed, the last decade has seen a rise in new and alternative models for transforming the food system, such as alternative food networks, local food policy councils, and food sovereignty. These are often implemented in response to the challenges and the limited progress achieved with the right to food. These alternatives—often defended by local and transnational peasant organizations and food movements more generally—have succeeded not only in creating new narratives about the structural changes needed in our food system, but also in establishing new rights, institutions, and governing practices. Our objective in this Article is to document these developments and the lessons we believe they bear for right to food advocates and practitioners. These alternatives provide an important lens through which to view the perceived limits of the right to food as a legal tool. Further, taking them seriously invites us to expand our understanding of the right to food in at least two ways: (1) towards a more inclusive participation of citizens in the governance of food and agriculture; and (2) towards a transition to more localized food systems.

In Part I of this paper, we provide a brief overview of the right to food’s legal framework. In Part II, we review some of the key developments in implementing the right to food over the last two decades—both with respect to national implementation of legislation, as well as through policies. We show that progress has been made when it comes to fulfilling the right to food, but that much needs to be done to respect and protect the right. We also highlight a number of accountability challenges that need to be addressed. In Part III, we assess alternative models, grounded in the alternative paradigm of food sovereignty, that have emerged from the bottom up at the local, national, and regional levels over the past two decades. We discuss food sovereignty laws and policies, as well as alternative food networks and food policy councils. We then move to the international level, where we explore efforts at institutionalizing space for civil society in food system governance at the global level—specifically at the CFS. We also discuss the current elaboration of the Declaration on the Rights of Peasants and Other People Working in Rural Areas at the United Nations Human Rights Council as an articulation of new human rights norms to reflect the experience and claims of peasants and other people working in rural areas. Drawing from the alternative models, we conclude with a discussion of how the right to food could better address the twin crises of accountability and participation.

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Keynote Address

Marcos Orellana 

Thank you Stephanie for that kind welcome. It is a real honor and pleasure for me to be here today with all of you, breathing the fresh air of a cool morning in Vermont. I thought I should start this keynote presentation by suggesting that for a minute we look at ourselves from the perspective of how future generations will see us. I will submit to you there is a disconnect between how we see ourselves and how we will be seen (and judged) by future generations.

If we take a moment to look back and think about the practice of slavery and humans as property, or perhaps look at the dark ages and secret trials. We think about these as barbaric practices, but they did not happen that long of a time ago. When we see ourselves today, I think most of us will have an image of “well, we’re certainly somewhat sophisticated,” and as Dean Mihaly put it: “educated.” Many of us wear a tie to appear respectful. But how will we be seen in the future? What are the kinds of issues that we are accepting and practicing and causing in the world today?

We are witnesses to unprecedented levels of inequality, destitution, and environmental deterioration. Much has been said about climate change and the apocalyptic future it will bring about; for many that dire future is already present. Much has been written about the global public health crisis caused by exposure to chemicals and hazardous wastes, and about the fact that we as humanity are causing, as it is called, the sixth wave of biodiversity loss involving an unprecedented loss of species. For many of these species there is no tomorrow, there is no later, there is no coming back. So we as humanity are responsible for that extinction. How will that fact be seen by future generations? Do we still look that respectable? Is there a disconnect there? 

The magnitude of the forces at play today is unprecedented, and so for that same reason, our response to those forces needs to be unprecedented. That is where human rights and the environment come into play: as new tools to address contemporary realities.

This morning I expect to lay out the general elements and boundaries of the human rights and environment field, so that the panels can delve deeper into specific issues. And so by way of roadmap, I will start laying out the evolution of human rights and the environment since its inception. That background will help determine what is the current state of play. Second, I will talk about lessons we have learned. Have we learned anything in the last four or five decades? Finally, I will address some of the challenging debates over the global recognition of the right to a healthy environment and conclude.

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Scrutinizing Strict Scrutiny

Roy G. Spece, Jr., & David Yokum 

Standards of review dominate personal liberties practice, and we must take them seriously if we heed calls to take (constitutional) lawyering seriously. Standards are poorly articulated and undertheorized. They must be properly fashioned by exploring and reconciling the logic and purpose of each of their components. We do this with strict scrutiny both to energize an important standard of review and model a proper approach. Our analysis is primarily within the context of higher education affirmative action cases because they typify the ambiguity of strict scrutiny; one such case—Fisher v. University of Texas at Austin—was set to be argued on December 9, 2015.

We derive a preferred articulation of strict scrutiny with six achievable but rights-protective requirements. Strict scrutiny is especially energized by separating its ends question about compellingness from its means question about interest advancement. Then state interests are compelling only if of a special nature. This is analogous to requiring fundamental rights to have special attributes irrespective of any intrusion. 

The preferred version of strict scrutiny is applied to Fisher, which involves a university program that considers race as one diversity factor combined with a top ten percent law. Our contrarian conclusion is that the law is unconstitutional, but that the Court should save the University program by severing it from the law. It is contrarian because most authorities—whether invoking an anti-subjugation, anti-classification, or anti-balkanization perspective—accept supposedly racially neutral top ten percent laws. We invoke a nuanced conception of anti-balkanization applicable in Fisher’s unique circumstances. Our conclusion is also based on a rich conception of academic freedom with two complementary aspects that place it at the foundation of freedom of speech. These aspects combine to protect universities from external impositions such as the Texas law, allowing them to accommodate diversity and demonstrated academic capacity.

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Protection Against the Economic Fears of Old Age: Six Micro and Macro Steps for Bridging the Gap in Retirement Security Between Blacks and Whites

Philip C. Aka, Aref A. Hervani, & Elizabeth Arnott-Hill 

Retirement security is financial readiness. It exists when a worker, especially one on the cusp of retirement, subjectively believes that he or she has enough resources to guarantee a standard of living similar to that before retirement—and when in fact, objectively, a full complement of savings in Social Security, employer-sponsored benefits, and personal assets exists to guarantee that pre-retirement standard of living. The economic difficulties of the past decade, signified by the Great Recession of 2007 to 2009 and an accompanying slow recovery, have combined to synergistically inflict a negative effect on many financial investment resources, including Black retirement security. To be sure, the recession did not create the situation that some commentators poignantly liken to a “crisis.” For example, “[f]rom 1979 to 2006, African-American private sector workers saw their overall pension coverage go down” by 8.3%, compared to Whites, who experienced a decline of just 3.7%.  However, the economic hard time and its aftermath have exacerbated the retirement unreadiness of many older Americans, notably including Blacks. 

We argue that in the aftermath of the economic downturn, retirement security for Black people is predicated on micro steps comprised of changes in the tripod of Social Security, employer-sponsored pension plans, and personal assets, implemented in tandem with macro steps in the form of a reduction in disparities between Blacks and Whites in education, healthcare, and housing. These are three critical areas of American national life; without reducing disparities in these areas, the chances for Black retirement security may be bleak for many years to come. In developing our argument, we did three things. First, we highlighted the shape of the retirement security gap between Blacks and Whites in a discussion that integrates the six variables at the focus of this Article. Second, we presented a historical narrative necessary for proper understanding of our research that, among other materials, draws on President Franklin D. Roosevelt’s model of a right to adequate protection from the economic fears of old age, as part of a bill of economic rights meant to complement the original bill of political rights that the United States adopted in 1791. Third and finally, we zeroed in our attention on the six steps for closing the retirement gap between Blacks and Whites at the cynosure of this work. Of those six steps, we devoted extensive space and analysis to personal assets, commensurate with the threat that this benefit source poses for the retirement security regime, which is indicative of the shift in responsibility for retirement readiness to individual workers over many years that predated the economic difficulties of the past decade.

The micro steps are measures that, by their nature, are not focused on Black people as such because they benefit all United States workers, without subscribing to the amorphous notion of a “rising tide lifts all boats.” In contrast, the macro steps focus more directly on Black people and Black seniors. As the ensuing analysis makes clear, the two sets of steps somewhat overlap. Studies on retirement security focus on United States seniors as a whole. But there are equally many studies on minorities, among them Black people. This Article belongs in the latter category, but at the same time departs from those studies in that it is more specifically focused on Blacks, in an integrated approach that assembles under one analytic bundle the key elements of changes and disparity reduction that we identify as critical for Black retirement security in the aftermath of the Great Recession and its accompanying slow recovery. Blacks and Whites are just two of several races in the United States’ multiethnic society. Accordingly, the measurement or comparison to Whites is a mostly heuristic tool meant to facilitate analysis, focusing on the national government. 

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