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Recognition of Native Treaty Rights Could Reshape the Environmental Landscape
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=57375"><span class="small">Alex Brown, Stateline</span></a>   
Tuesday, 08 December 2020 09:10

Excerpt: "The U.S. has largely ignored the nearly 400 treaties signed with tribal nations, but that may be starting to change. And some think that could prevent, or even reverse, environmental degradation."

People protest in San Francisco in solidarity with the Standing Rock Lakota tribe's fight against the Dakota Access Pipeline. (photo: Pax Ahimsa Gethen)
People protest in San Francisco in solidarity with the Standing Rock Lakota tribe's fight against the Dakota Access Pipeline. (photo: Pax Ahimsa Gethen)

Recognition of Native Treaty Rights Could Reshape the Environmental Landscape

By Alex Brown, Stateline

08 December 20

The U.S. has largely ignored the nearly 400 treaties signed with tribal nations, but that may be starting to change. And some think that could prevent, or even reverse, environmental degradation.

ast month, Michi­gan offi­cials announced plans to shut down a con­tro­ver­sial oil pipeline that runs below the Great Lakes at the Straits of Mack­inac. Gov. 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 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.

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.” your social media marketing partner