The following article is part of a series of reflections on the 2025 New Directions in Environmental Law Conference, also known as NDEL. On February 15, 2025, scholars, practitioners, students, and policymakers convened at Yale Law School to analyze changes and emerging issues in environmental law. The series covers the keynote speaker and each panel from NDEL, and is written by Student Reporter attendees. Student Reporters were guided by Alysia LeComte and Julianne Frey, NDEL Committee Members and 2L students at the Elisabeth Haub School of Law at Pace University. Student reporters Carine Rofshus and Ashley Gentile prepared this edited summary of the panel entitled “Roots and Resistance: New Directions in Indigenous Rights,” featuring panelists Cliff Villa, Nicholas Robinson, Ken Lucero, and Michel Gelobter. Organized by Eli Calhoun (Yale MEM/Pace JD’27) and moderated by the Executive Director of the Yale School of the Environment, Michel Gelobter, the panel brought together three distinguished voices. Cliff Villa is a former EPA attorney of 22 years and Deputy Assistant Administrator of the U.S. EPA Office of Land and Emergency Management for the Biden Administration, and is Professor of Law at the University of New Mexico School of Law. Nicholas Robinson is the founder of the Environmental Law program at Pace University and the Gilbert & Sarah Kerlin Distinguished Professor of Environmental Law. He recently began the first Indigenous Peoples’ Treaty Rights Seminar Course at Pace, focusing on the first treaties of the Lenape Nation, who lived where Pace is situated today. Ken Lucero is a former Tribal Administrator for Zia Pueblo, where he is an active member of the Zia Tribal Council, Field Representative for US Senator Martin Heinrich, Director for RWJF Center for Native American Health Policy at the University of New Mexico, and now, Director of Tribal and Indigenous Lands at the Trust for Public Land.
Introduction
This discussion focused on the legal, political, and cultural challenges that Indigenous communities face regarding the exercise of Tribal sovereignty over environmental conservation, contamination, and clean-up initiatives. Further, the conversation called for collective action to address major environmental problems and the need for a philosophical shift – a reorientation of relational understanding regarding selves and lifeworlds – centered on relationality at a global scale to fulfill this agenda. These actions stem from traditional knowledge (TK) and traditional ecological knowledge (TEK), encompassing an Indigenous worldview that recognizes an interdependent connection between human and ecological communities. Resistance was a thread throughout the discussion, expressed as an array of historical and active legal actions that impact connections to place and shape lived experiences. The panel used this opportunity to link critiques of the reality of Tribal sovereignty and the government-to-government relationship it necessitates, with corporeal knowledges and plastic legal instruments. Resistance, here, is the fight for environmental justice through the exertion of tribal sovereignty.
Tribal Sovereignty and Tribal Law
For Indigenous peoples, resistance is a cyclical act that stems from the legacy of settler colonialism, whose foundation lies in the Marshall trilogy. The trilogy forms the basis of federal Indian law and recognizes the government-to-government relationship between Tribal Nations and the United States. It comprises three cases written by Chief Justice Marshall: Johnson v. M’Intosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). The panel emphasized the legal reliance on the doctrine of discovery in Worcester v. Georgia that stemmed from Johnson v M’Intosh, which established colonialism as customary law by using the European government practice of acquiring absolute title to land in the Americas. This legacy created a cycle of distrust between Tribal governments and the U.S. Federal government, which was used to strip Tribal Nations of their land titles and Trust lands, a tactic exacerbated during the Allotment Era.1 In 2021, the Doctrine of Discovery was denounced by the International Union for the Conservation of Nature in Marseille (resolution 119), but the US abstained. The Doctrine is so entrenched in U.S. legal thought that Ruth Bader Ginsburg, an otherwise liberal Supreme Court jurist, who opined prolifically regarding civil rights, cited it as good law in a footnote (see footnote 1 in City of Sherrill v. Oneida Indian Nation of New York, 2005). The Supreme Court is still the battleground for such debates, but community resistance through law-making and theories of practice directed the conversation between the panelists.
Sovereignty: A Government – Government Relationship
Tribal sovereignty is a governmental power recognized under International Law, but the relationship is by no means static. Instead, as Lance Sorensen noted in a 2017 paper, “Native American Tribal sovereignty is a constitutional puzzle constantly worked upon, but never quite solved.” The early years of the relationship took a diplomatic form, where treaty-making purported to make the parties legitimate partners. Over many years, the federal government has moved to deprive Tribal sovereignty of such meaning, and the embedded plenary power-pupilage model endures. For example, the recent divestiture from territorial-based to membership-based definitions of Tribal sovereignty. Nonetheless, recognizing Tribal Nations as government entities allows for the creation and enforcement of local laws and the use of federal environmental law as a tool for exercising their powers. Within the international community, many appreciate that Tribal Nations are government entities and entrust them to self-representation of institutionalized local knowledges as avenues for social and environmental sustainability. To this end, the panel discussed the Conference of the Parties (COP) 2024, which formed an alliance to hold the government accountable for preserving biodiversity that necessitates a grassroots view of protecting our planet. Such views intrinsically exalt traditional knowledges.
TEK and Conservation
The discussion emphasized that there is no single definition of Traditional Ecological Knowledge (TEK) because Indigenous Knowledge (IK) is non-homogeneous, place-based, and develops through long-term observation and interaction with the natural world. However, TEK is broadly understood as a “cumulative body of knowledge, practice, and belief, evolving by adaptive process, and handed down through generations by cultural transmission, about the relationship of living beings with one another and their environment”. The use of Water Rights to recognize Cultural Resources and the integration of TEK into environmental contamination initiatives, as discussed below, demonstrate key factors essential to the successful integration of TEK into resource management. The initiatives include: 1) collaboration with Indigenous communities, 2) evaluation of how Indigenous ecological insights support the stewardship of culturally and ecologically significant environments, and 3) a dedication of resources for training and policies that foster respect for TEK. Further, while TEK is conceptualized as a Western abstraction, it is legitimized as a lived experience tied to cultural and economic means among Indigenous communities. Robin Kimmerer, Pottawatomi author of the popular Braiding Sweetgrass, uses western science and TEK on the same platforms and demonstrates how the applied methods of each are replicable anywhere. The panel discussed her productive and inclusive application of TEK to ecological restoration, which she practices atthe State University of New York College of Environmental Science and Forestry.
Valuation of Traditional Knowledge
Water Rights: Cultural Uses Recognized
Water rights and the oppression of Native Americans have a complex history, particularly regarding intensive water use in farming, promoted and enforced due to rationalist efficiency understandings. Nonetheless, where rights were acknowledged (two well-known early examples being in Winters v. United States and United States v. Winans), in practice, imposed administrative delays have deprived communities of these rights, often for many decades. The panel discussed these issues but pointed to some recent positives. Tribes may choose to implement federal environmental law or expand and create their own environmental laws and codes. The Pueblo of Isleta, for example, established water quality standards to protect waters in New Mexico that are subject to the federal Clean Water Act. The Tribe’s water quality standards for the Rio Grande would require actions by the City of Albuquerque, which is upstream, to protect the Tribe’s uses downstream. Upon legal challenge by the City, the Tenth Circuit Court of Appeals affirmed the Tribe’s authority to establish and enforce its own water quality standards, including standards to protect cultural practices. The implementation of Clean Water Act standards should not be underestimated, but as the Pueblo of Isleta has seen over the past two decades, new environmental concerns and the unaccounted externalities produced, particularly in hot, dry climates, have not been enough to enforce environmental equities. The lack of protection for cultural uses is of equal concern. The outcome of one decades-long battle for recognition of water rights by the Zuni Indian Tribe and others was settled in February 2025 with the Zuni Indian Tribe Water Rights Settlement Act of 2025. The Act marked an acceptance of the importance of cultural rights and uses. This is not a document simply realizing water rights and enforcing established concerns of the Clean Water Act to said waters. Instead, it addresses the cultural facet of use-based rights and demonstrates how TEK can offer paths to both extra-material and material sustainability.
(photo by the Bureau of Land Management)
TEK and Superfund Clean-Up
TEK has a valuable role in environmental contamination and remediation initiatives, in contrast to Western-centric environmental clean-up strategies that are historically harmful to Indigenous communities. For the Diné, an Indigenous Tribe of the Southwestern United States, and several other Indigenous communities, the use of TEK in a contamination context includes the holistic health of the community. TEK stems from cultural values that recognize a reciprocal relationship to the environment connected with physical, emotional, psychological, and spiritual health outcomes. Due to the legacy of radiation-caused cancers from uranium mining, the integration of TEK is essential in the remediation of abandoned uranium mines (AUMS) on the Navajo Nation, where there are over 500 AUMS across Arizona, New Mexico, and Utah.2 AUM concentrations are the highest in Cameron, AZ; Chinle, AZ Cove, AZ, Monument Valley AZ-UT, and the Grant – Gallup, NM corridor. This Navajo Nation example is just one where TEK is centralized in the remediation of AUMS. The Saskatchewan Research Council is also integrating TEK into AUM remediation in northern Saskatchewan, Canada for AUM sites located near First Nations and Métis communities. In a joint effort between the U.S. Environmental Protection Agency (EPA) and the Navajo Nation Environmental Protection Agency (NN EPA), these agencies are dedicated to the inclusion of TEK throughout the project’s duration. Their efforts have included training employees on TEK, hiring local Diné (Navajo) representatives, and opening offices in Flagstaff, Arizona and Window Rock, Arizona. On the ground, this entails a collaborative approach between scientists from the U.S. EPA, the NN EPA, and federally contracted experts, including environmental engineers, geologists, physicists, health physicists, public health professionals, and anthropologists. It also includes community involvement organized through monthly meetings with Navajo government officials and local community members. The Navajo Nation demonstrates how tribal governments can exercise tribal sovereignty through federal government programs.
Additional Tools
Tribal Easements
Another tool discussed by the panel was Tribal Conservation Easements. Conservation easements have their roots in nineteenth-century Britain, with the current drive growing out of the broader environmental movement of the 1970s. For Tribal lands, easements allow Tribal Governments to hold rights and to act as stewards for lands, and to secure those lands from future divestment. Easements are a particularly effective tool in that they can be devised in perpetuity, and when private in nature, cannot be ‘undone’ by the federal government, as they are protected from executive powers. The party holding the easement title, usually a nonprofit land trust or government entity, will have certain conservation objectives, but the practices that party utilizes will inherently be rooted in their understandings of ecological knowledge. Additionally, easements owned by public entities often include rights-of-way for the public, including rights to recreate. Some of the ideological notions where this form of conservation is rooted may not always align with TEK. Therefore, the panel advocated for a system of conservation easements facilitated for and managed by Native Americans who can utilize TEK in addition to a suited land and resource ethics for the communities affected by the easement. In 2023, the Native Land Conservancy, a native-led environmental conservation nonprofit, began utilizing conservation easements allowing for Indigenous cultural access. The nonprofit currently owns easements on more than 800 acres of culturally significant lands and applies traditional ontological knowledge in its conservation practice. Such a tool allows for future sovereignty in property ownership over the land and facilitates choice in conservation practice, equally essential to the realization of sovereignty.
Trust for Public Land
The Trust for Public Land is another example of TEK that centers around community priorities. For example, The Trust for Public Land develops relationships with Tribal organizations and non-governmental organizations (NGOs) to educate Congress on the significance of Trust responsibility and Tribal sovereignty; workforce development in conservation that serves the community such as school yards, parks, and trails creates a healthy environment for the mind, spirit, and body. The political climate of the conference brought many questions regarding diversity, equity, inclusion, and accessibility (DEIA). The panel emphasized that in Indian Country, DEIA work is not a replacement for the trust responsibility and treaty rights because they are not race-based initiatives; therefore, Indigenous rights are not dismissible in the way DEIA initiatives have been in recent weeks. The EPA’s mission is to protect human health and the environment, thus, protecting Tribal resources is not a special protection, it is the law. However, the law is not immutable. The panel broadly unpacked some of the legal challenges Native Americans are facing regarding sovereignty and their environments, and how those legal challenges are different from those faced by DEIA initiatives. The panel also highlighted some particularly productive examples of resistance, legal challenges, and TEK applications. The panel concluded by emphasizing that resistance for Indigenous communities consistently molds to the prevailing requirements. Indigenous peoples’ ability to utilize TEK and legal instruments, whether federal or municipal, was given as a cause for optimism, but a very active kind of optimism. One that affects continued resistance against always-dominant counter-objectives.
1. This is apparent in the failure of the United States to respect tribal religious claims to sacred sites or burials in favor of development projects, as demonstrated in Wilson v. Block, Lyng v. Northwest Indian Cemetery Protection Association, Navajo Nation v. The U.S. Forest Service and Standing Rock Sioux Tribe v. Army Corps of Engineers (Gilio-Whitaker 2019:38 as cited in Robert A. Williams, Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005).