Climate Change Is Forcing Indigenous Communities to Relocate With Little Assistance from the Federal Government—But Congress Can Make it Easier?

By Geoff Strommer

Geoff Strommer is a partner at Hobbs, Straus, Dean and Walker, LLP, a national law firm that has specialized in representing tribes and tribal organizations throughout the United States for 40 years. The author wishes to thank Joel Neimeyer, P.E., long-time Alaskan and former federal engineer, who graciously reviewed a draft and provided very helpful insights into issues related to Alaska. He would also like to thank his colleagues Caitrin McCarron Shuy and Craig Jacobson for their help with this article.

As climate change becomes more and more of a reality for our planet, some of the most impacted communities are America’s indigenous people. Tribal Nations (including Alaska Native villages) throughout the United States are experiencing climate threats such as flooding, erosion, permafrost degradation, ocean acidification, increased wildfires, extended drought, and changes in seasons that have put our homelands and our ways of life in jeopardy. Unlike many others in our society, they are rooted to their ancestral homelands. If circumstances change due to climate instability— flooding, habitat loss, diminished drinking water, incapacity to engage in subsistence activities—Tribal Nations often have nowhere else to go.

For a number of indigenous communities located in coastal areas of the United States, the impacts of climate change have forced these tribes and Alaska Native villages to make the difficult decision to relocate their community to higher ground or pursue managed retreat. Yet, there are few options for tribes in this situation when it comes to federal support. Alaska Native villages are in remote locations, and land ownership issues are complex. Generally speaking, in the lower 48 United States, Tribal Nations have land that is held in trust by the federal government for the benefit of the tribe and exercise their own sovereign authority on their lands. But with limited economic development opportunities and without a local tax base, it is complex (if not impossible) to finance the relocation of a community. Similarly, small Tribal Nations must navigate an intricate web of permitting and planning regulations with the state and federal government just to begin to develop these solutions. Getting their land, or new reservation, in trust can take years—time they do not have.

Challenges for Tribal Communities

For example, the Shoalwater Bay Indian Tribe, located in southwestern Washington State on the shores of Willapa Bay, is planning to relocate their community uphill as their current reservation is washing into the Pacific Ocean. Any major storm or tsunami event could wipe out their entire community. The tribe has purchased some land for this relocation, but the land they own is not adequately suited for development. More land may be needed, and currently there is no infrastructure at all. Their estimated cost of the relocation is $130-$140 million. This is an immense sum for a small rural community.

The Shoalwater Bay Indian Tribe is not the only one in this situation. In 2020, the Bureau of Indian Affairs (BIA) estimated that the cost of relocating tribal communities would be $1.4 billion for tribes in the lower 48 and $3.4 billion in Alaska. Yet, federal investment continues to lag, despite the immense need. Congress also allocated $8 million for this purpose directly in fiscal year 2022 through the BIA and separately an additional $130 million in the Bipartisan Infrastructure Law, which was enacted at the end of 2021.1 However, BIA estimates that tribes will only receive this funding in a maximum of $3 million increments.2 Recognizing the limited federal funding available directly to Tribes, in FY 2022, Representative Derek Kilmer (D-WA) secured over $3.6 million for three tribes in his congressional district using the “Congressionally directed spending” process (formerly known as “earmarks”) for relocation. Despite this notable progress, with billions of dollars of need, these dribbles of funding will not make a difference for many communities before it is too late.

In Alaska, Native Villages have been assisted by the Denali Commission, which is a federal governmental body designated by President Obama in 2015 “to help coordinate federal, state, and tribal resources to assist communities in developing and implementing short- and long-term solutions to address the impacts of climate change, including coastal erosion, flooding, and permafrost degradation.”3 But the Commission “does not have statutory authority to lead and coordinate federal assistance….” While other interagency coordination groups do exist, they often prioritize their own agendas or lack continuity as federal leadership changes.4 The U.S. Army Corps of Engineers does significant “protect in place” solutions for several tribes and Alaska Native Villages. Others have developed one-off projects for tribal communities in need of relocation, but this is not the norm, and funding does not flow in the coordinated way that is necessary to relocate an entire village or reservation.

In the case of the Native Village of Newtok, the village received (as of 2019) $64 million in funds from federal agencies, the state of Alaska and other organizations to relocate their community of 400 residents.5 But they report that relocation efforts have taken many years due to the “challenges piecing together support from many federal programs with varying purposes and requirements.”6 Obama Administration officials thought that the Denali Commission would be able to convince other federal agencies to follow suit with discretionary dollars. In the case of Mertarvik (the new site of the Native Village of Newtok), that did not happen. The tribe still has to compete for grant funding with each and every federal agency.

Lack of Federal Coordination

Federal funding is often triggered by the occurrence of a disaster, rather than the pre-planning to avoid a disaster through relocation. Even when a Tribal Nation submits a formal disaster declaration, there can be little chance that they get approved since, according to the Federal Emergency Management Agency (FEMA), “slow-moving disasters” do not qualify for federal assistance under the Stafford Act,7 though there is little statutory support for such an assertion. Without much direct federal support, Tribal Nations are forced to find funding that is marginally targeted for infrastructure improvements to support village relocation. But these funds are often for discrete projects and require matching funds that small communities just do not have. In other words, it is a constant game of federal funding Whack-a-Mole—that is, if one was trying to smash round moles into square holes.

In 2020, the Government Accountability Office (GAO) noted that there is no clear federal authority designed to support climate migration/relocation efforts. According to GAO, “Unclear federal leadership is the key challenge to climate migration as a resilience strategy. Because no federal agency has the authority to lead federal assistance for climate migration, support for climate migration efforts has been provided on an ad hoc basis.”8 GAO also found that this strategy led to increased federal financial risk, as it is more fiscally responsible to relocate before disaster hits. Similarly, a 2020 BIA report on climate change relocation needs in Indian Country directly acknowledged this challenge:

Although some [Tribal Nations] have been able to obtain federal assistance for projects in relocating villages to higher ground… [n]o relocation-specific programs exist, therefore funding is pieced together from agencies such as [The Depart- ment of Housing and Urban Development] on housing, BIA on planning and transportation, [the Federal Emergency Management Agency] on emergency measures, [U.S. Army Corps of Engineers] 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). Providing the direction for a coordinated, multi-organizational framework would help to address gaps among agency programs.9

GAO has identified no less than 30 different federal agencies that could assist for this purpose, and yet not a single policy directive is currently in place that brings them together. Furthermore, “…implementing projects in this way is not cost effective, for example, because agencies may pay to mobilize supplies, equipment, and people to remote locations multiple times for one relocation.” 10 For example, building a new village on raw land requires road construction as one of the first projects so construction vehicles and equipment can make it to the new site. Yet, prior to the road being built, it is important to install water, sewer, electric, and broadband utilities. Funding for all those discrete purposes would come from various federal agencies.

In addition to federal funding challenges, Tribal Nations in the lower 48 face long delays and challenges with placing their new land into trust, or even paying for land acquisition. When land is placed into trust it is owned by the federal government and held in trust for the benefit of the tribe. The tribe remains sovereign over these lands, resulting in improved efficiency of management. The process required to place federal land into trust can take years to cycle through the Department of the Interior (DOI)—even with full support of a local community, and without jurisdictional or environmental complications. While the Biden Administration has solicited tribal feedback on how to improve the land-into-trust process, any final process that could help tribal communities facing immediate threats due to climate change seems a long way off.

These failures do not only impact Tribal Nations. Many Tribal communities in rural coastal areas today are major economic forces in their local regions. The Shoalwater Bay Indian Tribe, for example, is the largest employer in Pacific County. Roads that run through or adjacent to tribal reservations can be state-operated roads. In rural Alaska, the Alaska Native health care system often provides the only health care access for the entire population of a village. Tribes are integrated with their communities. Failure to secure their future is not only a failure to uphold the trust and treaty responsibility to indigenous peoples, but will fail rural non-Native communities as well.

In short, Tribal Nations are stuck in an impossible situation that is not of their own making. They are located on lands that have largely been prescribed to them by the complex history of land loss and the role of the federal government. Many tribes signed treaties confining them to certain boundaries, or were limited to certain lands by executive orders, but now many of those lands are at risk. At the same time, they are stranded on their own with only nominal support from federal and state partners.

Seeking a Legislative Solution

Clearly, the federal government must do more to assist these Tribal Nations in securing safe, stable, permanent homelands. In the current political environment, it is unlikely that Congress would appropriate billions of additional dollars to support a single program. But what Congress can do is make it easier for tribes to access the funding that is available in a timely and efficient manner.

The Shoalwater Bay Indian Tribe, along with partners at the Affiliated Tribes of Northwest Indians are urging Congress to create a program that would allow tribes to enhance their coordination between indigenous communities who are forced to relocate due to the impacts of climate change.

As proposed, the Federal Funding Flexibility in Tribal Climate Resiliency Act would allow the integration of federal programs implemented for purposes related to climate change, including housing, infrastructure, and economic development; and would provide funding based on tribal or Indian status, competitive or noncompetitive processes, or block grants. Too often, when tribes compete for scarce federal resources through the competitive grant making process, those with larger staff and larger base resources are those who are most successful. The system disfavors smaller communities since they do not have the staff to apply for and then maintain the grants. When looking at a program as enormous and complex as a village relocation, this issue is even more serious. Smaller tribes simply do not have the bandwidth to manage and apply for the dozens of grants it will take to implement a relocation process.

The proposed legislation would also instruct the DOI to create an expedited fee-to-trust process for this purpose; it would create an interagency coordinated funding timetable process for determining when funding is expected to be apportioned and available; and it includes time-period requirements for transfers of funds.

Importantly, the bill would create a coordinated intergovernmental program authorizing an environmental review process for increasing efficiency by carrying out reviews concurrently and creating a one-year coordinated timetable. This last piece is essential to avoid delays and help Tribal Nations manage a complex process.

The bill would also create a tribal working group to advise the eligible federal agencies, who are coordinated by an interdepartmental memorandum of agreement. Many of these recommendations have been supported by GAO. By having this coordination explicitly required and outlined in statute, it will insulate Tribal Nations from changing political priorities as administrations change.

This program is not the first of its kind. The DOI already administers a similar program for workforce development and assistance programs known as the “477 Program.” We know this model can be effective, and will be of great relief to many tribal communities who are staring down the ever-quickening impacts of climate change.

Conclusion

Tribal communities are facing real and immediate threats due to disasters driven or exacerbated by climate change, but tribal governments lack the necessary resources, infrastructure and supports to relocate. It is critical that the federal government step up to help these communities as they face elimination. At the very least, the federal government should cut red tape and provide essential coordination to those communities who need to relocate their services. Without these changes, small communities will still be waiting for relief when the next disaster hits. 

Endnotes

1There was an additional $220 million for “Tribal Climate Resilience” appropriated in the Inflation Reduction Act in 2022, but this funding is not specific to relocation.

2Bureau of Indian Affairs Projects for Irrigation and Power, Safety of Dams and Water Sanitation Construction, Climate Resilience and Relocation Implementation of the Bipartisan Infrastructure Law, Initial Spend Plan, Dept. of Interior , Feb. 16, 2022, at pg. 13.

3A Climate Migration Pilot Program Could Enhance the Nation’s Resilience and Reduce Federal Fiscal Exposure, U.S. Gov't Accountability Off., GAO-20-488, July 6, 2020, at pg. 16, https://www.gao.gov/products/gao-20-488.

4Alaska Native Issues: Federal Agencies Could Enhance Support for Native Village Efforts to Address Environmental Threats, U.S. Gov't Accountability Off., GAO-22-104241, May 18, 2022, at pg. 29-30, https://www.gao.gov/products/gao-22-104241

5Id.

6Id

7Id, at 16-17.

8Id, at opening summary.

9The Unmet Infrastructure Needs of Tribal Communities and Alaska Native Villages in Process of Relocating to Higher Ground as a Result of Climate Change, U.S. Dep't of Interior, Bureau of Indian Affairs/Office of Trust Services, Tribal Climate Resilience Program, May 2020, at pg. 6, https://www.bia.gov/ sites/default/files/dup/assets/bia/ots/tcrp/Informational_Report. pdf.

10Alaska Native Issues: Federal Agencies Could Enhance Support for Native Village Efforts to Address Environmental Threats, U.S. Gov't Accountability Off., GAO-22-104241, May 18, 2022, at pg. 37, https://www.gao.gov/products/gao-22-104241