Recent Article Summary: Elizabeth Ann Kronk Warner “Looking to the Third Sovereign: Tribal Environmental Ethics as an Alternative Paradigm”

By Zach Berliner

Article Citation: Elizabeth Ann Kronk Warner, Looking to the Third Sovereign: Tribal Environmental Ethics as an Alternative Paradigm, 33 Pace Envtl. L. Rev. 397 (2016).

Summary

In the Spring 2016 edition of the Pace Environmental Law Review, we published an article by Elizabeth Ann Kronk Warner entitled Looking to the Third Sovereign: Tribal Environmental Ethics as an Alternative Paradigm.1 The article makes the case for why the United States’ current “anthropocentric” (human-focused) approach to environmental law is inadequate to address the threats of climate change and environmental degradation. Instead, Warner draws from her unique experience as a judge for two Native American tribunals to advocate for a new ethical paradigm—one based on traditional Native American values which emphasize the intrinsic value of nature and our strong, multi-faceted bond with it. Given their recognition as sovereign entities, Warner believes that Native tribes can serve as “laboratories for legal innovation and environmental ethics”—and change American environmental law for the better.

The article first discusses how “mainstream” American law largely neglects American Indian ethics. For example, lawyers who practice Indian law often must consider that decisions may benefit one tribe to the detriment of another.2 Yet, according to Warner, the American Bar Association’s (“ABA”) Model Rules of Professional Conduct “do not contemplate that a lawyer’s ethical duty flows beyond her client to a larger community, such as Indian country.”3 Moreover, most public school curricula are devoid of contemporary tribal history and culture.4 Many lawyers therefore will not attain or benefit from this knowledge by the time they begin practicing.5

Due to this and other similar instances of tribal ethics falling by the wayside in American law, Warner argues that tribes should implement codes of conduct and other laws which reflect their own communities’ norms.6 Such would make the jobs of lawyers practicing Indian law easier, as their conduct—and (hopefully) legal outcomes—will more closely align with prevailing customs in the tribes they serve. Also, tribes are considered sovereigns under federal law, allowing them to adopt such ethical rules that differ from the norms underlying the ABA Model Rules.7

Using this legal framework as a backdrop, Warner argues that Native tribes are, and can continue to be, “laboratories for legal innovation and environmental ethics” in American law.8 But why exactly is our nation’s legal system in need of such innovation? In Warner’s view, the core issue with the Anglo-American value system is that it distinguishes between and prioritizes “human values” over “environmental values,” rather than recognizing that “both sets of values are intimately connected . . . [to] the complete set of forces which give meaning and life to our world.”9 To address this, Warner believes we should shift toward the land-based, “ecocentric” paradigm found in many American Indian cultures. Specifically, she describes the ethical concepts of “animism” and “deep ecology,” which recognize nature as something of greater intrinsic value than that assigned to it by humans; that all humans, living creatures, and other non-living aspects of the environment are individuals in their own right, interconnected in a web-like scheme.10

Warner concludes by highlighting examples of how Native American tribes have already innovated in environmental ethics as well as how they could further innovate in the future. She mentions how one tribe has implemented agricultural management plans which include traditional farming methods; other tribes have formed intertribal organizations to regulate resources in line with traditional values; some include an obligation to protect the environment in their constitutions.11 Regarding future innovation, Warner notes that tribes may continue to diverge from Anglo-American law and implement their own environmental ethics in areas where tribes have authority under federal law to do so (e.g., via an exemption or other deferential provision).12

Thoughts

In her article, Warner makes a compelling argument for why American environmental ethics must become more ecocentric if we are to meaningfully combat climate change. She is correct in arguing that our ethical paradigm, despite recent waves of environmentalism, is premised on the notion that the natural world is separate and of less value than the human world. We must begin to erode the barrier that we have placed between humans and nature—and realize that one has never truly existed.

This sounds like a monstrous task, and one that the article perhaps does not offer much guidance on how to achieve in practice. However, we can begin to morph our environmental ethics by drawing on the Native knowledge that has been in this country since well before Europeans’ arrival. American Indian tribes’ connection to a greater network of non-human individuals provides a greater impetus for environmental protection, as their view affords more intrinsic value to the natural world.

There are several specific and realistic steps we can take in the immediate term to carry out the recommendations of Warner’s article. For instance, we can look to existing environmental statutes for provisions which defer to tribes’ sovereignty. Once these are identified, we can, through legislation or agency rulemaking, provide funding and resources to tribes to spur innovation under these statutes. Tribes can then inform regulators on their practices in order to improve the implementation of environmental laws. The federal government should also, as Warner suggested, encourage Indian tribes to create their own codes of professional conduct and other statutes which incorporate their own values. We can then from these rules learn how to improve the resilience of American environmental statutes.

School districts also can integrate Native customs in school curricula, which would better acclimate American students to ecocentric environmental ethics. This will in turn breed a new generation of lawmakers, lawyers, and citizens who have a better appreciation for Indian traditions.

1 33 Pace Envtl. L. Rev. 397 (2016).

2 Id. at 410.

3 Id. at 411.

4 Id. at 412.

5 Id.

6 Id. at 412.

7 Id. at 413 (citing William J. Brooks, Conflicted Out: Federal, Tribal, and Private Lawyers in the Real World of Indian Law: One (Former) Tribal Attorney’s Perspective, in 32nd Annual Federal Bar Association Indian Law Conference Course Materials 281, 281 (Apr. 19–20, 2007)).

8 Id. at 415.

9 Id. at 415 (quoting Robert A. Williams, Jr., Large Binocular Telescopes, Red Squirrel Piñatas, and Apache Sacred Mountains: Decolonizing Environmental Law in a Multicultural World, 96 W. Va. L. Rev. 1133, 1134–35 (1994)).

10 Id. at 416-20.

11 Id. at 429-30.

12 Id. at 425.

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