Edi­tor’s Note: This sto­ry was orig­i­nal­ly pub­lished 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. 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 18^th and 19^th 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.