Last month, Michigan officials announced plans to shut down acontroversial 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 foryears.

In the shutdown order, Whitmer referenced an 1836 treaty in which tribal nations ceded more than athird 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 states ability to honor that right, Whitmersaid.

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 andeducation.

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 wildrice.

If Native treaty rights had been honored, the natural landscape of the U.S. might look very differenttoday.

Catastrophic disruption to the natural world has taken place. The world would be a very different place if the treaties had been honored.

In recent years, some courts, political leaders and regulators have decided its time to start honoring those treaty obligations. Some legal experts think that asserting these rights could preventor even reverseenvironmentaldegradation.

Bryan Newland, chair of the Bay Mills Indian Community in Michigans Upper Peninsula, said Whitmers order was the first time he had seen political leaders cite treaty rights to support adecision instead of being forced to recognize those rights by acourt.

It is always astruggle to get state governments to recognize the existence of our treaties, our rights and their responsibilities to not impair those rights, he said. Its not enough to recognize our right to harvest. State governments have aresponsibility to stop harming and degrading this fishery. This was abig step in tribal-staterelations.

Attorney Bill Rastetter, who represents the Grand Taverse Band of Ottawa and Chippewa Indians, another Michigan tribe, said tribal members invoking atreaty can make astronger legal claim than non-Native citizens raising the same issue as an environmentalcomplaint.

With environmental claims, there is sometimes abalancing test thats applied between the potential harm and potential good, said Rastetter, who has been part of efforts opposing the pipeline in Michigan. But when youre dealing with the diminishment of aright reserved by tribes, there ought not to be that balancingtest.

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 apainstaking process to use treaty rights to make adent in centuries worth of construction, resource extraction and government practices conditioned to ignore thoserights.

Some legal experts are also wary about making sweeping treaty assertions, for fear that coming up short could set adangerousprecedent.

Theres been an effort to try to be careful about what you give acourt 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 aclaim, but we have to go through the pragmatic analysis of how it may workout.

And many political leaders remain hostile to tribal sovereignty. South Dakota Gov. Kristi Noem, aRepublican, has sought to prevent tribes in her state from setting up COVID-19 safety checkpoints on the roads entering theirreservations.

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 injeopardy.

Still at the TailEnd

The foundation for contemporary treaty claims is alandmark 1974 case known as the Boldt decision, aruling issued in afederal district court and upheld by an appeals court. The case affirmed that tribes in Washington state have aright 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 Washingtons fisheries along with state wildlifeofficials.

We can't continue our lifeway if that river dies, if the fish go extinct, and that's whats happening. 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?

It started bringing to light the fact that these treaties arent ancient history, said John Echohawk, founder and executive director of the Native American Rights Fund, atribal advocacy group that successfully litigated the case. Theyre the supreme law of the land. If the courts are going to be enforcing those rights, [political leaders] have got to payattention.

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 acost of billions of dollars. The ruling held that Washington couldnt uphold its treaty obligations to the tribes simply by allowing access to waters where it had already destroyed thefishery.

Legal experts say that decision has changed the landscapemotivating political leaders in many states to consider whether their decisions could affect treaty-protected hunting, fishing or gatheringrights.

You cant have ameaningful right to take fish without fish, said Riyaz Kanji, aleading Indian law attorney based in Michigan, and afounding 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 increasingcurrency.

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 rivers dwindling salmon runs. Amy Cordalis, general counsel and member of Californias Yurok Tribe, said tribal fishing rights played apivotal role in forcing the states toact.

We cant continue our lifeway if that river dies, if the fish go extinct, and thats whats happening, Cordalis said. The last generation of Indian peoples fight was just for the right. My generations fight is to conserve the resource on which the right is based. If we dont have any fish, what good is theright?

Restorative justice was a key reason for the dam removal, Richard Whitman, director of the Oregon Department of Environmental Quality, said in astatement provided to Stateline. These tribes have suffered repeated efforts to take their land, their waters, and their fisheries, and restoring afree-flowing river is ahistoric reversal that will begin to move the basin back to sustainability forall.

Regulators at state and federal agencieswhich make thousands of permitting decisions about development, resource use and environmental compliancehave begun taking notice aswell.

In 2016, the U.S. Army Corps of Engineers rejected aproposed 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 coaldust.

The U.S. governmentas an immigrantcame to us in 1855 and entered into apartnership, said Jay Julius, aformer chair of the Lummi Nation who was serving as acouncil member at the time of the coal terminal battle. Weve been faced with afailure 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 avery different place if the treaties had beenhonored.

We werent at the table as this pollution-based economy was being developed. What were witnessing right now is were actually at the table, but were still at the tailend.

Regulators and courts dont always give the same credence to treaty claims. The Army Corps approved construction of acontroversial 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 ajudge earlier this year shut down the pipeline to allow further environmentalreview.

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OtherBattles

While much of tribes recent progress has centered around environmental issues, treaty claims on several other fronts could reshape the U.S. governments relationship with Nativetribes.

Earlier this year, ajudge 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 atreaty surrendering much of theirland.

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, aformer 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 atime where treaty rights are being more respectedat least by the courtsystem.

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 its been plagued with scandals. For years, IHS hired dozens of doctors with ahistory of malpractice, leading to disastrous consequences. It has also come under fire for mishandling sex abuseallegations.

Johnson said the problems at IHS could represent atreaty violation, but tribes have been so overwhelmed with fighting the Covid-19 pandemicwhich has had adevastating toll in Indian Countrythat the issue has yet to come forward as alegal 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 healthsystems.

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 outsideauthorities.

The courts over time have chipped away at tribal powers on reservations, he said. Theres real tension between what the courts have done and what the courts are saying now. There will be achance to revivify tribal authority withinreservations.

Some of that hope stems from the U.S. Supreme Courts 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, amajor win for those who argue that treaties arent just ancient history. In effect, the decision prevents Native defendants from being tried in state courts for crimes committed onreservations.

LookingAhead

Some tribal leaders are hopeful that treaty rights could see even greater recognition when President-elect Joe Biden takesoffice.

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. Theres absolutely nothing to stop an executive branch agency from adopting this as its ownpolicy.

Bidens pledge to select adiverse cabinet has also drawn praise. Many are hopeful he will choose New Mexico Democratic Rep. Deb Haaland, amember of the Laguna Pueblo tribe, to lead the Interior Department, which oversees government programs relating to NativeAmericans.

Treaty claims will still face significant obstacles, including acourt system shaped by President Donald Trumps 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 its difficult to make improvements without Congress providing more money to the Indian HealthService.

Undoing whats already been done could prove difficult. Its been 40years since the Supreme Court ruled that the U.S. illegally stole South Dakotas Black Hills from the Sioux Nation in violation of their treaty agreement. Instead of returning the land, the court ordered apayment of $100 million in reparations. The tribe has refused to accept the paymentsaying it will settle for no less than the restoration of the landbut there are no signs the territory is close to changinghands.

Still, some Natives say theyve 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 finallyhonored.

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 togetherhealthy ecosystems, clean water, healthy forests and rivers. You would start seeing the planet regenerating itself. Its one way we start pulling ourselves out of the climate crisis. We start asserting rights that protectnature.

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Recognition of Native Treaty Rights Could Reshape the Environmental Landscape - In These Times