This article was produced by Stateline, an initiative of The Pew Charitable Trusts.
Last month, Michigan officials announced plans to shut down a controversial oil pipeline that runs below the Great Lakes at the Straits of Mackinac. Governor Gretchen Whitmer and Attorney General Dana Nessel, both Democrats, cited several reasons for the decision, including one that got the attention of tribal leaders in Michigan who have been fighting the pipeline for years.
In the shutdown order, Whitmer referenced an 1836 treaty in which tribal nations ceded more than a third of the territory that would become Michigan in exchange for the right to hunt and fish on the land in perpetuity. An oil spill from the pipeline would destroy the state’s ability to honor that right, Whitmer said.
Federal and state officials signed nearly 400 treaties with tribal nations in the 18th and 19th centuries. Threatened by genocidal violence, the tribes signed away much of their land. But they secured promises that they could continue to hunt, fish and gather wild food on the territory they were giving up. Many treaties also include cash payments, mineral rights and promises of health care and education.
For the most part, the U.S. has ignored its obligations. Game wardens have targeted and arrested tribal members seeking to exercise their hunting and fishing rights. Governments and private interests have logged and developed on hunting grounds, blocked and polluted waterways with dams and destroyed vast beds of wild rice.
If Native treaty rights had been honored, the natural landscape of the U.S. might look very different today.
In recent years, some courts, political leaders and regulators have decided it’s time to start honoring those treaty obligations. Some legal experts think that asserting these rights could prevent—or even reverse—environmental degradation.
Bryan Newland, chair of the Bay Mills Indian Community in Michigan’s Upper Peninsula, said Whitmer’s order was the first time he had seen political leaders cite treaty rights to support a decision instead of being forced to recognize those rights by a court.
“It is always a struggle to get state governments to recognize the existence of our treaties, our rights and their responsibilities to not impair those rights,” he said. “It’s not enough to recognize our right to harvest. State governments have a responsibility to stop harming and degrading this fishery. This was a big step in tribal-state relations.”
Attorney Bill Rastetter, who represents the Grand Traverse Band of Ottawa and Chippewa Indians, another Michigan tribe, said tribal members invoking a treaty can make a stronger legal claim than non-Native citizens raising the same issue as an environmental complaint.
“With environmental claims, there is sometimes a balancing test that’s applied between the potential harm and potential good,” said Rastetter, who has been part of efforts opposing the pipeline in Michigan. “But when you’re dealing with the diminishment of a right reserved by tribes, there ought not to be that balancing test.”
Still, tribes have mostly used treaty rights claims to play defense against new infringements by developers and polluters. Some tribal members say new treaty violations are surfacing faster than old ones are being corrected. And it would be a painstaking process to use treaty rights to make a dent in centuries’ worth of construction, resource extraction and government practices conditioned to ignore those rights.
Some legal experts are also wary about making sweeping treaty assertions, for fear that coming up short could set a dangerous precedent.
“There’s been an effort to try to be careful about what you give a court the chance to decide,” Rastetter said. “If they decide against you, you might not get another bite at the apple. We have to not just have a claim, but we have to go through the pragmatic analysis of how it may work out.”
And many political leaders remain hostile to tribal sovereignty. South Dakota Governor Kristi Noem, a Republican, has sought to prevent tribes in her state from setting up Covid-19 safety checkpoints on the roads entering their reservations.
Meanwhile, the wording of many treaties leaves the fulfillment of some rights open to interpretation, and with Justice Amy Coney Barrett replacing Ruth Bader Ginsberg on the U.S. Supreme Court, the recent spate of favorable judicial rulings could be in jeopardy.
‘Still at the Tail End’
The foundation for contemporary treaty claims is a landmark 1974 case known as the Boldt decision, a ruling issued in a federal district court and upheld by an appeals court. The case affirmed that tribes in Washington state have a right to fish for salmon in off-reservation waters. It forced the state to abandon its attempts to block Native fishing, making the tribes co-managers of Washington’s fisheries along with state wildlife officials.
“It started bringing to light the fact that these treaties aren’t ancient history,” said John Echohawk, founder and executive director of the Native American Rights Fund, a tribal advocacy group that successfully litigated the case. “They’re the supreme law of the land. If the courts are going to be enforcing those rights, [political leaders] have got to pay attention.”
Treaty rights earned another milestone victory in 2018, with another case involving Washington tribes that reached the U.S. Supreme Court. That year, the court ordered the state to rip out and replace about 1,000 culverts that blocked the passage of migrating salmon, at a cost of billions of dollars. The ruling held that Washington couldn’t uphold its treaty obligations to the tribes simply by allowing access to waters where it had already destroyed the fishery.
Legal experts say that decision has changed the landscape—motivating political leaders in many states to consider whether their decisions could affect treaty-protected hunting, fishing or gathering rights.
“You can’t have a meaningful right to take fish without fish,” said Riyaz Kanji, a leading Indian law attorney based in Michigan, and a founding member of the firm that successfully argued the culvert case. “The notion that tribal treaty rights should be factored into government decision-making is gaining increasing currency.”
The strength of that argument was on display again last month, when leaders in Oregon and California announced plans to remove four dams on the Klamath River. The dam removal will reopen hundreds of miles of the Klamath and its tributaries to restore the river’s dwindling salmon runs. Amy Cordalis, general counsel and member of California’s Yurok Tribe, said tribal fishing rights played a pivotal role in forcing the states to act.
“We can’t continue our lifeway if that river dies, if the fish go extinct, and that’s what happening,” Cordalis said. “The last generation of Indian people’s fight was just for the right. My generation’s fight is to conserve the resource on which the right is based. If we don’t have any fish, what good is the right?”
Restorative justice was a “key reason” for the dam removal, Richard Whitman, director of the Oregon Department of Environmental Quality, said in a statement provided to Stateline. “These tribes have suffered repeated efforts to take their land, their waters, and their fisheries, and restoring a free-flowing river is a historic reversal that will begin to move the basin back to sustainability for all.”
Regulators at state and federal agencies—which make thousands of permitting decisions about development, resource use and environmental compliance—have begun taking notice as well.
In 2016, the U.S. Army Corps of Engineers rejected a proposed coal export terminal in Washington state not far from the Canadian border. The port, just north of the Lummi Nation reservation, would have brought giant freighters into waters where Lummi people have fished for thousands of years and have rights to fish today. Those opposed to the terminal also worried about disturbances to archaeological sites and pollution from coal dust.
“The U.S. government—as an immigrant—came to us in 1855 and entered into a partnership,” said Jay Julius, a former chair of the Lummi Nation who was serving as a council member at the time of the coal terminal battle. “We’ve been faced with a failure to honor the contract, the treaty, the supreme law of the land. Catastrophic disruption to the natural world has taken place. The world would be a very different place if the treaties had been honored.
“We weren’t at the table as this pollution-based economy was being developed. What we’re witnessing right now is we’re actually at the table, but we’re still at the tail end.”
Regulators and courts don’t always give the same credence to treaty claims. The Army Corps approved construction of a controversial section of the Dakota Access Pipeline in 2017 despite concerns it could jeopardize water, fishing and hunting rights for the Standing Rock Sioux Tribe in South Dakota. The pipeline battle has gone back and forth in the courts. It was completed and began operating in 2017, but a judge earlier this year shut down the pipeline to allow further environmental review.
While much of tribes’ recent progress has centered around environmental issues, treaty claims on several other fronts could reshape the U.S. government’s relationship with Native tribes.
Earlier this year, a judge ruled that federal agencies violated their treaty obligations when they shut down an emergency room on the Rosebud Sioux reservation in South Dakota. The U.S. pledged to provide health care to the tribe in 1868 when tribal leaders signed a treaty surrendering much of their land.
“One of the great misconceptions is that these treaty rights were some sort of gift or act of kindness from the federal government,” said Brendan Johnson, a former U.S. attorney who represented the tribe in the case. “In reality, these were bargained rights given to tribes to cease military actions. The tribes paid dearly in blood and treasure by way of land. We do find ourselves in the midst of a time where treaty rights are being more respected—at least by the court system.”
Many tribes have similar health care provisions in their treaties, which the federal government largely tries to honor by funding the Indian Health Service. Advocates say the agency is severely underfunded, and it’s been plagued with scandals. For years, IHS hired dozens of doctors with a history of malpractice, leading to disastrous consequences. It has also come under fire for mishandling sex abuse allegations.
Johnson said the problems at IHS could represent a treaty violation, but tribes have been so overwhelmed with fighting the Covid-19 pandemic—which has had a devastating toll in Indian Country—that the issue has yet to come forward as a legal case.
“[Native] health care has been embarrassingly inadequate,” he said. “We need Congress to be aware of this and to take action to fully fund tribal health systems.”
Kanji, the Indian law expert, said he expects to see tribes pushing to reassert regulatory and jurisdictional authority on their own reservations, where many have seen key matters of sovereignty handed to outside authorities.
“The courts over time have chipped away at tribal powers on reservations,” he said. “There’s real tension between what the courts have done and what the courts are saying now. There will be a chance to revivify tribal authority within reservations.”
Some of that hope stems from the U.S. Supreme Court’s landmark McGirt Decision, issued earlier this year. The ruling recognized Native reservations across much of Oklahoma that had long been treated as defunct by state and federal authorities, a major win for those who argue that treaties aren’t just “ancient history.” In effect, the decision prevents Native defendants from being tried in state courts for crimes committed on reservations.
Some tribal leaders are hopeful that treaty rights could see even greater recognition when President-elect Joe Biden takes office.
“We would like to see an administrative process where they have to examine the impact of an action on our treaty rights so that we can avoid a [legal battle] like the [Washington state] culverts case,” said Newland, the Bay Mills chairman. “There’s absolutely nothing to stop an executive branch agency from adopting this as its own policy.”
Biden’s pledge to select a diverse cabinet has also drawn praise. Many are hopeful he will choose New Mexico Democratic Representative Deb Haaland, a member of the Laguna Pueblo tribe, to lead the Interior Department, which oversees government programs relating to Native Americans.
Treaty claims will still face significant obstacles, including a court system shaped by President Donald Trump’s record appointment of judges. Even in cases where the tribes have won, progress has been slow. Lawmakers in Washington have yet to provide adequate funding to replace the culverts as ordered by the courts. Courts may find that health care shortcomings violate treaty rights, but it’s difficult to make improvements without Congress providing more money to the Indian Health Service.
Undoing what’s already been done could prove difficult. It’s been 40 years since the Supreme Court ruled that the U.S. illegally stole South Dakota’s Black Hills from the Sioux Nation in violation of their treaty agreement. Instead of returning the land, the court ordered a payment of $100 million in reparations. The tribe has refused to accept the payment—saying it will settle for no less than the restoration of the land—but there are no signs the territory is close to changing hands.
Still, some Natives say they’ve been heartened by the focus on racial injustice spurred by the Black Lives Matter protests, and by the 2016 protests against the Dakota Access Pipeline, which brought international attention to tribal sovereignty. And many find optimism when they envision what the landscape could look like if their rights were finally honored.
“What does the world look like if those treaty rights are protected?” asked Cordalis, the Yurok attorney. “We start healing our environment and start seeing things being put back together — healthy ecosystems, clean water, healthy forests and rivers. You would start seeing the planet regenerating itself. It’s one way we start pulling ourselves out of the climate crisis. We start asserting rights that protect nature.”