Challenges and Opportunities to Uphold Food Sovereignty for U.S. Tribes
Chloe Nguyen
Author and Research Assistant
GW Law, The George Washington University
Randall S Abate, J D
Supervisor and Collaborating Professor
Nippon Foundation Ocean Nexus, GW Law, The
George Washington University
This report includes background on food sovereignty generally and for Indigenous communities, comparative case studies on tribes in Washington and Alaska, and two court cases describing how legal decisions will affect tribal food sovereignty
Chloe Nguyen
Supervised by Dr Randall S Abate, J D
Ocean Nexus Special Report | 2024 oceannexus.org
Introduction
The opportunity to choose the food one consumes is vital to Native American and other cultural communities in the United States and abroad. Food is more than just survival; it can be a social venture that represents culture and history Food sovereignty is a relatively new concept and is recognized as the “ability of communities to determine the quantity and quality of the food that they consume by controlling how their food is produced and distributed.ˮ1 Food sovereignty is linked to food security, but the latter focuses on basic access to nutritious food rather than considering the cultural and spiritual connections that people may have with their food and processes.2
Part I of this paper provides a background on Native American communitiesʼ modern relationship with food because of colonization and the importance of food sovereignty to their cultures, customs, and economies. It also highlights the challenges these communities face, including chronic health problems, barriers to procuring whole, healthy foods, and loss of culture due to colonization Part II focuses specifically on food sovereignty dynamics for tribes in Washington and Alaska The Pacific Northwest Indigenous communities rely heavily on salmon as a food source and cultural tie to their ancestors The Lower Elwha Klallam Tribe in Olympic National Park is one of these communities and has struggled to retain its fishing numbers after dams interrupted the salmonʼs migration. The Inuit in Alaska face similar pressing food sovereignty problems because of climate change, which threatens their traditional hunting and fishing practices Part III of this paper examines case studies in food sovereignty challenges for the Lower Elwha Klallam Tribe in the state of Washington and the Yukon-Kuskokwim Health Corporation Prescription Produce Program in Alaska. Part IV focuses on two Supreme Court cases that have both a direct and indirect effect on food sovereignty for Native Americans in the United States.
I. Food Sovereignt y in the Native American Context
American Indian and Alaska Native AI/AN communities face many challenges regarding food sovereignty and their right to choose which foods are adequate for them. Early colonization forced Indigenous peoples out of their ancestral lands and onto reservations where they lacked access to traditional foods and their historical processes to obtain them AI/AN communities have been pushed to foreign lands, “and in many cases, the
1 U.S. DEPARTMENT OF AGRICULTURE, https://www.climatehubs.usda.gov/hubs/northwest/topic/tribal-food-sovereignty-and-climate-change-northwe st (last visited Aug. 2, 2024
2 Tara L. Maurdrie et al., Food Security and Food Sovereignty: The Difference Between Surviving and Thriving, HEALTH PROMOTION PRACT , Oct. 25, 2023, at 1075
treaty-making system alienated Tribes from their traditional land.ˮ3 Instead of using their traditional ways of hunting and gathering, they are forced to consume grocery store foods that lack the nutritional values their bodies require. Since colonization, many Indigenous communities have been forced to adopt diets that reflect Anglo ideals, with foods centered around starches and dairy, but some continue to sustain themselves through the traditional ways of hunting and fishing 4 Many are not only blocked from their traditional food sources, but food is unaffordable in their areas A recent price index from 2018 revealed that reservation grocery store prices are consistently more expensive than national prices, with household items such as bread being as much as 85% more on reservations.5
Indigenous foods are unlike the basic foods found in a local grocery store Unfortunately, the uniqueness of Indigenous foods can make them difficult to find. The Navajo Nation is the largest reservation in the United States, yet residents are forced to drive hundreds of miles to buy food.6 As a result, there is a greater reliance on nutrient-poor foods loaded with preservatives for a longer shelf life 7 In contrast, Indigenous foods are specifically nutritious to Native Americans, are “well-adapted to local climates, and serve an important role in traditional foodways ˮ8
Reliance on outside food sources has been detrimental to the overall health of AI/AN communities The lack of access to high-quality food has led to a lower life expectancy and more chronic health conditions than other ethnic groups 9 Specifically, studies have shown that 48.1 percent of AI/AN adults and more than 50 percent of children are obese.10 Native adults constantly struggle with diabetes, with a rate four times higher than that of non-Hispanic white individuals.11 With all of these health issues, AI/AN communities need more healthcare services, but unfortunately, the per capita spending is less than half of the United States average 12
3 INDIGENOUS FOOD SOVEREIGNTY IN THE UNITED STATES 5 Devon A. Mihesuah & Elizabeth Hoover eds., 2019
4 Id.
5 Sarah Usha Maillacheruvu, The Historical Determinants of Food Insecurity in Native Communities, CTR ON BUDGET & POLʼY PRIORITIES Oct. 4, 2022, https://www.cbpp.org/research/food-assistance/the-historical-determinants-of-food-insecurity-in-native-com munities.
6 Nadine Budd Nugent et al., Food sovereignty, health, and produce prescription programs: A case study in two rural tribal communities, 11 J AGRIC., FOOD SYSTEMS, & COMTY DEVʼT 177, 186 2022
7 Id.
8 U.S. DEPARTMENT OF AGRICULTURE, https://www.usda.gov/tribalrelations/usda-programs-and-services/usda-indigenous-food-sovereignty-initiative (last visited Aug. 2, 2024
9 U.S. DEPARTMENT OF THE INTERIOR INDIAN AFFAIRS, https://www.bia.gov/service/indigenous-tourism/why-food-sovereignty-matters (last visited Aug. 2, 2024.
10 Usha Maillacheruvu, supra note 5
11 Id.
12 Id.
Tribal food sovereignty involves several important tenets: 1 empowering Native households and communities, 2 re-introducing traditional food production processes, 3 working with nature, 4 valuing food providers, and 5 providing opportunities for local food cultivators and distributors 13 Food sovereignty for Indigenous communities seeks to “democratize food production, distribution, and consumptionˮ so Tribes have the right to produce the foods necessary for them 14 Subsistence, or traditional, foods make up a majority of Native Alaskansʼ diets, and are “essential to preserving traditional foodways and enhancing food sovereignty.ˮ15
The Mohegan Tribe in southeastern Connecticut relies heavily on non-genetically modified seeds and agrees with the Seed Savers Exchange that statesʼ “agriculture and seeds provide the basis upon which our lives depend ˮ16 Many Americans might not understand the importance, but to them, seeds are a part of “the larger picture [that] grows deep-seated roots and shapes the bigger picture in the mindset of our future generations.ˮ17 Similarly, the Muscogee Creek Nation in Oklahoma relies on sofke corn and Indian pumpkin, two important crops that have been cultivated by their ancestors for thousands of years 18 They are not only important for consumption but are “revered through language, stories, beliefs, and patterns of behaviorˮ that contribute to the tribe as a whole 19 The Alaskan natives, Mohegan Tribe, and Muscogee Nation are only a few examples of how food sovereignty is exceptionally important for Indigenous communities. Food is more than a source of nutrition; it is part of their culture, livelihood, and history in the United States.
II. Food Sovereignt y in Washington and Alaska Indigenous Communities
In the Pacific Northwest, Tribal food sovereignty has suffered the consequences of climate change and is threatened by higher temperatures, changes in precipitation, and extreme weather.20 These changes have made it difficult for Tribes to produce and harvest food in the manner to which they are historically accustomed. Given that it is a region with many streams and rivers, many of the foods important to the Tribes include salmon and
13 U.S. DEPARTMENT OF AGRICULTURE, supra note 1.
14 INDIGENOUS FOOD SOVEREIGNTY IN THE UNITED STATES, supra note 3, at 9.
15 Budd Nugent, supra note 6, at 181.
16 Traditional Foods in Native America, CENTERS FOR DISEASE CONTROL AND PREVENTION, 1, 6 2013, https://www.cdc.gov/diabetes-ndwp/media/Part-I Traditional-Foods-in-Native-America-April-21.pdf
17 Id. at 7.
18 Id. at 15
19 Id. at 16
20 U.S. DEPARTMENT OF AGRICULTURE, supra note 1.
shellfish.21 They are an integral part of food sovereignty for these Tribes and contribute greatly to “tribal religion, culture, and physical sustenance.ˮ22 They are part of many Tribesʼ identities, where fishing is the preferred livelihood and act as their primary food source, making them an “essential aspect of [their] nutritional health ˮ23 The Columbia River Inter-Tribal Fish Commission expresses that “without salmon returning to our rivers and streams, we would cease to be Indian people ˮ24
Salmon also plays an important role in the Pacific Northwestʼs ecosystem, as they return “ocean nutrients to the rivers and streams where they were born, feeding wildlife and even the forests with their bodies ˮ25 Salmon are a very sensitive species, and they adapt to the environment they exist in 26 Unfortunately, climate change has endangered salmon populations throughout the Pacific Northwest. One of the most pressing issues is increased water temperatures, which can “significantly affect the distribution, health, and survival of the species.ˮ27 Dams only further exacerbate rising water temperatures and can negatively affect the oceanward migration of salmon and other fish 28
The United States Department of Agriculture has recognized the difficulties for Tribes threatened by climate change and has sought to promote their food sovereignty The USDA wants to build partnerships with the Tribes to gauge what their specific needs are 29 Since much of Indigenous food sovereignty is based on location and access to specific foodways, the USDA is seeking to increase Tribal access to land with traditional foods 30 Additionally, the agency recognizes that Tribes might need more assistance for their production and agriculture, so the USDA is focusing on supporting climate-adaptation practices and providing “Indigenous workforce opportunities in the cultivation and distribution of food ˮ31
In Alaska, the Inuit have been an important part of the ecosystem for thousands of years through hunting, fishing, and gathering.32 While the Arctic may seem like an
21 Id.
22 Tribal Salmon Culture, COLUMBIA RIVER INTER TRIBAL FISH COMMISSION, https://critfc.org/salmon-culture/tribal-salmon-culture/ (last visited Aug. 2, 2024
23 Id.
24 Id.
25 Id.
26 MICHAEL BLUMM, PACIFIC SALMON LAW AND THE ENVIRONMENT: TREATIES, ENDANGERED SPECIES, DAM REMOVAL, CLIMATE CHANGE, AND BEYOND 3 2022.
27 Id. at 179
28 Id. at 6
29 U.S. DEPARTMENT OF AGRICULTURE, supra note 1.
30 Id.
31 Id.
32 INUIT CIRCUMPOLAR COUNCIL ALASKA, FOOD SOVEREIGNTY AND SELF GOVERNANCE: INUIT ROLE IN MANAGING ARCTIC MARINE RESOURCES 16 2020
impossible place to live for others, it brings the Inuit flavorsome and nutritious food, usually in the form of meat and fish.33 They have built their culture around the land, and their respect and collaboration with the environment have allowed them to support “healthy and harmonious relationships and communities ˮ34 The Inuit adamantly believe that “the interconnections between all peoples, wildlife, and the environment within the Arctic ecosystem directly influences food security, and food sovereignty is distinctly tied to food security ˮ35
However, food security, and thus sovereignty, for the Inuit in Alaska is at risk Climate change has threatened their culture and way of life, as “the planet warms several times faster at the polesˮ than any other place on Earth 36 Alaska is especially different because it is “the most vulnerable area in the Arctic in terms of climate change and global warming.ˮ37 This drastic warming has caused permafrost, a frozen layer of ground on or under the surface,38 to melt, compromising the Inuitʼs roads, airport runways, and coastlines 39 Most of the food that is recovered from hunting efforts is stored in natural ice cellars, keeping the Inuitʼs perishables at an appropriate temperature for long-term use 40 Unfortunately, due to permafrost melting, these storage systems are now too warm, making the Inuitʼs “traditional way of storing food from the hunt less dependable.ˮ41 These drastic changes to their environment have threatened their way of life. Hunting is becoming harder and harder each year, and “this important traditional knowledge has begun to lose its value as a result ˮ42 Fishermen have noticed that the ocean fish are also changing, becoming softer and mushier, and they suspect it is because of the warmer waters 43
As part of the effort to support Indigenous people in the Arctic, the Arctic Climate Impact Assessment ACIA created three reports, comprised of a scientific assessment, summary/overview, and a policy report 44 The ACIA was the “first comprehensive multi-disciplinary assessment of the impacts of climate change in the Arctic,ˮ and was created with the expertise of “more than 250 scientists and six circumpolar Indigenous
33 SHEILA WATT CLOUTIER, THE RIGHT TO BE COLD: ONE WOMANʼS FIGHT TO PROTECT THE ARCTIC AND SAVE THE PLANET FROM CLIMATE CHANGE 1 2015.
34 INUIT CIRCUMPOLAR COUNCIL ALASKA, supra note 32.
35 Id. at 16
36 WATT CLOUTIER, supra note 33, at 3
37 Id. at 186.
38 NATIONAL GEOGRAPHIC, https://education.nationalgeographic.org/resource/permafrost/ (last visited Aug. 2, 2024
39 WATT CLOUTIER, supra note 33, at 3
40 Id.
41 Id. at 191.
42 Id. at 3
43 Id. at 189
44 WATT CLOUTIER, supra note 33, at 198
peoplesʼ organizations.ˮ45 The ACIA was much needed for the Indigenous people in the Arctic because global “warming is likely to disrupt or even destroy [their] Inuit hunting and food-sharing culture.ˮ46
III. Comparative Case Studies
The following case studies follow the Lower Elwha Klallam Tribe of Washington and the Yukon-Kuskokwim Delta region in Alaska, comprised of 56 Tribal governments and united by the Yukon-Kuskokwim Regional Tribe Government RTG 47 Washington was chosen for this case study because the Pacific Northwestʼs Tribes have long “identified themselves with salmonˮ as an integral part of their culture and heritage 48 The connection between salmon as a food source and their culture is exceptionally strong and demonstrates how important food sovereignty is to Indigenous communities. The latter case study focuses on the Prescription Produce Program. It is an example of how the government is trying to work with Tribes to provide more whole, healthy foods that are more indicative of their diet before colonization Both of these case studies highlight how important certain foods are to Indigenous communities and how without them, there is a loss of culture, as seen with the Lower Elwha Klallam Tribe, and health, as seen with the tribes in the Yukon-Kuskokwim Delta region.
A. Lower Elwha Klallam Tribe
The Lower Elwha River is part of Olympic National Park in Washington, historically flowing from the snowy peaks of the Olympic Range to the ocean 49 It was home to more than 10 species of cold-water-loving salmon and trout that would travel from the Pacific to spawn their young in the River.50 However, due to urbanization, two dams were built in the early 1900s to support Port Angeles and the logging industry.51 The salmon and troutʼs endless miles of river became just a five-mile stretch.52 Their spawning grounds were ruined by sediment that would usually flow straight to the ocean, but now became trapped by the dams 53
45 ARCTIC CLIMATE IMPACT ASSESSMENT, https://acia.amap.no/ (last visited Aug. 2, 2024
46 WATT CLOUTIER, supra note 33, at 210
47 YK Tribes Unite, CALISTA CORPORATION, https://www.calistacorp.com/yk-tribes-unite/ (last visited Aug. 2, 2024
48 Why Recover Salmon?, STATE OF SALMON IN WATERSHEDS, https://stateofsalmon.wa.gov/executive-summary/why-recover-salmon/ (last visited Aug. 2, 2024
49 Mikaela Ruland, Salmon & Sovereignty, OLYMPIC NATIONAL PARK TRIPS, https://www.myolympicpark.com/park/conservation/salmon-food-sovereignty/ (last updated June 22, 2023
50 Id.
51 Id.
52 Id.
53 Id.
The Lower Elwha Klallam Tribe, which had relied on the River for salmon and trout since the 1800s, no longer had access to the Riverʼs abundance.54 Their traditional diet consisted mainly of salmon, with over 170,000 pounds harvested in 1990.55 This number has since dwindled to under 2,000 pounds 56 The shellfish were also negatively affected by the dams and were found to have high levels of pollutants from Port Angeles Harbor, rendering them unsafe for consumption 57 This significant habitat loss and pollution has robbed the Lower Elwha Klallam Tribe of its food sovereignty and traditional foodways, resulting in high rates of diabetes and obesity within the community.58
The disruption to the Lower Elwha River was not received well by local fishers, Native Americans, and other community members Those groups came together for action, and in 1992, Congress passed the Elwha River Ecosystem and Fisheries Restoration Act.59 The goal of the Act was to increase the Riverʼs salmon and trout populations to what they were before the two dams. After an environmental impact assessment was completed, experts found that the only way to achieve this goal would be to remove both dams so that the ecosystem could thrive again 60
Despite the tremendous win for the Lower Elwha Klallam Tribe and the local community, the fight for food sovereignty was not over. Due to the low population of salmon and trout in the River, the Tribe temporarily prohibited all fishing in an effort to increase numbers 61 Unfortunately, this means that the newer generation of the Tribe has never experienced fishing in the River, which teaches them important lessons such as sustainable harvest and respecting the fish, both very important to their tribal customs and culture 62
54 Elwha Klallam Historical Timeline, ELWHA KLALLAM TRIBE, https://www.elwha.org/culture-history/elwha-klallam-historical-timeline/ (last visited Aug. 2, 2024
55 Id.
56 Id.
57 Id.
58 Id.
59 John Thomas, Restoration of the Elwha River by Dam Removal, Washington, AMERICAN MUSEUM OF NATURAL HISTORY, https://www.amnh.org/learn-teach/curriculum-collections/biodiversity-crisis/restoration-of-the-elwha-river (last visited Aug. 2, 2024
60 Id.
61 Bellamy Pailthorp, Fishery on Elwha rewards tribeʼs long push for river restoration, KNKX Nov 9, 2023, 400 AM, https://www.knkx.org/environment/2023 11 09/first-lower-elwha-klallam-tribe-subsistence-fishery-salmon-elw ha-river
62 Id.
To combat the loss of fishing, the Lower Elwha Klallam Tribe opened a ceremonial and subsistence fishery for coho, a small Pacific breed of salmon.63 The fishery was first opened in October 2023, where 177 salmon were harvested per strict regulations overseen by the Tribal fisheries biologists and enforcement officers 64 The Tribe plans to open their fishery again this fall from late September to late October to support food sovereignty and allow Tribal fishers to feed their families with local fish from “their namesake river ˮ 65
B. The Yukon-Kuskokwim Health Corporation Prescription Produce Program in Bethel, Alaska
Many AI/AN populations live in remote rural communities and therefore face formidable barriers to healthy food as compared to other communities 66 A study found that 59% of the U S population is located within one mile of a grocery store, while only 26% of tribal populations have this access 67 The location barrier and limited availability of fresh produce are why the Federal Distribution Program on Indian Reservations FDPIR has attempted to relieve some of the inequity.68 While the program seeks to provide AI/AN communities with government-supplied food, the result was low-nutrient food void of “cultural appropriateness ˮ69 The shortfalls were recognized, and food sovereignty movements for AI/AN communities have drastically increased in recent years Local communities have come together to brainstorm ways to increase access to culturally appropriate and nutritious food. There have also been financial incentive programs, consisting of community-based organizations, healthcare providers, grocers, local governments, and other entities to support the locals.70
Some of these financial incentive programs are backed by the USDAʼs National Institute of Food and Agriculture NIFA Gus Schumacher Nutrition Incentive Program GusNIP, which directly funds produce prescription projects PPRs.71 The goal of the PPR is to provide culturally appropriate, healthy foods to the AI/AN population The hope is that this program will help decrease the number of individuals with serious health problems such as diabetes and obesity While climate change has presented unique challenges to
63 Elwha River tribal ceremonial & subsistence fishery for coho salmon to open fall 2024, NATIONAL PARK SERVICE May 1, 2024, https://www.nps.gov/olym/learn/news/elwha-river-tribal-ceremonial-subsistence-fishery-for-coho-salmon-to-o pen-fall-2024
64 Id.
65 Id.
66 Budd Nugent et al., supra note 6, at 179
67 Id.
68 Id.
69 Id.
70 Id.
71 Id. at 179 80
the procurement of fresh fruits and vegetables, the USDA is working to alleviate some of the difficulty through the PPR. A typical PPR includes a health provider who identifies eligible patients.72 Eligibility is based on specific health conditions related to diet, such as type 2 diabetes, which is very prevalent in AI/AN communities 73 After the provider issues a prescription, usually in the form of a voucher or coupon, patients are given a monthly allotment to purchase fruits and vegetables from participating grocery stores and supermarkets 74 Prescriptions can last up to half a year and are joined with “nutrition education resources and/or classes.ˮ75
The Yukon Kuskokwim Delta region in Alaska is a rural tribal community and one of two federally funded Produce Prescription Projects PPR by the Department of Agriculture.76 Unsurprisingly, fresh fruits and vegetables in this region cost more than the continental U.S., and residents are at a higher risk for chronic diseases such as type 2 diabetes.77 Much of this increased cost stems from the communityʼs westernmost location along the Arctic There is often limited or difficult access to transportation, as “perishable food must be flown in by planeˮ and “unpredictable weather creates a backlog of freight ˮ78 When food finally does arrive in the village, those who do not have an airport are forced to store items in non-climate-controlled buildings which can cause food to perish more easily.79 Fresh fruits and vegetables are difficult to keep in extreme weather conditions with no climate control, so their procurement is often deterred.
Climate change has only exacerbated weather problems and further restricted access to fresh fruits and vegetables in the YK Delta region.80 Typically in the winter months, rivers are used as ice roads, but due to rising temperatures, the river has not frozen consistently, making delivery even more difficult 81 The PPR in the YK Delta region has been flexible to allow more access to fresh fruits and vegetables for the community Since freezing temperatures are a huge problem specific to this region, prescriptions have been modified to include canned and frozen fruits and vegetables that do not contain any added sugar, salt, or fat.82 This allows the villages that do not have climate-controlled buildings to continually stock healthy foods. Furthermore, the YKHC Diabetes Prevention
72 Budd Nugent et al., supra note 6, at 180
73 Id.
74 Id.
75 Id.
76 Id. at 178
77 Id. at 181.
78 Budd Nugent et al., supra note 6, at 182.
79 Id.
80 Id.
81 Id.
82 Id. at 183
and Control DP&C department has increased the number of these canned and frozen fruits and vegetables available at village grocery stores by partnering with a food wholesaler.83 The department has also partnered with Meyers Farm in Bethel Alaska, a pesticide and herbicide-free produce farm that focuses on sustainable practices 84 Together, they help provide “produce boxes year-round to participants in 47 communities throughout the YK Delta ˮ85
C. Comparing and Contrasting What Food Sovereignty Looks Like for the Two Communities
These two case studies are success stories in part because they represent efforts to return Indigenous communities to foods that respect their sovereignty, culture, and health However, they also highlight the hardships that these communities endure due to colonization and environmental challenges such as climate change While the fishery in the Lower Elwha River and the Prescription Produce Program are steps in the right direction, there is still much work that needs to be done to further protect and expand Indigenous peopleʼs food sovereignty.
IV. The Impact of Relevant U.S. Supreme Court Precedent on Indigenous Food Sovereignt y
A. Haaland v. Brackeen 2023
The Supreme Courtʼs decision in Haaland v Brackeen has lasting positive impacts on sovereignty in the Indigenous community, specifically children Thus, this decision is bound to affect indigenous food sovereignty throughout the country.
Haaland v. Brackeen is a recent Supreme Court case decided in June 2023 and involves the Indian Child Welfare Act ICWA, a federal law that seeks to protect Native children 86 The ICWA guides States in an effort “to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.ˮ87 The ICWA favors family members or Native foster homes for Native children who are removed from their immediate families.88 This means that “Indian families or institutions
83 Id.
84 MEYERS FARM, https://meyersfarm.net/ (last visited Aug. 2, 2024
85 Budd Nugent et al., supra note 6, at 183.
86 Haaland v Brackeen, 143 U.S. 1609 2023
87 25 U.S.C. § 1902 2018
88 See Brackeen, 143 U.S. at 1610
from any tribe (not just the tribe to which the child has a tie) outrank unrelated non-Indians or non-Indian institutions.ˮ89
The ICWA faced backlash from the public, with many states and individuals claiming the law violated the Tenth Amendmentʼs anticommandeering doctrine 90 Petitioners included the states of Texas, Louisiana, and Indiana, a birth mother, and foster and adoptive parents who also argued that the ICWA was employing racial classifications that did not allow families of non-Indian descent to foster or adopt Indian children.91 After a 7 2 decision in favor of the ICWA, the Court concluded that the law is within Congressʼs Article I authority and does not violate the Tenth Amendmentʼs anticommandeering doctrine.92 Traditionally, states have had authority over family law, but the Courtʼs decision in Ridgway v Ridgway set the precedent that if Congress uses its Article I powers to legislate, the state law is preempted 93 The petitionersʼ Tenth Amendment argument also failed They challenged certain requirements that were only applicable to involuntary proceedings where “any partyˮ was included.94 This language not only includes the government but also private individuals and agencies. Therefore, the Court concluded that “a demand that either public or private actors can satisfy is unlikely to require the use of sovereign power,ˮ making it highly unlikely that § 1912(d) was meant to apply exclusively to the States 95
The Supreme Courtʼs decision in this case is a major milestone for Indigenous children and tribal food sovereignty. Staying with their biological families keeps children connected to their cultural roots and family lineage.96 For example, Wilson, a member of the Rosebud Sioux Tribe and Director of the Sicangu Food Sovereignty Initiative, felt “very disconnected from his culture and communityˮ when he moved away for college 97 It was something that affected him deeply, and when he returned home, he had a newfound appreciation for the “renewed connection he has to both the language and foodways of the Lakota people.ˮ98 If the ICWA were declared unconstitutional, countless Indigenous children would be placed in homes that represent nothing from their native culture and community.
89 Id. at 1616
90 Id. at 1613.
91 Id. at 1616
92 Id. at 1613
93 See Brackeen, 143 U.S. at 1630
94 Id. at 1618.
95 Id.
96 Eva Lopez, “Keep Our Families Togetherˮ: A Law That Protects Native Families is at Risk, ACLU Nov 21, 2022, https://www.aclu.org/news/racial-justice/icwa-a-law-that-protects-native-families-is-at-risk.
97 Amelia Keleher, The Supreme Courtʼs ICWA Ruling Impacts Food Sovereignty: Hereʼs Why, FOOD TANK, https://foodtank.com/news/2023/06/the-supreme-courts-icwa-ruling-impacts-food-sovereignty-heres-why/ (last visited Aug. 2, 2024
98 Id.
Darren Ranco, a member of the Penobscot Nation and Associate Professor at the University of Maine, strongly believes that “the role [of ICWA is to maintain the integrity of our communities and families [by] keeping them together. And the oral traditions and the passing down of these knowledges requires these ongoing connections ˮ99
The colonization of Indigenous communities has long impacted their sovereignty and well-being Marshal Galvan Jr is part of the Little Shell tribe that was not federally recognized until 2019 and was therefore not protected under ICWA.100 His story is an example of what could have happened to thousands of Indigenous children if the Supreme Court declared the ICWA unconstitutional. Marshal was taken away from his parents at a young age and placed with a white family, where he constantly felt like he had an identity crisis and turned to gangs, drugs, or alcohol as a remedy 101 He was incarcerated as a young adult and when he left the foster care system at 18, he became homeless, which only furthered his addiction and exacerbated his poor mental health.102 He has since been enrolled into his tribe and said it has “been a journey to unlearn, decolonize myself, and decolonize my mind.ˮ103
Upholding the constitutionality of the ICWA is a step toward protecting Indigenous sovereignty, especially the children. It protects families, gives children a community where they feel they belong, and strengthens cultural roots to protect longstanding traditions and practices, especially related to tribal food sovereignty The Courtʼs decision will ensure that they have a connection to their history and elders, since “elders are the caretakers of [their] knowledge and [their] connection to the past ˮ104 However, challenges to upholding food sovereignty might remain if Indigenous communities that these children are a part of are not able to consume culturally appropriate foods or partake in traditional ways of procuring food, such as hunting. Thus, this ruling is a step in the right direction, but there is still work to do to protect Indigenous food sovereignty.
B. United States v. Washington 2018
This U S Supreme Court case directly affects Indigenous food sovereignty, specifically salmon, which is an invaluable part of Indigenous culture and heritage in the Pacific
99 Id.
100 Lopez, supra note 96
101 Id.
102 Id.
103 Id.
104 Ranco speaks to Food Tank about impacts of ICWA on food sovereignty, UNIVERSITY OF MAINE June 30, 2023, https://umaine.edu/news/blog/2023/06/30/ranco-speaks-to-food-tank-about-impacts-of-icwa-on-food-soverei gnty/
Northwest. The Supreme Court has upheld Tribal treaty fishing rights by affirming a decision from the United States Court of Appeals for the Ninth Circuit.105 Since 1854 and 1855, the federal Indian Tribes in Washington entered into the Stevens Treaties, which afforded them the right to off-reservation fishing in exchange for relinquishing land to make up the state of Washington 106 This case was brought by the United States on behalf of many Washington-based Tribes against the State for violating the “fishing clause of Stevens Treaties by building and maintaining barrier culverts that prevented mature salmon from returning from sea to their spawning grounds,ˮ among other things.107 Culverts are quite common to prevent flooding under roadways, but they can also disrupt the natural flow of water through an area, as they did with the salmon in this case.108
The Ninth Circuit ruled in favor of the Tribes and held that the Stevens Treaties not only guaranteed the right to off-preservation fishing but “included a promise that there would be fish to harvest.ˮ109 Furthermore, the Tribesʼ food sovereignty would be jeopardized because “their usual and accustomed fishing places would be worthless without harvestable fish,ˮ ultimately ending hundreds of years of heritage, culture, and custom 110 The Court ordered an injunction requiring the State to either redesign or replace the culverts to ensure that salmon would be able to pass.111 The State appealed, but ultimately the Supreme Court affirmed the lower courtʼs decision.112
This ruling is a significant step toward affirming Tribal rights and their food sovereignty in the United States, but culverts are not the only threat to salmon in the Pacific Northwest. Climate change in the form of warmer waters and flooding have continually stressed salmon and disrupted their life cycle.113 Dams are another challenge that can drastically reduce populations Regardless, Willy Frank Jr the 3rd of the Nisqually Indian Tribe, said that this decision is not only beneficial for the current Tribal members but also for “all of [their] elders who spent their lives fighting for [their] treaty rights ˮ114 Salmon is not
105 Bellamy Pailthorp, Victory For Tribal Treaty Rights And Salmon As U.S. Supreme Court Upholds Culvert Case Ruling, KNKX June 11, 2018, 1025 PM, https://www.knkx.org/environment/2023 11 09/first-lower-elwha-klallam-tribe-subsistence-fishery-salmon-elw ha-river
106 United States v. Washington, 827 F.3d 836, 837 9th Cir. 2016.
107 Id.
108 WATERLINE PRESERVATION & MANAGEMENT, https://waterlinepreservation.com/blog/weed-control/what-is-a-culvert-and-why-is-it-important/ (last visited Aug. 2, 2024.
109 See Washington, 827 F 3d at 837
110 Id.
111 Id. at 839
112 Id. at 837.
113 PRESSURE Warming Temperatures Are Altering Salmon Streams, STATE OF SALMON IN WATERSHEDS, https://stateofsalmon.wa.gov/executive-summary/challenges/climate/ (last visited Aug. 2, 2024
114 Pailthrop, supra note 105
only important for Tribes as part of their food system and economy, it is “a unifying factor for Native People and Nations across the Pacific Northwest.ˮ115
Conclusion
Colonization and climate change have long threatened Indigenous food sovereignty across the U.S., threatening traditional foodways and culture. To protect their food sovereignty, climate change needs to be recognized and addressed, especially in areas such as the Arctic where communities rely heavily on the weather for hunting and food storage
Additionally, action from the government in the form of laws, policies, and assistance programs is crucial to support traditional foodways
Indigenous food sovereignty is not only an issue in the U S but in many countries abroad The hope is that other governments and Indigenous communities can examine what the U S has done to uphold food sovereignty and, where it has fallen short, address issues with rights to food in their regions.
115 Pacific Coast Region, NATIONAL MUSEUM OF THE AMERICAN INDIAN, https://americanindian.si.edu/nk360/pnw-history-culture-regions/pacific-coast (last visited Aug. 2, 2024