Abstract

Excerpted From: Jessica L. Gibree, Preserving Sacred Ground: Valuing Culture in Compensation for Indigenous Peoples, 42 Quinnipiac Law Review 429 (2024) (188 Footnotes) (Full Document Requested)

When private parties cause harm to Indigenous land, United States courts do not compensate Indigenous People for their resulting loss of culture even though, for many Indigenous Peoples, land is a sacred part of their identity. Their cultural heritage relies on and is intimately tied to the natural environment. Thus, harm to Indigenous land significantly impacts Indigenous Peoples' interactions with nature, ability to participate in cultural practices, and even their survival. Accordingly, when courts exclude loss of culture from compensation for Indigenous Peoples, they fail to provide compensation for the entire injury at issue.

An estimated 9.7 million Indigenous People live in the United States and Alaska Natives are one group of Indigenous People for whom environmental harm has severely impacted their culture. Massive oil spills in Alaska have destroyed ecosystems and forced Alaska Natives to abandon their way of life. Alaska Natives living in oil-contaminated areas cannot participate in cultural practices, such as fishing or harvesting, nor can they pass down traditional practices to future generations of Natives. But when the Court of Appeals for the Ninth Circuit compensated the Alaska Natives for the harm that the oil spill caused, it denied monetary compensation for loss of culture and reasoned that the harm is not unique to Alaska Natives. The Ninth Circuit's ruling set precedent in the United States, but international courts have taken a different approach.

One international tribunal has recognized the importance of compensating Indigenous Peoples for loss of culture and ordered the United States to pay cultural damages. Throughout the 1940s and 1950s, the United States conducted nuclear tests in the Marshall Islands. The tests severely contaminated the Marshall Islands with radioactive waste and forced the People of Enewetak Atoll and Bikini Atoll to relocate to other islands and atolls where they had to adapt to new cultures and ways of living. Due to the extent of radioactive contamination, even people who remained on their native atolls suffered significant loss of culture because they could no longer fish, hunt, or harvest natural resources that they traditionally relied on for survival. Today, several atolls must rely on food imports from the United States. The People of the Marshall Islands suffered and continue to suffer great hardships as a result of the nuclear testing program, including starvation, disease, and loss of spiritual connection to their land. In recognition of the Marshall Islanders' unique injuries, the Nuclear Claims Tribunal awarded the plaintiffs $888,264,811 including compensation for loss of culture.

Section II of this note will provide background on the connection between Indigenous Peoples and the natural environment, the history of colonialism in the United States, and current threats to Indigenous culture. Section III analyzes cases in the United States where courts excluded cultural considerations, specifically the Exxon Valdez oil spill litigation. Section IV introduces the Marshall Islands case from the Nuclear Claims Tribunal to demonstrate international recognition of cultural damages. Section V analyzes United States statutes and international law to demonstrate general acceptance that Indigenous culture is unique from non-Indigenous culture. Section VI concludes that United States courts should recognize loss of culture as a unique category of damages available to Indigenous Peoples who suffer from inference with their connection to land.

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In conclusion, there are three key takeaways. First, when wrongdoers cause environmental harm on Indigenous land, Indigenous People suffer from loss of their ability to participate in traditional cultural practices, which is a special and concrete injury. Land is uniquely special to many Indigenous Peoples in the United States because they inextricably link their traditional, cultural, and spiritual values to the natural environment. Both federal and international law support the finding that loss of culture is an injury unique to Indigenous Peoples. Currently, common occurrences such as pipeline installations, negligent oil spills, mining operations, and climate change place Indigenous People at increased risk for losing their culture.

Second, courts across the United States deny Indigenous Peoples compensation for loss of culture in cases where environmental harm injures their ability to engage in traditional practices such as subsistence living. At least one international tribunal, however, recognized the importance of compensating for loss of culture. Third, excluding cultural damages from compensatory awards in such cases fails to make injured Indigenous plaintiffs whole and is inconsistent with the goal of compensation. Furthermore, cultural damages are not unusually hard to value.

Thus, in order to be consistent with the goals of the United States legal system and to create a more just and equitable system for historically disadvantaged groups, United States courts should depart from the ruling in In re Exxon Valdez and adopt the practice of compensating Indigenous Peoples for loss of culture when environmental harm injures their ability to engage in traditional practices.

Law Student at Quinnipiac University School of Law, J.D., 2024; Vermont Law and Graduate School, M.E.L.P. candidate, 2024; B.A. in Law in Society, 2021, Quinnipiac University, Dual-Degree B.A./J.D. 3+3 program.