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 Taverse 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 Gov. 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’s 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.

Oth­er Battles

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.

Look­ing Ahead

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 Rep. 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.”