chevron-down Created with Sketch Beta.
    January 23, 2024 HUMAN RIGHTS

    Seeking Higher Ground—How Congress Can Help the Shoalwater Bay Tribe and Other Indian Tribes Being Pushed to Their Limits Due to Climate Change

    by Chairwoman Charlene Nelson and Geoff Strommer

    After months and years of natural disasters and extreme weather events, even the skeptics are having a hard time denying the obvious: climate change is here. And the climate refugees are coming. Many of the first will be Indigenous people, who are often those most affected by climate impacts and who, from all over the world, have been sounding the alarm for decades.

    In the United States, this means Tribal Nations and Alaska Natives are at the forefront of the climate crisis. For many Tribal communities, spiritual and cultural identity is rooted in ancestral homelands. As climate change affects the ability to engage in subsistence and other important activities, there is far more than habitat loss at stake.

    The painful decision to break ties with the land has already become necessary for some Tribal communities, including the Shoalwater Bay Indian Tribe (Shoalwater or Tribe). But long-serving Chairwoman and Elder Charlene Nelson prefers to think of it also as an opportunity—a chance to rebuild her community even stronger in a new location with long-term resilience. That is, if she can tear through the red tape blocking her way.

    The Shoalwater Reservation lies on the north shore of Willapa Bay in southwestern Washington State.

    The Shoalwater Reservation lies on the north shore of Willapa Bay in southwestern Washington State.

    HANS-JÜRGEN HÜBNER, CC BY-SA 3.0 VIA WIKIMEDIA COMMONS

    Living on the Edge — Chairwoman Nelson

    On the north shore of Willapa Bay in southwestern Washington State, just barely above sea level, lies the Shoalwater Reservation. As a coastal tribe, Shoalwater is a steward of the great Pacific Ocean. Yet, the same ocean that gives us life now also threatens to destroy us, as the waters wash more and more of the land away. Already, a single tsunami event would take out the entire Tribal community—homes, government, and what defines Shoalwater people.

     We have been taking steps to combat coastal erosion for decades, including by working with the U.S. Army Corps of Engineers to construct an embankment traversing the Reservation’s tidelands and adjacent shoreline, a protective earthen barrier meant to deter the erosion. But the embankment itself began washing away at a rapid pace due to heavy winter storms between 2018 and 2020. The Army Corps worked to rebuild and reinforce the embankment, completing the $40 million replenishment project at the end of 2022. Yet, with all this effort and expense, the barrier will need replenishing in another five years. It is clear that these fixes will not preserve our home in the long term.

    We need to move to higher ground to survive as a tribe. We used our own funds to purchase about 1,200 acres, and counting, of land adjacent to the current Reservation. At 250 feet above sea level, this land will provide much better protection for the community. However, the tribe cannot pick and choose landscapes. There are no nearby federal lands, and private timberland is neither cheap nor necessarily simple to just move onto. The land is totally raw and undeveloped, and more still may be needed. There are no utilities, no infrastructure, no roads to speak of. In short, we are starting from scratch.

    The full relocation project is expected to cost at least $140 million. That price tag may be low compared to a perpetual fight against ocean erosion, but it requires help. Gathering this funding and putting it to use will be extremely complicated, requiring the tribe to piece together a “patchwork” of various federal resources without any interagency coordination or guidance from the U.S. government.

    Navigating Without a Map — Geoff Strommer

    Funds for roads, homes, and utilities (water, sewer, electric, broadband, etc.) each have a discrete source from federal agencies, and each source comes with its own regulatory strings attached. Piecing these resources together to coordinate a massive relocation project is a complex, resource-intensive undertaking.

    And there is no map to follow. The Bureau of Indian Affairs (BIA) directly acknowledged this challenge in a 2020 report on climate change relocation needs in Indian Country:

    "No relocation-specific [federal] programs exist, therefore funding is pieced together from agencies such as [the Department of Housing and Urban Development] on housing, BIA on planning and transportation, [the Federal Emergency Management Agency] on emergency measures, [the Army Corps] for engineering solutions to erosion issues, [the Indian Health Service] for health infrastructure, and the [Bureau of Indian Education] for schools/education infrastructure, etc. This patchwork approach leaves gaps in actions due to the criteria of each program and requirements of each (i.e., cost share, technical aptitude needed)."

    (BIA, The Unmet Infrastructure Needs of Tribal Communities and Alaska Native Villages in Process of Relocating to Higher Ground as a Result of Climate Change, at 6 (2020).)

    Similarly, the Government Accountability Office (GAO) has named “[u]nclear federal leadership” as “the key challenge to climate migration as a resilience strategy.” (GAO, GAO-20-488, A Climate Migration Pilot Program Could Enhance the Nation’s Resilience and Reduce Federal Fiscal Exposure, at 38 (2020).) Since “no agency has been given the authority to lead and organize federal assistance for climate migration,” support “has been limited and provided on an ad hoc basis.” Id.

    The Highest Moral Obligation — Chairwoman Nelson

    The United States owes unique moral, trust, and treaty responsibilities to Tribal Nations, instilling the highest moral obligation to protect Tribal lands, peoples, and rights. (See generally Cherokee Nation v. Georgia, 30 U.S. 1 (1831).) It must be acknowledged that Tribal Nations are stuck in an impossible situation, not of our own making. Many tribes are located on lands that have largely been dealt to us by the complex history of land loss and federal policy, so we find ourselves confined to certain boundaries by treaties or executive orders or restoration legislation. These lands were often those that settlers considered least desirable, and now climate change is putting much of them at risk. Clearly, the federal government must do more to assist us in securing safe, stable, permanent homelands.

    Seeking a Legislative Solution — Geoff Strommer

    A federal program designed to bring all these resources together would allow more expeditious and efficient relocation and other climate resilience efforts for Tribal communities like Shoalwater, enabling them to carry out their plans with the urgency they demand. Shoalwater, along with other Tribal partners, has been urging Congress to create just such a program.

    As conceived, the Tribal Environmental Resiliency Resources Act (TERRA Act) would create a framework for integrating federal programs into coordinated plans used to address a tribe’s climate resilience needs. The Department of the Interior would provide guidance to Tribal applicants and lead coordination efforts with other federal agencies. By simplifying the process, providing this assistance, and minimizing the role of competitive grant funding, the TERRA program would factor in the severity and urgency of the environmental threats facing applicant Tribal communities and help level the playing field for smaller tribes by providing substantial federal support and technical assistance.

    This program would not be the first of its kind. The Department of the Interior already administers a similar program for workforce development and assistance known as the “477 Program.” We know this model can be effective, and it would be a huge relief for tribes facing the ever-increasing impacts of climate change.

    Armed with mechanisms to streamline statutory, regulatory, and administrative requirements to reduce the burden on Tribal Nations and promote the policy of self-determination, the TERRA Act would be an enormous improvement over the status quo. It is expected to be introduced in Congress in the coming months.

    The Ultimate Cost — Chairwoman Nelson

    The cost of our tribe not finding the support to relocate our village is the highest cost any community can pay. The more days that go by, the closer our community is to vanishing off the coast, resulting in the disappearance of our lands, our people, and our way of life.

    Sea level rise will not only mean the annihilation of our Tribal community but the surrounding community as well. Tribes are integrated with their surrounding communities. Shoalwater is now one of the largest regional employers, including in two counties with some of the highest poverty levels in the state, and many of the current key roads in the area are merely a few feet above sea level. It is no wonder the tribe’s efforts have formal support from local area governments, as support for our tribe means support for their communities as well, and a new road system will be a necessary and forward-thinking coastal connection for generations to come.

    Despite these challenges and existential dangers, I know the Shoalwater people are resilient, and I remain optimistic. Piece by piece, step by step, we move onward and upward.

    Entity:
    Topic:
    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    Charlene Nelson

    Elder and Long-Serving Chairwoman of the Shoalwater Bay Indian Tribe

    Charlene Nelson is an Elder and long-serving Chairwoman of the Shoalwater Bay Indian Tribe. She has a deep knowledge and desire for all Tribal Nations to be able to preserve their heritage and homelands for the next generations. 

    Geoff Strommer

    Partner at Hobbs Straus Dean & Walker, LLP

    Geoff Strommer is a partner at Hobbs Straus Dean & Walker, LLP. He has worked for many years with the Shoalwater Bay Indian Tribe and other Tribes around the country as they face relocation and other challenges related to climate change and other weather events.